Oregon Lawmaker Wants Public Records Requesters To Tell Gov't Agencies What They Plan To Do With Released Documents

from the we'll-decide-what's-acceptable-use dept

As if government agencies needed any new ways to thwart accountability and transparency. Oregon legislators are introducing a host of alterations to the state’s public records law, but one of those looks like nothing more than an easily-abusable tool to be wielded against public records requesters. Jessie Gomez of MuckRock has more details:

Senate Bill 609, sponsored by Senator Betsy Johnson (D-Scappoose) at the request of former Representative Deborah Boone, would require requesters to disclose the intended use for records being requested with any state agency. Boone believes the bill would help eliminate requests that [seek] personal information.

“There are so many requests for emails and texts, sometimes tens of thousands, that require hours of someone’s time to research and at present the requestor does not have to disclose what they intend to do with the information,” said Boone via email to MuckRock.

What Boone appears to be concerned about is public records requesters obtaining documents containing personal info and using this info to… well, it’s kind of left up to the imagination Here’s another quote from Boone that doesn’t do much to clear up the bill’s purpose.

It seems reasonable to ask that the requestor to disclose what they intend to do with the information, some of which can be of a personal nature.

It actually isn’t reasonable to ask this question. There may be an extremely tiny subset of records requesters who seek to extract personal info from public records to engage in harassment or some other form of criminal activity. But it seems someone doing this wouldn’t be honest about their intentions even if required to inform a government agency about their plans for the requested documents.

What it will do is allow agencies to unilaterally refuse to release documents to requesters who give them reasons they don’t like. The bill doesn’t even hint at what would be considered unacceptable use for public records, which means agencies are free to explore the outer limits of the undefined term, leaving requesters with little recourse but lengthy appeals and expensive litigation.

Even better (from the perspective of public servants who dislike serving the public), agencies will be able to compile secret blacklists from which to serve up request rejections, claiming the requester’s stated reason for seeking documents is not one of the ones they find acceptable.

Rep. Boone is leaving her office so this is a parting gift for the government she’s leaving behind. Don’t think it will survive a Constitutional challenge if it ever becomes law, but for now, it’s a turd floating in legislative stream.

The stream’s not completely ruined, though. There’s some good news for records requesters as well.

Other bills include reducing request fees by 50 percent for news media, prohibiting the use of personal email for official business, and awarding attorney fees when agencies fail to respond to record requests.

The best thing the legislature could do is send Boone’s bill to her home address postage-due.

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Comments on “Oregon Lawmaker Wants Public Records Requesters To Tell Gov't Agencies What They Plan To Do With Released Documents”

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That Anonymous Coward (profile) says:

“It seems reasonable to ask that the requestor to disclose what they intend to do with the information, some of which can be of a personal nature.”

I invite you to ask the officer why he wants your information before providing it to him, lemme know how that works out for you.

Wacky idea… don’t use your job account for personal matters & don;t use your personal account for job matters… ohhh look your imaginary problem just went away.

I think people need to file mass requests Former Rep. Boone’s details… she obviously is trying to hide something hugely damning… why else would she throw up a bill that will cost the tax payers so much more to fight in court when its clear it won’t survive.

That One Guy (profile) says:

'Airing your dirty laundry, what else?'

‘Double-checking to make sure that you’re still working for the public, and working in it’s best interests’ would be the first explanation that comes to mind.

‘None of your damn business so long as the request is legal’ would be a close second.

Anyone who actually had nefarious intent would almost certainly have much easier ways to get that sort of data, and even if they had to go through that process there’s this little thing that anyone in politics should be well aware of called ‘lying’, such that the only people this proposed law is likely to trip up are honest people looking for records that might be a pain, embarrassing, and/or incriminating.

Anonymous Coward says:

I really don’t see the problem here.

Please describe the information you are requesting as detailed as possible: I need the email communications of Senator Betsy Johnson between the dates of 1/1/2019 and current.

What do you intend to do with the information: Read it.

Where’s the problem?

Anonymous Coward says:

How does it work? The Hillary Case.

How is this law supposed to work?
Consider the case of the Hillary Clinton Tapes

Not to mention collecting a whole new set of public documents on requesters.

And not to mention the problem of the chain of custody of the documents.

And not to mention indemnification agreements on when obtaining the documents.

And not to mention the problem of determining culpability.

If 100 people obtained the same document directly from the gov., and each sold 100 copies on ebay with no user agreement, and only one third-party posted it on the internet, how much does it cost to find out whose fault it is that it was published?



