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Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching

Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching

Unions suing to stop school district from releasing allegedly non-public information about union members, but a 2004 RI Supreme Court case held “APRA provides neither a right to prevent the release of private information … nor a remedy to compel nondisclosure”

Nicole Solas, a Rhode Island stay-at-home mother, first told her story at Legal Insurrection about her problems getting information about Critical Race and Gender teaching in the kindergarten to which her daughter was enrolled and other schools in South Kingstown.

We have tracked developments from the start, which are now a national story with no end in sight:

Things took an unexpected turn last week when two Rhode Island branches of the largest teachers union in the country, the National Education Association Rhode Island and NEA-South Kingstown, filed a lawsuit and motion for an emergency injunction against Solas and the school district and school committee from which she sought records. The lawsuit sought to prevent the district and school committee from turning over to Solas records the unions claim are private.

We covered the lawsuit and linked to the pleadings and motion papers in the following posts:

In that latter post, I expressed great skepticism upon my initial review of the lawsuit on several grounds, including the highly unusual attempt of the unions to intervene in a public records process to which they were not a party:

Third, I can’t say it’s unprecedented, but it’s very unusual for an entity (NEA-RI) that is not involved in the public records process to seek to intervene in that process. Normally, the way these disputes reach court is that the entity refuses to turn over records claiming an exemption, and the requester seeks a court ruling for disclosure. That is what happened in the main case relied upon by the unions, Lyssikatos. That’s not the case here. Solas has not filed a complaint seeking records withheld by the District. This is just so bizarre that without evidentiary support the unions would run into court seeking an emergency injunction over a public records process to which they are not a party. If this process is permitted, it opens the court to issuing advisory opinions on records that no party to the public records process actually seeks to disclose, based on the fears by non-parties to that process.

I may have been too kind to the unions’ case. They may not have standing to sue as a non-party to the public records process, even if they are right that some of the records are non-public; that’s another doubtful proposition since extraneous but non-exempt documents are still subject to the public records law if in the possession of a public entity. Ultimately the public/non-public distinction may not matter in this lawsuit.

There is a Rhode Island Supreme Court case that is going to have to be addressed, and which seems to sink the unions’ lawsuit. Ilana Cutler, Esq., Legal Insurrection Foundation Investigations Counsel, found the case, and it appears to be good law. And let’s just say I was shocked to find a case seemingly so on point and not addressed in the unions’ papers that it could present a major problem for the lawsuit.

The case is a 2004 Rhode Island Supreme Court case, In re New England Gas Co., 842 A.2d 545, 551–52 (R.I. 2004), in which the court found no right of a non-party to the public records process (in the position of the unions here) to seek to prevent disclosure of allegedly non-public information. That case even relied upon prior precident involving a different union’s attempt to intervene. Here are the key sections (emphasis added):

This case requires us to revisit the Access to Public Records Act (APRA), G.L. 1956 chapter 2 of title 38. On its face, the avowed purpose of the APRA is “to facilitate public access to governmental records which pertain to the policy making functions of public bodies and/or are relevant to the public health, safety, and welfare.” Section 38-2-1. We also have held that the APRA provides a remedy only to those people who are denied access to public records; it does not provide a remedy to prevent public agencies from disclosing recordsSee Pontbriand v. Sundlun699 A.2d 856, 867 (R.I. 1997); Rhode Island  Federation of Teachers, AFT, AFL-CIO v. Sundlun595 A.2d 799, 803 (R.I. 1991). Discerning no reason to deviate from these principles, and as the General Assembly has not seen fit to provide such a remedy, we reemphasize the strong public policy expressed in the APRA in favor of public disclosure.

***

We begin our analysis by noting that this Court has “long recognized that the underlying policy of the APRA favors the free flow and disclosure of information to the public.” Providence Journal Co. v. Sundlun616 A.2d 1131, 1134 (R.I. 1992) (citingProvidence Journal Co. v. Kane577 A.2d 661, 663 (R.I. 1990);Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady556 A.2d 556, 558 (R.I. 1989); Hydron Laboratories, Inc. v. Department of Attorney General492 A.2d 135, 137 (R.I. 1985); The Rake v. Gorodetsky452 A.2d 1144, 1147 (R.I. 1982)).

