Archive for the ‘court records’ Category


The secret state of Massachusetts

Over the past year, Massachusetts State Police informed a local attorney it would cost him $2.7 million for public records related to data about the accuracy of breathalyzer tests. And the Bay State Examiner was told by the department they would have to pay a $710.50 fee to get a public records fee estimate, after the news site requested copies of internal affairs files for 49 state troopers.

Massachusetts: Once considered the birthplace of American civil discourse, its government over the past four decades has transformed the state into quite literally, one of the most secretive in the country- recently earning an F grade for public access to information by the Center for Public Integrity.

Two weeks ago, a bill passed through the state’s House of Representatives that would improve the situation and be the first update to the state’s public records laws in 40 years. And while there is hope the bill will be strengthened when it goes before the Senate next month, the current version does not address many of the deficiencies of the state’s broken system and in some cases, makes it worse.

A broken system

Government agencies in the state have the ability to charge reporters, advocates, and citizens massive fees to administer public records requests, which they say, covers the labor and printing costs of fulfilling requests. Often they charge high costs to have lawyers review and make redactions on each requested page and make printed copies of the records, even when the documents are available electronically.

Challenging high fees or public records denials in court can be expensive and can often take years. And filing an appeal with the Secretary of State is largely ineffective, allowing government agencies to push the boundaries when deciding what records should be public and how much it should cost to administer them.

Boston Globe Spotlight Team Investigative Reporter Todd Wallack said he is regularly charged tens- of- thousands or hundreds-of-thousands by Massachusetts government agencies for public records, which many states provide for free. On several occasions he has been flat-out denied records.

“It is all too common when dealing with particular agencies and police departments [in Massachusetts] where I get really high fee estimates that stretch the imagination and look like alternative ways to deny a request,” Wallack said.

In Sept. 2014, Massachusetts State Police said a blogger could not obtain records relating to a 63-year-old murder case because it was still under investigation, even though the suspect was long dead.

And last spring, Wallack filed FOIA requests to the state police and the Middlesex DA’s office asking for the state police report for the 2013 Watertown shootout involving the Boston Marathon bombers. In response, the Middlesex District Attorney’s office held a press conference about the report and posted it on their website. But days later, the state police sent him a letter denying his request.

“How much credibility do they have when that same report is on the web and the DA sent out a press release?” Wallack asked.

The state’s public records law doesn’t apply to the governor’s office, the judicial branch, or the state legislature at all, allowing them to operate in the dark. And the state agencies that are subject to the laws, sometimes take months or years to administer a request.

Recently, the Massachusetts State Police was fittingly named the most secretive publicly-funded government agency in the country, winning the Investigative Reporters and Editor’s prestigious 2015 Golden Padlock Award.

But the secrecy has expanded to police departments across the Commonwealth.

Last spring, Massachusetts Secretary of State William Galvin made a series of rulings that gave police greater power to withhold and censor arrest records. In 2014, former Governor Deval Patrick signed a law that prohibits police departments from releasing reports or logs with information relating to domestic violence and sex crimes.

And NEMLEC, a law enforcement council that coordinates regional police activity and has a SWAT team that deploys armed vehicles and conducts forced-entry raids on Massachusetts homes, have continuously dodged FOIA requests.

Lack of enforcement

Over the years, it has been difficult for journalists to fight public record denials or exuberant charges.

In fact, the state’s Attorney General’s office finally began enforcing the law for the first time in five years last June, months after Maura Healey was elected to the AG post. And in that one case, the AG’s office ordered the Fall River Police Department to lower the fee amount for a request. But the police department was never prosecuted.

Without the state’s help in enforcing the laws, reporters, citizens and advocates have been forced to go to the courts for help, which can be an expensive and time-consuming route.

Massachusetts is one of just three states that does not allow people who were found wrongly denied access to public records to recover attorneys’ fees. And such suits often take years before they are ever heard, Wallack said.

“[Government agencies] recognize if journalists are denied information for a long period of time, that means a story might not get written at all or it may no longer be timely,” Wallack said.

