September 20, 2017 The Skanner Page 9
News
New Secrecy Tactic: Suing People Who Seek Public Records
IOWA CITY, Iowa — An Or-
egon parent wanted details
about school employees get-
ting paid to stay home. A re-
tired educator sought data
about student performance in
Louisiana. And college jour-
nalists in Kentucky requested
documents about the investi-
gations of employees accused
of sexual misconduct.
Instead, they got something
else: sued by the agencies they
had asked for public records.
Government bodies are in-
creasingly turning the tables
on citizens who seek public re-
cords that might be embarrass-
ing or legally sensitive. Instead
of granting or denying their
requests, a growing number
of school districts, municipal-
ities and state agencies have
filed lawsuits against people
making the requests — taxpay-
ers, 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 re-
questers as defendants but do
not seek damage awards. Still,
the recent trend has alarmed
freedom-of-information advo-
cates, who say it’s becoming a
AP PHOTO/DON RYAN
By RYAN J. FOLEY
Associated Press
Kim Sordyl poses for a photo at home as her family eats breakfast in the kitchen in
Portland, Ore., on Friday, July 7, 2017. In April 2017, the Portland, Ore., school district
filed a lawsuit against 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.
new way for governments to
hide information, delay disclo-
sure and intimidate critics.
“This practice essentially
says to a records requester,
‘File a request at your peril,’”
said University of Kansas jour-
nalism professor Jonathan
Peters, who wrote about the
issue for the Columbia Jour-
nalism 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 in-
sist they are acting in good
faith. They say it’s best to have
courts determine whether re-
cords should be released when
legal obligations are unclear
— for instance, when the doc-
uments may be shielded by an
exemption or privacy laws.
At least two recent cases
have succeeded in blocking in-
formation while many others
have only delayed the release.
State freedom-of-informa-
tion laws generally allow re-
questers who believe they are
wrongly denied records to
file lawsuits seeking to force
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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 ul-
timately 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 Depart-
ment 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 un-
der 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 depart-
ment released the data months
later after a judge ruled it
should be made public.
Deshotels, a 72-year-old re-
tired teachers’ union official
who authors the Louisiana Ed-
ucator 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 re-
formers.
The lawsuits have been de-
nounced by some courts and
policymakers. A New Jersey
judge in 2015 said they were
the “antithesis” of open-re-
cords policies and dismissed a
case filed by a township against
a person who requested police
department surveillance vid-
eo 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 lo-
cal newspaper that had sought
the personnel files of two em-
ployees running for sheriff. A
judge dismissed the lawsuit,
saying the county had to ap-
prove or deny the request.
The documents, ultimate-
ly released days before the
election, showed that one of
the candidates had been disci-
plined for carrying on an af-
fair 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 pres-
sure on the requester” that cir-
cumvents the state’s Freedom
of Information Act.
“Government shouldn’t file
a lawsuit and go on offense.
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