Disturbing trend: local governments engage in lawfare, suing public records requesters

Disturbing trend: local governments engage in lawfare, suing public records requesters

The right of the private citizenry to make a public record request has, at least until recently, required local and federal governments to maintain a certain level of transparency. But a disturbing new trend has private citizens and even journalists flummoxed.

In Louisiana, Michigan, Kentucky, and Oregon, individuals requesting public records have been sued by the agencies whose documents they requested. This new lawfare front has successfully kept public records out of the hands of requestors and made others think twice before making FOIA (Freedom of Information Act) requests.

The Associated Press reports:

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.

The legal remedy in most of these cases allows for the requestor to file a complaint if they believe their request was wrongfully denied. But even that’s a gamble. There’s no guarantee that a judgment, even one that requires release of the requested records, will also require the stubborn government agency to pick up the legal fee tab.

Mike Deshotels, a Louisiana-based retired educator, learned the lawfare lesson the hard way. The AP continued:

“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.

In response, the this new wave of lawfare, some states are intervening.

The Michigan House passed a bill that prohibits agencies from filing suit against records requesters. That bill has stalled in committee.

The Portland school that sued records requesters is being audited. From The Register-Guard:

Oregon’s secretary of state said his office will audit spending by Portland Public Schools, in part because of the district’s decision to sue people who requested public records.

…Secretary of State Dennis Richardson told the Oregonian/OregonLive on Monday that Portland residents have complained to him about the district’s problems and that the public records lawsuit is one reason it deserves an audit.

The district filed a lawsuit in April against parent activist Kim Sordyl and journalist Beth Slovic, both of whom requested information about employees on paid leave. Sordyl said she believes the information, which has been released in the past, might expose lengthy and costly leaves for some employees accused of misconduct.

The district attorney has ruled that the records are public and should be released. The district said it filed its lawsuit as a way to appeal that decision, arguing the law is unclear and that releasing the information could jeopardize employees’ due process rights.

…In Oregon, Sordyl called the lawsuit an attempt to intimidate and retaliate against her, an allegation the district has denied.

Dave Northfield, a spokesman for the Portland school district, said Tuesday it would cooperate with the audit. He noted that an outside firm already conducts annual reviews of its finances.

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