More Government Agencies Filing Lawsuits Against Public Records Requesters

from the Exhibit-A:-photo-of-extended-middle-finger dept

Gritted-teeth lip service to freedom of information laws continues in the public sector. If stonewalling and/or outrageous fee demands aren’t enough to dissuade requesters from seeking documents, more and more government agencies are deploying Plan C.

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.

All well and good no damages are being sought, but what happens to the requesters-turned-defendants? The records they originally sought might have been had for little to nothing, in terms of out-of-pocket expenses. But now, thanks to the actions of government agencies, they’re obliged to rack up expenses fighting the lawsuit, or otherwise cede the battle to the government and never get their hands on the requested records.

Those deploying this tactic say there’s nothing wrong with proactive lawsuits against records requesters. According to these entities, the courts can make the best determination whether requested records are eligible for release.

But they’re wrong.

Records requesters have the option to sue when records are denied and the court can make the determination then. This leaves the power in the hands of the people, who can choose whether or not they want to make the time/money investment of filing a public records lawsuit. If they succeed, the government can be forced to pay their legal fees.

Skipping this step puts the burden solely on the requesters. They have to front their own legal costs and, because the government is the moving party, they have zero chance of recouping legal fees even if the court finds in favor of the records requesters.

If nothing else, the tactic greatly increases the delay between the request and the delivery of records. In newsworthy cases, the preemptive lawsuit option can least put some time and distance between government misconduct and records revealing the misdeeds. It’s nothing more than a low-risk cheap shot that that makes a mockery of public records laws.

Fortunately, the AP reports, changes are being made to public records laws to prevent the government from engaging in these transparency-thwarting efforts.

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.

But there are only a couple of exceptions to the rule. And the bill in Michigan has yet to be signed into law. For the most part, the government only risks some reputational damage when suing records requesters. Most don’t have much to spare, but are more than willing to part with it if it means keeping the public in the dark.

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Comments on “More Government Agencies Filing Lawsuits Against Public Records Requesters”

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Ninja (profile) says:

“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.”

Good to see at least this has legislative support.

Now, we need to make court expenses to be handled by the government and then ‘awarded’ to the losing party. This would do wonders to balance the scales of justice.

Anonymous Coward says:

Re: Re: Re:

Whateverocracy has always been and will continue to be ..
of the rich folk, by the rich folk, for the rich folk

Another idiosyncrasy of Whateverocracy ..
privatized profits and socialized losses

It is amazing how some of the less fortunate are fooled into believing the rhetoric of the rich blaming everyone but themselves for things that they have done and/or are responsible for.

Christenson says:

Judges should refuse to rule

You know, if it’s important enough for the government to file a lawsuit, it’s probably releasable.

Judges, I hope you will follow this outline:
1) I won’t review unless the documents are filed under seal with the court.
2) It’s important enough to sue over. There should be a heavy presumption that the documents should be released.
3) A ruling that the government doesn’t have to release the records should not be available unless there has been an adequate “defense” in this case. To do otherwise is a manifest injustice, and an abuse of the court’s discretion.

madasahatter (profile) says:

Re: Judges should refuse to rule

If I were judge and faced one of these lawsuits, I would try to find a way to rule:
1. the information originally requested be turned over to the defendant under discovery rules.
2. the state must pay the defendant’s legal costs. The person signing the lawsuit for the state faces whatever criminal charges can be found and is personally liable for civil damages payable to the defendant.

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