We also have made clear that the APRA provides neither a right to prevent the release of private informationPontbriand699 A.2d at 867, nor a remedy to compel nondisclosureRhode Island Federation of Teachers595 A.2d at 802. We reached this conclusion after a careful analysis of legislative intent and an examination of federal case law decided under the analogous Freedom of Information Act (FOIA). Pontbriand699 A.2d at 867. The Supreme Court of the United States has held that the FOIA was designed to enlarge disclosure by public agencies and that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown441 U.S. 281, 293 (1979).

Thus, the APRA exemptions, similar to those under the FOIA, allow public agencies to withhold documents, but do not require withholdingSee Tripp v. Department of Defense193 F. Supp.2d 229, 238 (D.D.C. 2002). Similarly, in Rhode Island Federation of Teachers595 A.2d at 802-03, we held that the APRA provides no remedy to compel withholding non-exempt information from the public:

“The similarity between FOIA, as interpreted, and APRA is striking. In both instances the Legislature has cast the public official as the guardian of exempted material. His or her discretion in respect to disclosure cannot be challenged by a private party. As in the  case at bar, if a remedy is to be provided, it must be provided by the Legislature and not by the court.

“Our statute, like the Federal FOIA statute, is directed solely toward requiring disclosure by public agencies and does not provide a reverse remedy to prevent disclosure.”

The parties are represented by able counsel. The unions’ counsel is a well-known RI litigator for union rights. Solas will be represented by the Goldwater Institute, which has deep experience with public records litigation. The school district and committee will be represented by a Rhode Island law firm that handles APRA responses, among other things, for numerous school districts. So I expect a lot of pixels to be spent over the implications of the New England Gas case ruling.

But unless there is something we’re not seeing, which is always possible, it’s hard to see how the unions overcome that 2004 RI Supreme Court ruling that holds persons or entities in the position the unions are in here have no right to sue to prevent disclosure of records, even if those records are “non-public.”

Stay tuned.

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Comments

“This is just so bizarre that without evidentiary support the unions would run into court seeking an emergency injunction over a public records process to which they are not a party.”

It may be there is something in those records so positively damning that everyone, even remotely connected, is coming together and doing everything they possibly can to stop them from being released,

    Rab in reply to UserP. | August 9, 2021 at 6:33 pm

    It would be the sort of thing I would very much wish to happen to a public-sector union. Fingers crossed!

    Subotai Bahadur in reply to UserP. | August 9, 2021 at 7:34 pm

    Which in today’s environment means that the precedent will be overlooked because of an emanation from a penumbra, and the information will be kept from the peasants.

    Subotai Bahadur

    SDN in reply to UserP. | August 9, 2021 at 10:38 pm

    It’s not hard. Get an Obama judge to grant it, and they can tie this thing up for years.,

      Sure, if we all sit around waiting for “the legal process” to do it all. This is why lies get half way around the world before the truth gets its pants on. Torches and pitchforks! Let’s find a few more Nicole Solas and tie THEM up! Raise a big stink everywhere and let it metastasize. Once this gets rolling, lets see if the resistance spreads everywhere before this country is taken over by communist transexuals.

    The “oops!” factor. In their hubris, they probably never anticipated that they would stub their toes over a single parent asking for the release of what is supposed to be public information. There sure seems to be a lot of desperate people doing desperate things these days.

    It occurs to me to wonder why more parents aren’t already following Nicole Solas’ lead and making the same demands of their own school committees. These Marxists are not prepared to defend their sand castles. Perfect time for more “torches and pitchforks” diplomacy.

Brave Sir Robbin | August 9, 2021 at 5:43 pm

Let me help the court here. I shall provide the opinion.

“In the 2004 Rhode Island Supreme Court case, In re New England Gas Co., 842 A.2d 545, 551–52 (R.I. 2004), the Court found no reason to deviate from these principles, and as the General Assembly has not seen fit to provide such a remedy, we reemphasize the strong public policy expressed in the APRA in favor of public disclosure, except that here, the court finds a compelling public interest to block release of the records sought by defendant Nicole Solas. Therefore, the court finds summary judgement for plaintiff and remands Ms. Solas to federal custody for an indeterminant period of solitary confinement. In addition, the court also finds that Donald Trump is a white racist insurrectionist, and that he, and all his supporters shall also be immediately remanded into federal custody for an indeterminant period of solitary confinement, as so pleases the court.”

That’s going to be a hurdle for the unions.

    The only hurdle that the unions deserve is the one you were stretched over when they drew your intestines when you were hung drawn, and quartered.