The fight for public records reform

While there is a major push by state lawmakers and advocacy groups to try and open up some of the blinders, such efforts have been met with large resistance from the lobbyist group the Massachusetts Municipal Association, which represents cities and towns across the state.

Two weeks ago, the state’s House of Representatives unanimously approved a public records reform bill that would reduce public records administration costs, require agencies and municipalities to assign a public access officer to handle requests, and allows judges to reimburse attorney fees and litigation costs to requesters who were unlawfully denied public records.

The bill was introduced by state Representative Peter V. Kocot and backed by a coalition of 40 watchdog, civil rights and journalism organizations including the American Civil Liberties Union of Massachusetts, Common Cause Massachusetts and SPJ’s New England pro chapter.

But, as DigBoston thoroughly reports, the bill doesn’t nearly go far enough and in some cases, makes the situation worse.

For instance, the existing law gives agencies 10 days to respond to FOIA requests while the new bill gives state agencies up to 60 days and local agencies up to 75 days, with the option to apply for an extension with the supervisor of records. However, Common Cause Massachusetts Executive Director Pam Wilmot said the courts have ruled that the 10 days isn’t really a hard deadline for agencies to respond to requests.

“Even though there is something on paper, there is no effect,” Wilmot said.

Another issue DigBoston points out, is judges would have discretion over whether to award attorneys’ fees to people who successfully sued agencies over wrongfully denied records. Wilmot said judges would need to produce a written explanation as to why they are withholding attorney’s fees, which she suspects they would prefer not to do unless there was a good reason for it.

And the bill makes it harder to simply file a lawsuit for denied public records requests. As it stands, requesters have an indefinite amount of time to file a lawsuit, whereas in the bill, they would have only 30 days.

The bill would also not make the public records law apply to the governor’s office, the judicial branch, or the state legislature. But, a late amendment to the bill was added that would create a study commission to look at the future inclusion of the three bodies and other ways the legislature can be more open and transparent.

The road ahead

Wilmot said the bill is not perfect, but it is a step in the right direction. She said the Senate is expected to take up the bill in January, which, as a whole is typically more friendly to public records reform. She said she is optimistic the Senate will strengthen the bill.

“The Senate has been consistently more pro-reform in a number of areas and more willing to push the envelope when it comes to transparency,” Wilmot said. “Will it be everything we want? Probably not. But I think it may be close.”

Once approved, the bill would go to a conference committee, which would likely pass some kind of compromise between the Senate and the House bills, she said.

As for Governor Charlie Baker, who would need to sign-off on the final bill, he set public records procedures for state agencies in July, in an effort to improve transparency. But Wilmot said his office is concerned about having strict cost controls for municipalities when administering public records due to existing laws barring the state from mandating municipalities to spend more money without giving them more money.

It’s encouraging that lawmakers are finally taking public records reform seriously. But real reform that addresses all of the issues is needed, not something that gives public officials avenues to avoid having to turn over records that belong to the taxpayers and hardworking journalists. Massachusetts has been governed in the dark for too long. It’s time to pull up the shades and bring in some sunshine.

Danielle McLean is a member of the Society’s Freedom of Information Committee and President of Society’s New England Pro Chapter.

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Judging the Freedom of Information Act in environmental court

One misstep, one decision, one instant can unleash consequences that last a lifetime. Consider April 20, 2010, when the Deepwater Horizon oil rig explosion created an environmental catastrophe in the Gulf of Mexico, the fallout from which is still making news. While the first reports were made from the coast, the story has now moved into the courtroom.

Headlines scream breaking environmental news when an oil tanker or truck has a major spill, when a factory is found to be releasing toxic chemicals, or when a wildlife trafficker is caught and arrested (remember the man who tried to smuggle parrots in water bottles?) But what happens after the fact is sometimes overlooked. The court cases, the cash settlements, and the criminal punishments are as interesting as the original stories, and the Environment and Natural Resources Division (ENRD) of the Department of Justice makes reporting on them possible.

