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.

Filed Under: betsy johnson, deborah boone, foia, intended use, journalism, oregon, public records, research

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  1. icon
    nakedlawyer (profile), 24 Jan 2019 @ 12:02am

    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.

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