‘The Archetype of Censorship:’ U of A Revokes Access to Public Clinton Archives
June 19, 2014 Nic Horton and Caleb Taylor


Washington Free Beacon suspended from Clinton archives


June 19, 2014
Ms. Carolyn Henderson Allen Dean of Libraries University of Arkansas 365 N. McIllroy Avenue Fayetteville, AR 72701-4002 Re:
Washington Free Beacon

Dear Dean Henderson Allen:
Covington & Burling represents the Washington Free Beacon, and I write in response to your June 17, 2014 letter, in which you demand that my client remove audio recordings from its website and state that you are suspending the right of Free Beacon’s journalists to conduct research in your public library.


June 19, 2014

A Hillary Clinton donor who serves as dean of the University of Arkansas libraries has banned the Washington Free Beacon from the school’s special collections archives, after the news outlet published revealing stories about Hillary Clinton based on documents available at the university library…


Message regarding Special Collections June 20, 2014
Statement from University Libraries:
There is a lot of misunderstanding and misinformation regarding a claim that The Washington Free Beacon was “banned” from Special Collections. The issue is that this media outlet failed to comply with standard library policies followed across the nation…


Note: Publication of any material found in the manuscript collections of the University of Arkansas Libraries Special Collections is permitted only after a completed “Permission to Publish Request” is approved…


University of Arkansas library suspends Washington Free Beacon’s research privileges

By Jonathan H. Adler By Jonathan H. Adler
The Volokh Conspiracy June 20, 2014


Documents Raise Questions About Conservative Site’s Fight Over Hillary Clinton

Hunter Walker Jun. 21, 2014
“We will not be denied access to public documents at a public institution and if they attempt to enforce this ban we will act to defend our first amendment rights.”


CNN Followed Clinton Document Access Rules Free Beacon Ignored

Blog ››› June 23, 2014 4:05 PM EDT ››› JOE STRUPP

“The courts have held that libraries are entitled to apply reasonable rules to accessing their collections or using facilities as long as they are applied equally to every user and are unrelated to the content,” Stone said. “We see this frequently, especially for special collections and rare books.”


June 24, 2014 –
New Developments Reveal That U of A’s “Intellectual Property Rights” To Clinton Recordings Are Wholly Imaginary


Don’t Ban Books, Just Chase Away Researchers: The Latest on the “Real Hot Mess” at the University of Arkansas
June 28, 2014 Caleb Taylor


UA Library Failed Talking Points: An Autopsy July 8, 2014 Caleb Taylor


July 12, 2012
Requesting permission to publish is important to record keeping, triggering a conversation between the library and a researcher about potential copyright infringement, and allows a library to track use of its material.


July 15, 2014

Library Coordinated with Clinton Staff Prior to Free Beacon Ban, Internal Emails Show
FOIA: library moved to suppress ‘Hillary Tapes’ without knowing who owned copyright


July 24, 2014 What the University of Arkansas controversy can teach us about archival permission practices (By Peter Hirtle)


July 28, 2014 – Archivist expert rips UA Library permission-to-publish policy


Aug. 4, 2014
Unconditional Surrender
University of Arkansas library backs down on Free Beacon ban

NeghVar (profile) says:

Journalist Joe: I seek to investigate a state senator for suspicion of corruption.


Cronies of the suspected senator: Acquire records of Journalist Joe without any formalities.
(They find that Journalist Joe kissed a female classmate when in 3rd grade)
Reported to the public: Journalist Joe sexually assaulted a 9-year-old girl.

Journalist Joe career is over.

ItsEconomics says:


I don’t see this as nefarious just economics…

Sounds like this boils down to funding and trying to reduce the amount of requests which in turns lowers the amount spent for government employees replying to requests.

This is similar to stories popping up today about smaller municipalities DROPPING body camera use based on costs of product, storage and archive retrieval.

Funding should in my view come from the federal government in a tit for tat. State/Local need funding, Fed needs statistical data from State/Local.

nakedlawyer (profile) says:

Yes this is dumb, but "intended uses" aren't always irrelevant.

This is certainly dumb legislation, as the post and comments make abundantly clear.

But speaking from personal experience, FOIA harassment of public employees is actually real, and in most states there’s no real way to deal with it. Putting aside “intended uses” like stalking and retaliation, these requests are a huge waste of public resources (i.e. your taxes) and they just lead to delays in FOIA responses for everyone else.

