Judge Janine Expresses Outrage over Refusal of Attorney General Jeff Sessions to Prosecute Crimes of Obama Administration
Governments Now Suing Those Who Request Public Records
An Oregon parent wanted details about school employees getting paid to stay home. A retired educator sought data about student performance in Louisiana. And college journalists in Kentucky requested documents about the investigations of employees accused of sexual misconduct.
Instead, they got something else: sued by the agencies they had asked for public records.
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.”
Government officials who have employed the tactic insist they are acting in good faith. They say it’s best to have courts determine whether records should be released when legal obligations are unclear – for instance, when the documents may be shielded by an exemption or privacy laws.
At least two recent cases have succeeded in blocking information while many others have only delayed the release.
State freedom-of-information laws generally allow requesters who believe they are wrongly denied records to file lawsuits seeking to force their release. If they succeed, government agencies can be ordered to pay their legal fees and court costs.
Suing the requesters flips the script: Even if agencies are ultimately required to make the records public, they typically will not have to pay the other side’s legal bills.
“You can lose even when you win,” said Mike Deshotels, an education watchdog who was sued by the Louisiana Department of Education after filing requests for school district enrollment data last year. “I’m stuck with my legal fees just for defending my right to try to get these records.”
The lawsuit argued that the data could not be released under state and federal privacy laws and initially asked the court to order Deshotels and another citizen requester to pay the department’s legal fees and court costs. The department released the data months later after a judge ruled it should be made public.
Deshotels, a 72-year-old retired teachers union official who authors the Louisiana Educator blog, had spent $3,000 fighting the lawsuit by then. He said the data ultimately helped show a widening achievement gap among the state’s poorest students, undercutting claims of progress by education reformers.
The lawsuits have been denounced by some courts and policymakers. A New Jersey judge in 2015 said they were the “antithesis” of open-records policies and dismissed a case filed by a township against a person who requested police department surveillance video footage.
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.
The Michigan bill’s sponsor, Republican Rep. Klint Kesto, called the tactic “a backdoor channel to delay and put pressure on the requester” that circumvents the state’s Freedom of Information Act.
“Government shouldn’t file a lawsuit and go on offense. Either approve the request or deny it,” he said. “This shouldn’t be happening anywhere in the country.”
As his bill remains pending in a state Senate committee, Michigan State University filed a lawsuit May 1 against ESPN after the network requested police reports related to a sexual assault investigation involving football players. That and a number of other cases are currently unfolding.
In April, the Portland, Oregon, school district filed a lawsuit against parent Kim Sordyl, who is seeking records about employees on leave for alleged misconduct after the disclosure that one psychologist had been off for three years. Sordyl said she believes the information will expose costly missteps by district human resources officials and lawyers, and the district attorney has already ordered the records to be released.
“They are going to great lengths to protect themselves and their own mismanagement. This is retaliation,” said Sordyl, who has hired an attorney. “Most people would give up.”
Catalonia Expected to Declare Independence ‘Within Days”, Spain Threatens Nuclear Option
As reported previously, in a sternly worded address to the nation, Spain’s King Felipe VI condemned organizers of Catalonia’s independence referendum for having put themselves “outside the law” and said the situation in Spain was “extremely serious”, calling for unity. In his address, King Felipe VI said Catalan leaders who organized the referendum showed their “disrespect to the powers of the state” adding that “they have broken the democratic principles of the rule of law.
“Today, the Catalan society is fractured,” the king said, warning that the poll could put at risk the economy of the wealthy autonomous north-eastern region and the whole of Spain. He said that Catalonia’s authorities, “have placed themselves outside the law and democracy, they have tried to break the unity of Spain and national sovereignty”. Offering firm backing to the Spanish government of Mariano Rajoy, Felipe said it was the “responsibility of the legitimate powers of the state to ensure the constitutional order.”
Felipe also said the Catalan government had “systematically violated the law, demonstrating a disloyalty that is inadmissible” and “undermined the harmony and coexistence in Catalan society”
But he stressed that Spain “will overcome difficult times”.
The address came on the same day as Barcelona’s roadways were blockaded amid a general strike as hundreds of thousands in Catalonia have been protesting over Spanish police violence during Sunday’s vote, in which nearly 900 people were hurt.
However, despite the King’s warning and hinting that a showdown, potentially violent, is coming, Catalan President Carles Puigdemont told the BBC the region will declare independence in a matter of days. In his first interview since the referendum, Carles Puigdemont said his government would “act at the end of this week or the beginning of next”.
When asked what he would do if the Spanish government were to intervene and take control of Catalonia’s government, Puigdemont said it would be “an error which changes everything”.
As Bloomberg reported earlier, Prime Minister Mariano Rajoy has been fighting to maintain control after 2.3 million Catalans voted in Sunday’s makeshift referendum and the regional police force ignored orders to prevent the ballot. Preparing for launching the “nuclear option”, Bloomberg added that Rajoy is mulling if, and when, to use Article 155 of the Spanish Constitution to take direct control from the administration in Barcelona. This is the “error that would change everything” referred to by Puigdemont.
As a reminder, the Spanish government in Madrid has described the referendum as illegal. During the vote, 33 police officers were also injured, local medical officials said.
Meanwhile, as noted this morning, huge protest rallies have been taking place across Catalonia. In Barcelona alone, 700,000 people took to the streets, city police were quoted as saying by the AFP news agency.