GOVERNMENTS TURN TABLES BY SUING PUBLIC RECORDS REQUESTERS
republished below in full unedited for informational, educational, and research purposes:
http://www.spokesman.com
IOWA CITY, Iowa – An Oregon parent wanted details about school
employees getting paid to stay home. A retired educator sought data
about student performance in Louisiana. And college journalists in
Kentucky requested documents about the investigations of employees
accused of sexual misconduct.
Instead, they got something else: sued by the agencies they had asked for public records.
Government bodies are increasingly turning the tables on citizens who
seek public records that might be embarrassing or legally sensitive.
Instead of granting or denying their requests, a growing number of
school districts, municipalities and state agencies have filed lawsuits
against people making the requests – taxpayers, government watchdogs and
journalists who must then pursue the records in court at their own
expense.
The lawsuits generally ask judges to rule that the records being
sought do not have to be divulged. They name the requesters as
defendants but do not seek damage awards. Still, the recent trend has
alarmed freedom-of-information advocates, who say it’s becoming a new
way for governments to hide information, delay disclosure and intimidate
critics.
“This practice essentially says to a records requester, ‘File a
request at your peril,’ ” said University of Kansas journalism professor
Jonathan Peters, who wrote about the issue for the Columbia Journalism
Review in 2015, before several more cases were filed. “These lawsuits
are an absurd practice and noxious to open government.”
Government officials who have employed the tactic insist they are
acting in good faith. They say it’s best to have courts determine
whether records should be released when legal obligations are unclear –
for instance, when the documents may be shielded by an exemption or
privacy laws.
At least two recent cases have succeeded in blocking information while many others have only delayed the release.
State freedom-of-information laws generally allow requesters who
believe they are wrongly denied records to file lawsuits seeking to
force their release. If they succeed, government agencies can be ordered
to pay their legal fees and court costs.
Suing the requesters flips the script: Even if agencies are
ultimately required to make the records public, they typically will not
have to pay the other side’s legal bills.
“You can lose even when you win,” said Mike Deshotels, an education
watchdog who was sued by the Louisiana Department of Education after
filing requests for school district enrollment data last year. “I’m
stuck with my legal fees just for defending my right to try to get these
records.”
The lawsuit argued that the data could not be released under state
and federal privacy laws and initially asked the court to order
Deshotels and another citizen requester to pay the department’s legal
fees and court costs. The department released the data months later
after a judge ruled it should be made public.
Deshotels, a 72-year-old retired teachers union official who authors
the Louisiana Educator blog, had spent $3,000 fighting the lawsuit by
then. He said the data ultimately helped show a widening achievement gap
among the state’s poorest students, undercutting claims of progress by
education reformers.
The lawsuits have been denounced by some courts and policymakers. A
New Jersey judge in 2015 said they were the “antithesis” of open-records
policies and dismissed a case filed by a township against a person who
requested police department surveillance video footage.
In Michigan, the state House voted 108-0 earlier this year in favor
of a bill that would make it illegal for agencies to sue public records
requesters. The proposal came in response to a county’s lawsuit against a
local newspaper that had sought the personnel files of two employees
running for sheriff. A judge dismissed the lawsuit, saying the county
had to approve or deny the request.
The documents, ultimately released days before the election, showed
that one of the candidates had been disciplined for carrying on an
affair while on-duty in 2011. That candidate lost.
The Michigan bill’s sponsor, Republican Rep. Klint Kesto, called the
tactic “a backdoor channel to delay and put pressure on the requester”
that circumvents the state’s Freedom of Information Act.
“Government shouldn’t file a lawsuit and go on offense. Either
approve the request or deny it,” he said. “This shouldn’t be happening
anywhere in the country.”
As his bill remains pending in a state Senate committee, Michigan
State University filed a lawsuit May 1 against ESPN after the network
requested police reports related to a sexual assault investigation
involving football players. That and a number of other cases are
currently unfolding.
In April, the Portland, Oregon, school district filed a lawsuit
against parent Kim Sordyl, who is seeking records about employees on
leave for alleged misconduct after the disclosure that one psychologist
had been off for three years. Sordyl said she believes the information
will expose costly missteps by district human resources officials and
lawyers, and the district attorney has already ordered the records to be
released.
“They are going to great lengths to protect themselves and their own
mismanagement. This is retaliation,” said Sordyl, who has hired an
attorney. “Most people would give up.”
A district spokesman said the lawsuit, which also names a journalist
who requested similar information, amounts to an appeal “in an area of
public records law that we believe lacks clarity.”
“When this information is released prematurely, the district’s
position is that the employees’ right to due process is jeopardized,”
spokesman Dave Northfield said.
The University of Kentucky prevailed in January when a judge blocked
the release of records sought by its student newspaper detailing the
investigation of a professor who resigned after being accused of groping
students.
The judge agreed with the university that the records would violate
the privacy rights of students who were victims even if their names were
redacted.
While that ruling is on appeal, Western Kentucky University filed a
similar lawsuit against its paper, the College Heights Herald, which
sought records related to allegations of sexual harassment and assault
involving employees. Several other state universities released similar
documents to the newspaper, and the state attorney general has ruled
that they are public records.
“It’s not a good feeling knowing that we are being sued,” said Herald
editor-in-chief Andrew Henderson, whose publication has been raising
money to pay legal fees. “I just hope that something beneficial comes
out of all of this for everyone involved.”