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Governments Turn Tables By Suing Public Records Requesters (apnews.com)

Posted by EditorDavid on from the questions-are-a-burden-to-others dept.

schwit1 quotes the AP: 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. Still, the recent trend has alarmed freedom-of-information advocates, who say it's becoming a new way for governments to hide information, delay disclosure and intimidate critics. "This practice essentially says to a records requester, 'File a request at your peril,'" said University of Kansas journalism professor Jonathan Peters, who wrote about the issue for the Columbia Journalism Review in 2015, before several more cases were filed. "These lawsuits are an absurd practice and noxious to open government."

35 of 145 comments (clear)

  1. Opening themselves up to trouble by HalAtWork · · Score: 5, Insightful

    If this keeps happening they risk being in contempt of the court by filing frivolous lawsuits against legitimate actors.

    --
    Twinstiq, game news
    1. Re:Opening themselves up to trouble by Opportunist · · Score: 4, Interesting

      I was just wondering that. Over here, judges tend to be VERY upset at people and organizations that obviously just waste their time and get VERY creative when it comes to getting back at them.

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    2. Re:Opening themselves up to trouble by Wrath0fb0b · · Score: 4, Insightful

      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.

      Unless of course the judges are correct that, under current law/caselaw, the records being sought are exempt from disclosure. I mean, to me that really seems like a fact-based inquiry into each set of records and countervailing lawsuit that is the fundamental crux here.

      Or to put it another way, I believe the following statements concurrently:

      (1) If agencies are filing lawsuits trying to prevent disclosure of documents that clearly covered by the various (Federal, State, local) FOIAs, they should be sanctioned for frivolous lawsuits as the OP suggests.

      (2) If the agencies are filing lawsuits trying to prevent the disclosure of documents that are clearly not covered by the relevant FOIA, the court should grant their request and remind the requesters not to file frivolous FOIA requests. As noted/quoted in TFA, they aren't seeking monetary damages, just a ruling telling the filers to go away.

      (3) If the sought-after disclosure is neither obviously covered nor exempt from disclosure, then the court should rule on it in the context of those specific facts. I'm sure that there are finer points of FOIA law that either the filers or the agency could reasonably be wrong about and would need to be corrected. That's what the courts are for (I thought).

      I'm really surprised that any of these statements would be controversial. I'm not surprised, however, that both sides of the debate would try to lump everything together into an ideological uniformity instead of wanting to delve into the fact-specifics about whether a particular record is covered or exempt under some (probably complicated) law.

    3. Re:Opening themselves up to trouble by SwashbucklingCowboy · · Score: 4, Insightful

      They don't care - it's taxpayer money. As long as they don't suffer any serious consequences they'll keep doing it. If judges start throwing people in jail for refusing to turn over records then things will change. It's called accountability. Without something like that, this will continue.

    4. Re:Opening themselves up to trouble by cunina · · Score: 4, Insightful

      That claim is entirely unsubstantiated. The ACLU isn't perfect, but they're not some kind of anarchist menace.

    5. Re:Opening themselves up to trouble by BradleyUffner · · Score: 2

      Case 2 can be resolved by simply denying the request.

    6. Re:Opening themselves up to trouble by tomhath · · Score: 2

      There is no ideology needed to file FOIA requests, just civic interest.

      Reread GP's post more carefully. Especially this sentence:

      I'm not surprised, however, that both sides of the debate would try to lump everything together into an ideological uniformity instead of wanting to delve into the fact-specifics...

      He also said that ideology has no place here (albeit more eloquently than you).

    7. Re: Opening themselves up to trouble by belg4mit · · Score: 2

      Since you're such an expert, perhaps you can share a few bits of information or links? 1) An unsubstantiated claim is more easily dismissed than not. 2) Why should the many expend effort hunting for something that may or may not exist, when you could share what you purport to know with little effort?

      --
      Were that I say, pancakes?
    8. Re:Opening themselves up to trouble by ewanm89 · · Score: 2

      I was wondering what if a lot of people who legitimately wanted get some piece of information filed freedom of information act requests all within a very short amount of time. That would be a lot of lawsuits very quickly and a lot spent on filing fees with the courts.

    9. Re:Opening themselves up to trouble by PoopJuggler · · Score: 3, Informative

      That is patently false.

    10. Re:Opening themselves up to trouble by ebvwfbw · · Score: 2

      Are you saying this is a phontom menace?

      Sorry... It was too easy to not say it.
      (star wars reference... it has been a while after all)

  2. Criminal disrepsect of the bureaucracy! by elrous0 · · Score: 4, Funny

    Many of these information outlaws failed to even submit Forms 223981A-1 and 32871BC-5, Application For Permit To Become Information Criminal and Certification of Illegal Information Gathering. That makes them double criminals!

    --
    SJW: Someone who has run out of real oppression, and has to fake it.
  3. Drain this f&ing swamp by Anonymous Coward · · Score: 4, Insightful

    Trump needs to remember the reason he was voted in: put and end to this deep-state bullshit.
    Suing the citizen is exactly the kind of shit you get once you start warrantless mass surveillance of the Americans (Bush, Obama), spying on journalists (Obama), sending the IRS after the dissenters (Obama), putting the whistle-blowers to jail (Obama).