ENRD handles cases dealing with civil and criminal statutes related to the Clean Air Act, Clean Water Act, Superfund, and other lesser known environmental laws. It also handles conflicts over Native American rights and eminent domain actions to obtain private land for federal ownership. The Division is split into several categories, including Prevention and Cleanup of Pollution, Environmental Challenges to Federal Programs and Activities, Stewardship of Public Lands and Natural Resources, Property Acquisition for Federal Needs, Wildlife Protection, Indian Rights and Claims, and Appellate and Policy Work. The department is split into ten geographic sections nationwide, and is currently managing 7,000 active cases in state and territorial courts.

court-quote

I personally love looking into court proceedings and digging into legal issues. But there are a few reasons why it’s not attractive to everyone. For one, it takes an incredible amount of patience. The processing time between an original formal complaint and the final decision (then appeals, sentencing or settlement, etc) is months at best, never-ending at worst. During an ongoing case, lawyers, judges, and witnesses fall silent. And the best cases involving big-name companies will likely be settled in private behind closed doors, where confidentiality agreements and sealed documents are no match for FOIA. Of the nine FOIA exemptions, at least five can be used to block a  request for information that might come out during a court proceeding: including company trade secrets, witness medical records, law enforcement information, and internal agency personnel rules and practices. Finally, few people enjoy reading through the hundreds of pages of legal jargon that may accompany a case file.

One way to skirt this is to visit ENRD’s online press room, where releases include name of offender, prosecuting agency, details of the crime, and final decision and sentencing. In the last month, ENRD has published the outcomes of BP civil claim settlements, as well as environmental crimes committed by a Norwegian shipping company and an order to reduce emissions at a New Mexico power plant.

However, the press releases alone don’t give journalists a chance to dig deeper. It’s better to get your hands on court documents and sometimes, this can even be done without using FOIA. The Department of Justice puts out documents called “proactive disclosures” under subsection (a) 2 of FOIA, which are posted online automatically without any request from the public, and listed in the FOIA library. This includes final opinions, agency policy statements, FOIA request records, and certain administration staff manuals. Proposed consent decrees awaiting public comment are also available through the site and notices published in the Federal Register. Eleven cases are currently open for public comment, including U.S. v. District of Columbia Water and Sewer Authority and U.S. v. Alabama Power Co. Frequently requested records, final opinions and orders, and yearly summaries of litigation accomplishments dating back from 2004, can be found on the Selected Publications site (although no opinions are currently listed).  However, that’s not to say all information is readily available.

FOIA @ ENRD

If you do need to file a FOIA request with ENRD, what can you expect? The Justice department handles upward of 60,000 requests per year, but only 70 to 80 of those fall under the Environmental and Natural Resources category. The small number of requests means processing time is slightly quicker than the average for DOJ requests; about 30 days for simple requests, a year for complex, and 10 days for expedited requests. Only 6 ENRD requests were pending at the end of 2014, despite the division having only two full-time FOIA employees.

court-foia

ENRD has traditionally granted 30% of FOIA requests in full, and given partial grants in another 30%; consistent with the DOJ response overall. Only a small portion (generally less than 5 cases) are denied based on exemptions, while most are denied listing the reason as “no records.” Denials made last year were based on exemption 3, citing 5 U.S.C. § 574 and 28 U.S.C. § 651, and withholding information about dispute resolution communications and confidential mediation documents.

To file an ENRD open records request, contact Sarah Lu, FOIARouting.enrd@usdoj.gov.

Decreasing Wildlife Trafficking, Increasing Web Traffic

In the past few years, a joint DOJ task force has been focusing on wildlife trafficking cases, and publishing summaries of the cases in a new online database. I find this particularly interesting, not only because some of these stories can involve off-beat characters (i.e. water-bottle bird man), but because illegal ivory/rhino horn/shark fin trading are big problems in developing countries. And it’s not easy to get a look into the black market. More info about each case can be found in the FOIA library or by a records request, including a case caption or name, civil action number, judicial district, and date or year of filing.

