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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Ninja (profile), 22 Sep 2017 @ 12:26pm

    "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.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 22 Sep 2017 @ 1:49pm

    Why the government (which us us) and not the bureaucrat who filed the damn thing in the first place?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2017 @ 5:35pm

      Re:

      "We the People......", "The People versus...."

      Unfortunately dumbocracy has become government of the people, by the government, FOR the government.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Sep 2017 @ 8:57am

        Re: Re:

        Correction:
        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 22 Sep 2017 @ 2:16pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 23 Sep 2017 @ 8:40am

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Sep 2017 @ 8:59am

      Re: Judges should refuse to rule

      If they wanted it to remain under the rug, doesn't discovery during a law suit defeat this desire? How do they intend to also eat their cake?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2017 @ 2:17pm

    Precedent?

    If they sue the single requester, what happens when someone else requests it? Do they have to sue that person too, and cite the previous case as precedent? Does it even create precedent?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2017 @ 2:24pm

    If they didn't do this thought, people might realize that basically most tax dollars go straight into private hands and don't benefit the people at all.

    Also that pretty much every law for the past 20 or so years has been written by lobbyists and just handed over directly to politicians to pass as law.

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 22 Sep 2017 @ 3:22pm

    another step closer to tyranny

    "Don't go snooping where you are not wanted"

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.