    Manning, Assange, and Snowden need to be fully exonerated and given a medal of freedom. Obama stooges need to be jailed and tried for seditious subversion of the constitution.

    1. Re:Drain this f&ing swamp by Opportunist · · Score: 3, Insightful

      And you think that's going to happen? In this or any administration?

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    2. Re:Drain this f&ing swamp by Anonymous Coward · · Score: 5, Insightful

      Yeh right, deep state, that's the reason Trump is a whiney little bitch that can't do anything but complain about everything. It's all a secret cabal of Obama/Bush loyal Civil Servants conspiring to make him look incompetent/treasonous.

      R-i-g-h-t.

      Oh and LBGT military, who he banned 4 hours after he was notified that Manasfort house had been raided? Those gay soldiers are all part of this conspiracy too?? r-i-g-h-t.

      Why did they not do his budget? That 1 page budget? Was that a) deep state Congress Republicans, or b) it's a one page budget that shows zero grasp of what the vast work the US govt does and the contracts its committed to already? Did the the Republicans throw it out because it was a joke from an clueless idiot, or because they're part of a giant conspiracy to make Trump look bad?

      Are NFL players are part of this big deep state conspiracy? Or is he attacking them to distract from Manasfort emails with Putin's men about the large chunk of 'black caviar" he received for his work.

      And his $15/month healthcare, did that die because a) it's not real, a fiction, a made up lie told to gullible people who want it to be true, or b) deep-state conspiracy.

      And of course the press, don't get me started about the fake news constantly fact checking everything he says. Sooooo deep state.

      Keep up the faith A/C. Keep telling yourself you weren't conned by a professional conman.

    3. Re: Drain this f&ing swamp by FuzzyDaddy2 · · Score: 2

      So, all the cases cited in the article were state and local governments. What the federal government would do about it, Isn't super clear to me. Unless your asking for more federal oversight of local and state governments?

    4. Re:Drain this f&ing swamp by Opportunist · · Score: 4, Insightful

      In a system where the only way to get to the top as a politician is to amass a LOT of money and the only way of doing this is to sell yourself to corporations, how can this possibly end without corruption?

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  4. Good reasons and bad reasons. by jellomizer · · Score: 3, Interesting

    Denying a FOI may be a good reason to do so. Such as protecting protecting confidential information. For example if you want the Medicaid Health Records of the guy who lives down the street, because you think he is a druggy.
    However information that shouldn't be denied is if it just happens to put the officials in a bad light. So they may had rushed that contract for the new building and went with a known vendor. While the reason to do so, is because the building needed to be built quickly, and the known vendor had a good track record for quality. However releasing this information will just mean for the person who approved it a bunch of extra problems, to defend his actions, and explanation on after the fact solution's. Now this is information that still should be available even if it puts someone who was trying to put the benefit of the community ahead of his own, but still we should know about this, as it could lead to abuse in the future and the person will be held accountable, even just politically.

    Politicians need to realize that they serve the community and their job there is at the privilege of the community. If they want him out, then their job is over.

    --
    If something is so important that you feel the need to post it on the internet... It probably isn't that important.
    1. Re:Good reasons and bad reasons. by chill · · Score: 4, Insightful

      FOIA requests aren't automatically granted. There are legitimate reasons to deny the requests, or redact the material. The agency who is processing the request can say "no" and cite one of the valid reasons.

      Filing lawsuits against the requester is akin to saying "there is no valid reason to deny the request, but I want to anyway". It is disgusting and these types of lawsuits should be summarily dismissed by the court where they are filed.

      --
      Learning HOW to think is more important than learning WHAT to think.
    2. Re:Good reasons and bad reasons. by caseih · · Score: 4, Insightful

      As the articles said, these government entities very well could just refuse a request for some reason (such as one of the reasons you suggest). But they aren't doing that; they are filing lawsuits against the requester. That's where the problem is and that's what this whole article is about. This is what is absurd, malicious, and pernicious. And it's getting worse.

      It's interesting to see how American institutions, politics, and bureaucracy, are steadily on the decline, both from within and without.

    3. Re:Good reasons and bad reasons. by CrimsonAvenger · · Score: 4, Interesting

      Denying a FOI may be a good reason to do so. Such as protecting protecting confidential information.

      Read about this a couple-three days ago.

      No, this is not so nefarious as wanting to keep things secret from the public. Suing the requester is a tactical move designed to make sure the government doesn't have to pay the requester's legal fees.

      If the requester sues the government to get release of the records, and wins, the government is on the hook for the requester's legal fees.

      If the government sues the requester and loses (same effect as previous case, in regards to the records in question), the government is NOT liable for the requester's legal fees.