WILDLIFE TRAFFICKING PROSECUTIONS
BLACK MARKET TRADE IN RHINOCEROS HORN ILLEGALLY IMPORTED PROTECTED BLACK CORAL
ILLEGAL IMPORTATION OF SOUTH AFRICAN LEOPARD HIDES AND SKULLS AFRICAN ELEPHANT IVORY SMUGGLING
ILLEGAL IMPORTATION OF ENDANGERED SPECIES NARWWHAL TUSKS AND TEETH
SAFEGUARDING PROTECTED SPECIES

Final note: In addition to the DOJ, there are several other sites that keep searchable court records, although access might require a paid subscription. A few of the most frequently used sites are:.

  • Public Access to Electronic Court Records (PACER) 
    • PACER is a national database for federal cases from U.S. district, appellate, and bankruptcy courts. You can search by party involved, by court locale, or with the case locator tool. Documents are available immediately after being electronically filed. PACER requires its members to register for an account, and may charge up to $3.00 for a document. The downsides are that some personal identification information, like name and address, are removed before the record becomes public, and that there are no pre-2004 criminal case documents.
  • Lexis Nexis
    • Lexis Nexis is another pay-to-use service, but searches also include documents such as newspaper articles and company information related to a specific query. There is a professionals option, which contains documents, dockets, and litigation histories, but users must have a subscription to access. On the other hand, there is Lexis Nexis Academic, which is free, and can search cases by specific citation or parties involved. I’ve usually found this strategy to be hit-or-miss when it comes to how much information is provided, but on the plus side, it’s free.
  • Free Law Online
    • This is an incredibly comprehensive and helpful site put out by the Gallagher Law Library at the University of Washington. It contains a list of databases including laws, bills, court opinions on the federal and state levels (not just Washington state); there are links for each provided by the National Center for State Courts and American Libraries Association. The site also gives suggestions for online law reporters and digests, and publishes a legal research guide for non-lawyers.

How would you judge your Department of Justice or court stories experience? Share your thoughts by contacting amayrianne@gmail.com or tweeting @amayrianne.

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Must read FOI stories – 7/25/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • The Electronic Privacy Information Center has sued the United States Customs and Border Protection to compel the agency to produce documents relating to a relatively new comprehensive intelligence database of people and cargo crossing the U.S. border.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Must read FOI stories – 7/18/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

Special congrats to the FOIA advocacy website MuckRock, they got a shout out from the Daily Show this week for one of their FOIA requests:

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

 

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

FOIA should be proactive, not reactive

I’ve noticed a few interesting improvements at various local governments across the country that are taking a more proactive approach to Freedom of Information Act requests — and I’m impressed.

Gainesville, Fla., recently opened its commissioners’ (as well as the mayor’s) emails through an online database. No need for a FOIA request, just click and search away. Ann Arbor, Mich.,— along with Greensboro, N.C. — now publishes its FOIA request log online (something every city should do). A new plan in Albuquerque, N.M., could give wider access to the state’s court records like PACER does at the federal level. Riverside, Calif., logged almost 16,000 views in one week on a new database it launched containing “information on city finances, police and fire calls, and access to thousands of other records.”

While these are to highlight just a few of the good examples, I think (and hope) that we will start to see a trend where local governments realize that relying on technology to assist them in handling public records requests will ultimately cut down on their cost, increase transparency and make for more satisfied citizens. Anything that public officials can do to utilize tools already in existence for open government purposes should be mandatory. Legislators create laws, in most cases, for our own good. We ought to insist the same logic be applied to state agencies and officials by forcing efficiency on them.

Freedom of information laws should first operate on the principle that all information should be readily available to the public at low or no cost, and then work backward (i.e. exemptions for security reasons, etc.).

On the federal level, a bipartisan bill known as the Freedom of Information Improvement Act was recently introduce in the Senate and would, among other things, restrict the use of FOIA’s “deliberative process” exemption — an overused and, in some cases, purposely misapplied exemption. Additionally, Andrew Becker, a reporter with the Center for Investigative Reporting, will serve on the federal FOIA Modernization Advisory Committee.