This looks like the legal equivalent of human wave assaults: bury them in so many lawsuits, so many lawyers,and so many OR campaigns that they run out of money and have to withdraw.

I wonder if RI has a mechanism for a frivolously sued party to recover damages?

    TX-rifraph in reply to Voyager. | August 9, 2021 at 9:53 pm

    Yes. It is the process. “Warning: We will punish anybody who does not submit!”

    It is not about substance.

    SDN in reply to Voyager. | August 9, 2021 at 10:39 pm

    Or they can use discovery to find out sources and witnesses for intimidation by SturmAntifa.

    How many lawsuits where they have no standing are they willing to file? The first one that is tossed for lack of standing will collapse that entire house of cards.

      That’s kind of why I’m seeing it as a human wave attack. It’s not necessarily going to win, and win or lose its going to be expensive.

      But even if the defenders have a good position, it is possible they may break and run anyways.

      That’s happened in the past, because people did not have access to wise council. I don’t think that’s going to happen here though. We’re getting more experienced and hardened to lawfare.

      Oberlin went splat when they tried it. I think we’re going to start seeing more and more groups doing the same.

I am all for crushing CRT-pushing ghouls, and this lady is fighting an amazing battle.
But on the topic of third-parties trying to prevent government agencies from disclosing information. We are a software company and frequently respond to requests for proposals by government agencies. We provide our application designs and financial statements. Let’s say our competitors request such submissions under FOIA. Maybe they have a legitimate reason – whether the winner got award fairly. Or maybe they want to get competitive information about our software design and functionality.
The point is that the agency has no interest in protecting our confidential information. Different states have different laws; and they usually notify us if we want to file for injunction – or if we want to mark some of materials confidential and get the requesting party go to court.
Obviously, I can’t imagine unions having *competitive* information in government files. But as a matter of principle, I have sympathy to third parties that try to block release of the information by government agencies.
I am not an attorney; so maybe I am reading this all wrong. Would love to get some legal eagles to comment!

    GWB in reply to virshu. | August 10, 2021 at 10:40 am

    In most cases you’re thinking of, there are legal requirements for protection of proprietary information built in. The same with PII – they are not allowed to give out your social security number just because of a FOIA request. One of the FOIA exemptions is something along the lines of “protected by law”.

theduchessofkitty | August 10, 2021 at 3:46 am

“Aquí hay gato encerrado.” [There’s an imprisoned cat here.]

Which I mean, the unions and the district are hiding something quite explosive here.

He who pays the piper calls the tune. Parents have the right to know what their kids are learning. We pay taxes for our kids’ education. We have the right to know the sheet music used by the piper to ensnare our kids into parading with him towards that cave in the mountains.

After all, we payed for the sheet music, damnit!

Its funny isnt it…Democrats are fond of saying “If you have nothing to hide or you are innocent then you have nothing to fear”.

If school boards and unions have nothing to hide then surely they should be happily providing all the information asked of them.

Strange world right!

ahad haamoratsim | August 10, 2021 at 5:19 am

To put it another way, it appears that the attorney society complaint may have violated a DR (sorry, showing my age) unless there is a good faith argument for extension of the law to permit this suit.

I have long lamented that judges have been so reluctant to award attorney fees in cases where rule 11 or the local equipment is violated.

Here the union is raising a legal challenge over something they should not care about. The lawsuit has nothing to do with pay or working conditions for the union members.

Likewise in our district, the teachers apparently are using the union to obstruct our efforts to implement a better (phonics-heavy) reading instruction method, rather than the mixed method they are using now. We have dyslexic students not learning to read because of this existing program, and the teachers care so much about not using the pure-phonics method that their union is obstructing. This has nothing to do with their pay or working conditions.

I don’t understand why teachers’ unions are getting involved in curriculum choices. Furthermore I believe such efforts should be slapped down hard, with sanctions if possible so they burn their fingers and don’t touch that stove again. State law and the choices of elected school boards should determine curriculum, not the preferences of teachers’ unions.

Some organization should organize parents to oppose CRT in the schools. They should monitor what is going on in their school and teach their children to report to them. They should require schools reject racism.

The simple argument is to echo MLK’s words that people should be judged by the content of their character not the color of their skin. Have school officials and politicians promise to uphold this great man’s word throughout the educational system. Anyone who violates it should be fired.

Has this case been cited by the lawyers for Solas? If not, why not?

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