In some jurisdictions, “vexatious” requests can result in sanctions or a court can enjoin further abusive requests. FOIA agencies everywhere take “intended uses” into account all the time anyway, intentionally or not, so it’s not the dumbest thing ever for a FOIA law to actually acknowledge that. This proposal is just a dumb way of doing it.

nakedlawyer (profile) says:

In general I agree with you, the answer to most FOIA problems is simply to publish the government records.

But FOIA has many unintended consequences that aren’t solved so easily. A pretty significant FOIA problem that often goes unnoticed is how it can affect everyday public employees and become a real threat to their personal privacy. All it takes is someone with a minor personal grudge against someone else who happens to be a public employee, and FOIA can go from sunlight being the best disinfectant to something more like state-subsidized doxxing. The author of this article doesn’t have much faith that this is a real problem, but the proposal here would actually generate some data that might help resolve this unknown.

In this context, perhaps we might also want to consider whether FOIA might be improved by acknowledging that bad faith requests actually exist, however rare or abundant they may be, instead of denigrating a legislator who’s merely suggesting that government should ask people about how they might use the data that FOIA gives them.

The proposal is entirely toothless, and that’s why I called it dumb. But the gist of this article and many of comments is that just by asking a question about intent, we would be undermining some integral part of FOIA. But intent has always been incredibly relevant to FOIA, it’s just that the legal framework pretends that purpose is irrelevant while simultaneously authorizing all sorts of exemptions for sensitive information precisely because people would use it nefarious ways. I shouldn’t have been so quick to call the proposal dumb, because the general reaction shows just how easy it is to marshal some sophistry about “transparency and accountability” instead of really considering the implications of a tiny change to the status quo.

The premise that it’s “unreasonable” to ask questions about how FOIA is actually used also just consigns us to all of the problems that the existing process has caused. FOIA itself is what “thwarts transparency and accountability” and if we refuse to consider any proposal that challenges the legal fiction that why and how FOIA is used isn’t important, well… I suppose we’ll be left with more comments encouraging people to FOIA-doxx this legislator because they don’t like her proposed legislation.

Anonymous Coward says:

Arizona - commercial use forbidden

Arizona regulates the commercial use of public records


Request for copies, printouts or photographs; statement of purpose; commercial purpose as abuse of public record; determination by governor; civil penalty; definition
A. When a person requests copies, printouts or photographs of public records for a commercial purpose, the person shall provide a statement setting forth the commercial purpose for which the copies, printouts or photographs will be used. Upon being furnished the statement the custodian of such records may furnish reproductions, the charge for which shall include the following:

  1. A portion of the cost to the public body for obtaining the original or copies of the documents, printouts or photographs.

  2. A reasonable fee for the cost of time, materials, equipment and personnel in producing such reproduction.

  3. The value of the reproduction on the commercial market as best determined by the public body.

B. If the custodian of a public record determines that the commercial purpose stated in the statement is a misuse of public records or is an abuse of the right to receive public records, the custodian may apply to the governor requesting that the governor by executive order prohibit the furnishing of copies, printouts or photographs for such commercial purpose. The governor, upon application from a custodian of public records, shall determine whether the commercial purpose is a misuse or an abuse of the public record. If the governor determines that the public record shall not be provided for such commercial purpose the governor shall issue an executive order prohibiting the providing of such public records for such commercial purpose. If no order is issued within thirty days of the date of application, the custodian of public records shall provide such copies, printouts or photographs upon being paid the fee determined pursuant to subsection A.

C. A person who obtains a public record for a commercial purpose without indicating the commercial purpose or who obtains a public record for a noncommercial purpose and uses or knowingly allows the use of such public record for a commercial purpose or who obtains a public record for a commercial purpose and uses or knowingly allows the use of such public record for a different commercial purpose or who obtains a public record from anyone other than the custodian of such records and uses it for a commercial purpose shall in addition to other penalties be liable to the state or the political subdivision from which the public record was obtained for damages in the amount of three times the amount which would have been charged for the public record had the commercial purpose been stated plus costs and reasonable attorney fees or shall be liable to the state or the political subdivision for the amount of three times the actual damages if it can be shown that the public record would not have been provided had the commercial purpose of actual use been stated at the time of obtaining the records.

D. For the purposes of this section, "commercial purpose" means the use of a public record for the purpose of sale or resale or for the purpose of producing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record. Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial or quasi-judicial body.

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