Local governments should be working with local news outlets and journalists in the same way. We have plenty of ideas on how they can improve their open records processes from low-cost fixes, to minor tech training for open records officers, to other solutions that would just require the use of free third-party tools (not being able to receive records via email should is ridiculous). Government agencies should not be waiting on complaints or lawsuits before deciding that their FOIA processes need updating.

Many of the basic documents that journalists often request — FOIA logs, emails, official memos or documentation — should be readily available and searchable online. There’s no good reason to keep the antiquated status quo.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Must read FOI stories – 7/07/14

Every week I’ll be doing a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me (Missed last week because of 4th of July, so you’re getting a double dose this week.)

  • No moving targets in FOIA denials: Missouri judge rules that government agencies cannot give a different exemption than the original one used to deny the FOIA request after being sued.
  • Judicial Watch, a government accountability group, filed a legal motion about the “lost emails” of ex-IRS official Lois Learner.
  • FOIA suffers setback in South Carolina at the hands of the legislature and Supreme Court, which recently ruled that public bodies don’t have to issue agendas for regularly scheduled meetings.
  •  Massachusetts SWAT team claims they’re immune from public records requests, ACLU sues.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

 

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Must read FOI stories – 6/13/14

Every week I’ll be doing a round up of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • A Circuit Court Judge will decide on whether text messages exchanged between government officials need to be released under FOIA in a lawsuit filed by PETA. The first defense the city of Norfolk, Virginia, offered was that its public employees don’t save their messages, then it said there was no way of retrieving them. Maybe their next excuse will be, “The dog ate ’em.”
  • FOI advocacy groups want to close loop holes in FOIA regulations. Advocates say “agencies lack penalties for withholding information, overuse exemptions provided within FOIA and deal inconsistently and unfairly toward requesters.”
  • After 10,000 requests, MuckRock files FOIA lawsuit against the CIA. You can read all about in their editorial, “Why we’re suing the CIA.”
  • FOIA request filed by the Electronic Frontier Foundation reveals FBI’s Next Generation Identification facial recognition program will consist of a database of more than 52 million pictures. FBI Director says he doesn’t think the agency will spy on Americans with it. (Apparently he missed the memo from the NSA.)

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

 

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Toe-to-toe with the Georgia Attorney General

First day on the job at my summer freedom of information internship at the Society of Professional Journalists’ headquarters and I’m thrown smack dab in the middle of a First Amendment fight against the Georgia Attorney General’s office. There’s nothing quite like becoming a (small) Internet sensation among journalistic circles on your first day of work at SPJ. I’m sure my bosses were impressed (even SPJ President David Cuillier wrote about me).

Last Thursday a motion was filed — via state Attorney General Sam Olens — that was seeking to have me remove four pages of public documents I had posted to my blog last August. The documents, which related to a presidential search at one of the colleges, were “inadvertently produced” to me as part of an open records request. The records could have been withheld under an exemption in Georgia Open Records Law, which hides the process of choosing college presidents from public view, but there is no affirmative right of non-disclosure.

SPJ’s Region 3 Director Michael Koretzky campaigned to have other people post the pages to their blog. And some journalists rallied to the cause.

As Susannah Nesmith and Jonathan Peters put it in an article for the Columbia Journalism Review:

After inspiring a minor controversy in media-law circles, the motion was withdrawn on Tuesday—presumably because it was absurd, had no basis in law, and might as well have been written in crayon, given the quality and seriousness of the state’s arguments.

What’s more, a spokeswoman for the AG told the Student Press Law Center that Olens didn’t know about the motion until after it was filed:

Lauren Kane, a spokeswoman for the Attorney General Sam Olens’ office, said Olens was not personally aware of the motion filed by attorneys in his office until this week, when media reports publicized it.

“Once the attorney general learned about it, he ordered it withdrawn,” Kane said. She declined to elaborate on the reasons for the change of course, saying “it speaks for itself that we withdrew it as soon as we learned of it.”

If the AG didn’t know about the contents of the motion, I wonder if he is even aware that his lawyers argued at trial that the Board of Regents (BOR) of the University System of Georgia is a “law enforcement agency” and can therefore invoke the exemption to keep records related to “open investigations” a secret from the public (more on that below)?