      --

      "I do not agree with what you say, but I will defend to the death your right to say it"
    4. Re:Good reasons and bad reasons. by drinkypoo · · Score: 4, Insightful

      No, this is not so nefarious as wanting to keep things secret from the public. Suing the requester is a tactical move designed to make sure the government doesn't have to pay the requester's legal fees.

      So what you're saying is that this is a means of keeping things secret from the public by making it potentially prohibitively expensive to request the data, even if you have a legal right to do so? Got it. Thanks!

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    5. Re:Good reasons and bad reasons. by arth1 · · Score: 3, Interesting

      Filing lawsuits against the requester is akin to saying "there is no valid reason to deny the request, but I want to anyway"

      I can see a situation where it's "there is no legal reason to deny the request, but there likely should be". In a common law system, creating a precedent can be very helpful in cases where the law hasn't been established well enough yet. Like there may not be a prohibition against walking your pet alligator on a public sidewalk, but getting a judge to declare that alligators are inherently unsafe would allow a district to ban it.
      For FOIA requests, there may likewise be some areas where it's unclear. But what's wrong is suing the person who files the FOIA request, and expect them to front much of he costs of court proceedings. The filing should be against their own agency to prevent them from disseminating the information, if they think it's likely that a judge will rule against it being released.

    6. Re:Good reasons and bad reasons. by Dog-Cow · · Score: 2

      Transparency from Mr. My-tax-return-isn't-any-of-your-business Trump?

      Pull the other one.

    7. Re:Good reasons and bad reasons. by swb · · Score: 2

      I can see a situation where it's "there is no legal reason to deny the request, but there likely should be".

      Then they should turn to their various intra-governmental lobbyists and get the law changed. If there "should be" a reason for a law or a change in a law, then that's what the legislature is for -- to debate the merits of proposed laws and implement them.

      The reason they don't is that FOIA really isn't that controversial as a matter of law and policy and the kind of minutia they want to micromanage isn't really practical and generally conflicts with the intent and spirit of the law. It's specific bureaucrats wanting to protect specific information for a specific reason, usually embarrassing to them and their little empires. Their requests would never make it through the legislature because they would be forced to explain and defend why these specific exemptions from FOIA make sense and are justified.

      These court challenges by government entities really are a reprehensible attempt to achieve legislation through judicial action. What's depressing is that it's gotten momentum as a strategy because of the nexus of the government and courts each scratching each other's backs.

      We really need a court like the German Bundesverfassungsgericht which can rule on Constitutional and similar issues, in which I would include FOIA requests. I think open government is so important we should go a step further and have officials who drag their feet or refuse legitimate FOIA requests should be held criminally liable.

    8. Re:Good reasons and bad reasons. by Keith_Beef · · Score: 2

      If the government sues the requester and loses (same effect as previous case, in regards to the records in question), the government is NOT liable for the requester's legal fees.

      So party A can attack party B in a court of law and if party A loses, then party B is not defrayed the cost of defence? Wow. That means that any party with sufficiently deep pockets can attack any relatively poor party, safe in the knowledge that it can bankrupt the other...

  5. I miss the old days by ArchieBunker · · Score: 3, Insightful

    In the old days corrupt and unruly government officials would be tarred and feathered (or worse) so they knew to behave. Government works for the people not vice versa.

    --
    Only the State obtains its revenue by coercion. - Murray Rothbard
    1. Re:I miss the old days by drinkypoo · · Score: 5, Insightful

      In the old days corrupt and unruly government officials would be tarred and feathered (or worse) so they knew to behave.

      In the old days, inconvenient or unruly citizens would be whipped or beaten (or worse) so they knew to stay in their place.

      In the old days, we didn't have antibiotics.

      The old days were shit.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    2. Re:I miss the old days by ArchieBunker · · Score: 3, Insightful

      Did I say we should turn back the clock? I'm saying maybe its time to hold politicians personally responsible for the harm and corruption they cause. Asking the government to investigate itself works about as well as the police doing the same.

      --
      Only the State obtains its revenue by coercion. - Murray Rothbard
  6. the water just got another degree warmer by jm007 · · Score: 2

    don't know about you all.... but for us frogs, we like it when the water warms up.... feels good so I'm not complaining

  7. Re:The US by Opportunist · · Score: 4, Funny

    Come over to Europe! We could use a few immigrants that can read and write and maybe even have some marketable skills for a change.

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  8. The word you're looking for by Anonymous Coward · · Score: 5, Informative

    is SLAPP

  9. Silly citizens by JustAnotherOldGuy · · Score: 2

    Silly citizens- how DARE you want to use the law to request things that you have the legal right to see?

    --
    Just cruising through this digital world at 33 1/3 rpm...
  10. Or avoiding the expense of harassment ? by perpenso · · Score: 2

    If this keeps happening they risk being in contempt of the court by filing frivolous lawsuits against legitimate actors.

    I wonder how many of the lawsuits are against frivolous information requests. For example yet another request to NASA about where the aliens are hidden. Might be a valid move for these.

  11. Re:The US by arth1 · · Score: 3, Insightful

    Come over to Europe! We could use a few immigrants that can read and write

    That disqualifies a majority of my countrymen right there.