New se­crecy tac­tic: su­ing peo­ple who seek public records

The Trentonian (Trenton, NJ) - - NEWS - By Ryan J. Fo­ley

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 free­do­mof-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.

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