All this comes in part of my larger lawsuit against the BOR for violating the Georgia Open Records Act.

The (short) back story

I was investigating a $16 million — later turned $25 million — budget deficit at Georgia Perimeter College, where I was editor-in-chief of the student newspaper. This budgetary shortfall led to 282 layoffs, and there was no valid explanation for why it happened. Also, there seemed to be no fiscal oversight at the university system office, and this is what prompted me to start filing open records requests in July 2012.

The BOR first stonewalled the request by charging an exorbitant cost of $3,000 for the emails I was requesting from top university system officials. I sought help from Frank LoMonte, executive director of the Student Press Law Center, who referred me to my pro-bono attorney, Daniel Levitas. After months of negotiating, the BOR reduced the cost to $300.

Then, after I thought the difficult part was behind me, the BOR began dragging their feet to actually produce the records. It was another six months before the BOR claimed they had “produced everything” to me, excluding records they said were “part of an open investigation” and exempt from disclosure (more on that below). After exploring every amicable option possible to get the remaining records and waiting for the BOR to comply with the law, I filed lawsuit against them in June 2013.

The lawsuit and trial

In August 2013, the BOR’s lawyers at the AG office responded to my lawsuit and produced an additional 713 pages of documents that were responsive to my July 2012 open records request. They claimed that the documents were overlooked and had been sitting in the office of a top university system official waiting to be reviewed. Four of the 713 pages were the ones “inadvertently  produced,” which the AG’s office tried to get me to remove.

The essential issues in this case brought up in trial were:

The BOR’s failure to cite the specific exemption under which material could be withheld following an open records request.

The Georgia Open Records Act mandates that any public entity inform the requestor what exemptions are being invoked by citing the specific code section, subsection and paragraph. I think it’s clear that the trial record is devoid of any evidence that the state complied with this statute.

Imagine that you make an open records request. The public agency answers and tells you, “We have responsive documents for you, but some of the documents we’re not going to give you.” Then you ask them why and they don’t explain.

Anyone should be able to figure out why that is wrong. If a public entity doesn’t properly cite the specific exemption they are using under the law, you have no way of challenging that.

The BOR’s late production of 713 pages

It’s undisputed that these pages were produced to me only after I filed lawsuit. This was not a single piece of paper stuck in a copy machine. This was 713 pages, which were never turned over to me until I took legal action. Would they ever have been turned over to me had I not filed suit?

The BOR’s improper use of O.C.G.A. § 50-18-72 (a)(4)

It was not until one week before the lawsuit that I ever learned what specific exemptions the BOR invoked. On the first day of trial, the AG’s office brought another stack of documents. They claimed that some were withheld pursuant to the “open investigations” exemption, for in-camera review by the court.

Take a look at the actual statute:

(4) Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution (emphasis added)

To me, that clearly states that if you’re not a law enforcement, prosecution, or regulatory agency, you can’t invoke this exemption.

Since the AG was unaware of the egregious motion his lawyer’s filed, I wonder if he’s aware that they made the argument that because the BOR sometimes works with law enforcement agencies on investigations that in turn makes them a de facto law enforcement agency.

More damning is the last section of the paragraph that says it shouldn’t apply to the records of an agency that is the subject of said investigation. Simply put, if the Georgia Bureau of Investigation (a law enforcement agency) is investigating the University System of Georgia, then the GBI’s records are closed, the university system’s are not.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Wisconsin court decision prompts question: Does motive of requester matter in FOI requests?

In a ruling earlier this month, the Wisconsin Court of Appeals set a precedent of allowing state officials to consider the purpose of a citizens’ public records request before handing over documents.

Background

Korry Ardell filed an open records request with the Milwaukee School Board for a specific employee’s record of sick days, notes or disciplinary actions and investigations of the employee. The school board denied the request because of Ardell’s past with the employee — he was accused of abusing the employee, and the employee had a restraining order against him in the past. The school board concluded that “the public interest in protecting the safety and welfare of the employee clearly outweighs the public interest in disclosure in this instance.”

The trial judge agreed with the school board, and Ardell appealed.

A Public Records Balancing Test?

According the the appeal, “Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.

Rather, Ardell’s violent history with the … employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons.

Ardell told The Associated Press that he wanted the records to show the employee wasn’t credible and that she was abusing sick leave and employee benefits.

Problems with considering FOI motivation

As an editorial from The Fond du Lac Reporter notes, denying Ardell’s request given his past certainly sounds reasonable. But now government officials have yet another obstacle they can use to impede access to public records. Anyone who’s ever dealt with a freedom of information request, even once, will tell you that the process is a complete “hassle” — but with much more colorful language.

Currently, public officials will deny FOI requests without cause, estimate exorbitant costs (which basically become an analog to an outright denial), fail to respond, use vague exemptions, gray areas or misinterpret the law. Do we really want to give the government another reason they can use?

They use the law to their advantage to “shut the public out.” And to reiterate The Fond du Lac Reporter, “This is a loophole that needs to be closed as quickly as possible — by the courts or by the Legislature.”

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

FOI Daily Dose: Louisiana’s public records victory points to larger abuses of the law

A panel of the 1st Circuit Court of Appeal in Baton Rouge upheld a judge’s ruling that Louisiana State University is not privy to the governor’s office public records exemption, according to The Associated Press.

LSU was using the governor’s “deliberative process” exemption to hide the names of three dozen candidates in its closed-door search for a new president. They hired former University of California-Long Beach President F. King Alexander, who started in June.

The Advocate and The Times-Picayune filed lawsuits seeking names of the other candidates. But LSU board members said keeping the names quiet allowed sitting chancellors and presidents to avoid jeopardizing their current positions.

After district judge Janice Clark ruled in April that the records are public and must be released, LSU requested the 1st Circuit Court review the decision, according to the AP. The court panel on July 19 supported Clark’s ruling.

“This is very good news, and we are thrilled,” Lori Mince, an attorney for The Advocate, told The AP.

But Mike Hasten, capital bureau chief for Gannett Louisiana newspapers, said this victory for open government advocates is only one in a long list of exemption abuses. He published an editorial in The News Star on July 20 explaining the larger problem about how LSU and other agencies are wrongfully using an exemption for the governor’s office to keep sensitive material out of public view.

Governor  Bobby Jindal backed legislation four years ago that removed a blanket exemption for the governor’s office from the public records law and replaced it with a provision called “deliberative process” that exempts “any documents or other types of communication used by the governor to make a decision,” Hasten said.

Rep. Mike Danahay, D-Sulphur, told The Advocate lawmakers never intended the “deliberative process” claim to be used beyond the governor’s office.

The exemption specifically protects materials “relating to the deliberative process of the governor.” It said: “The provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor.”

But even so, agencies using the exemption attribute their decision to a 2004 court ruling from the 1st Circuit Court of Appeal that allowed the Public Service Commission to shield some records from a legislative auditor. The Advocate said this decision had nothing to do with the public records law.

“They’re doing something outside of what it was intended to do, and that needs to be addressed,” Danahay told The Advocate.

Hasten said it’s up to the public to assert the public records law and challenge agencies when they misuse it.

“Because they have not been legally challenged on that and until a court says they can’t do it, they probably will keep doing it in violation of state law,” Hastens wrote for The News Star.

An attorney for LSU told the AP that LSU will return to Clark in state district court for her decision on the damages and attorney fees.

The AP said LSU will get its chance to appeal the decision, but it’s unclear whether they will ask the Louisiana Supreme Court to review the issue.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

Email this to someoneTweet about this on TwitterShare on Google+Share on FacebookShare on TumblrPin on PinterestShare on Reddit

Connect

Twitter Facebook Google Plus RSS Instagram Pinterest Pinterest LinkedIn


© Society of Professional Journalists. All rights reserved. Legal

Society of Professional Journalists
Eugene S. Pulliam National Journalism Center, 3909 N. Meridian St., Indianapolis, IN 46208
317/927-8000 | Fax: 317/920-4789 | Contact SPJ Headquarters | Employment Opportunities | Advertise with SPJ