Posts Tagged ‘public records law’


State legislatures veer toward secrecy

Troubling legislation in four states would seriously undermine the public’s right to know and ability to hold government officials accountable.

Two of the bills — in Indiana and New Jersey — would restrict access to police body camera footage. Legislation in Florida would make it more difficult for citizens and the press to challenge improper government secrecy. And Massachusetts lawmakers are set to vote on a measure that, while aimed at improving the state’s public records law, could do the opposite.

Open government groups have raised concerns about each of the proposals.

Indiana: Police video recordings

A still of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police and a man who fired shots at officers.

A still image of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police officers and a man who fired shots at them.

The Indiana House of Representatives on Tuesday passed a bill that would impose numerous roadblocks on journalists and others who want to obtain police body camera and dash camera videos.

Police already have wide discretion to deny release of such recordings — decisions that can be difficult if not possible to challenge, according to the Hoosier State Press Association.

Under the legislation, House Bill 1019, only two classes of people would be entitled to inspect police video recordings: (1) those depicted in the videos, and (2) when a video shows the interior of a property, the owner of that property. Neither would be allowed to make copies of the recordings, but rather would only have a right to view them.

Anyone else, including reporters, would have to file a lawsuit to obtain a police video recording. Requesters would have to show that disclosure is in the public interest, does not create “significant risk of substantial harm to any person or to the general public,” and will not prejudice civil or criminal proceedings.

If a court orders release of a recording, police would be required to obscure a litany of depictions, such as acts of severe violence, anyone who is under 18 years of age, and crime victims and witnesses.

Requesters who prevail would not be entitled to get their attorney’s fees reimbursed.

The bill could also hamper newsgathering by requiring record requesters to know particular details of every video being requested. Requesters would have to provide the date and time of the activity that was recorded, where that activity occurred, and the name of at least one person who was “directly involved” in the activity but not in a law enforcement capacity.

The Hoosier State Press Association, Indiana Broadcasters Association and Radio Television Digital News Association are opposed to the legislation.

It now goes before the state Senate.

New Jersey: Police body camera footage, 911 records

Similarly, a New Jersey legislator has introduced a bill that would entirely exempt release of police body camera footage from the state’s public records law, along with audio recordings and transcripts of 911 calls.

The bill’s author, state Sen. Paul Sarlo, has said he might amend the legislation to allow for disclosure when police are involved in altercations.

Sarlo represents several municipalities that are being sued by the press for access to records about a 2014 incident in which police shot and killed a 23-year-old black man.

Florida: Reimbursement of attorney’s fees

A Florida bill would make it more difficult for the public and press to enforce the state’s public records law.

The legislation “would remove the requirement that government officials who intentionally violate the state’s public records law pay attorney’s fees when citizens take them to court,” according to the Tampa Bay Times.

Instead, the bill would make reimbursement discretionary, letting judges decide when plaintiffs who prevail in public-records lawsuits should have their attorney’s fees covered.

Many states have cost-shifting provisions similar to Florida’s current version, which often are the only way plaintiffs can afford to go to court.

The legislation advanced Tuesday in a state Senate committee; a state House of Representatives committee already signed off on a companion bill.

Massachusetts: Public records law reform needs reform

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

The Massachusetts Senate is expected to vote within the next few weeks on legislation aimed at improving the state’s public records law, but the proposal has numerous problems, according to Danielle McLean, president of SPJ New England and a member of SPJ’s national Freedom of Information Committee.

The measure, along with a companion House bill that passed late last year, seeks to limit some fees assessed to record requesters and provides for the possibility that plaintiffs who prevail in public-records lawsuits can have their legal expenses reimbursed. But as McLean points out, the legislation has serious problems:

  • It welcomes delays. The legislation would allow the government to wait more than two months to respond to record requests. Currently, officials are supposed to respond within 10 days, but the bill would expand that deadline to 60 days for state government and 75 days for local governments.
  • It restricts enforcement. The bill would require that public-records lawsuits be filed within 30 days of a denial being issued, a fairly narrow window to appeal. The legislation also does not mandate that plaintiffs who prevail will get their legal fees reimbursed; that decision would instead be up to a judge.
  • It fails to address gaping holes. The bill also does nothing to make the public records law apply to the governor, state Legislature or state court system, although it does authorize a study to explore that possibility.

McLean and other freedom of information advocates held a rally last week on the steps of the Massachusetts State House in Boston, calling on senators to amend the law so it requires faster responses to public records requests, provides stronger enforcement mechanisms and reduces fees charged to requesters.

Approximately 25 to 30 people participated in the rally, including journalists, activists and college students.

“During the rally, we had some awesome dialogue, made a lot of noise, and gained some good momentum for the cause,” McLean said.

Jonathan Anderson is chair of the Society’s Freedom of Information Committee.

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.

FOI Daily Dose: Attorney sues Carolinas HealthCare System for withholding confidential settlement

A Charlotte attorney is suing Carolinas HealthCare System for allegedly violating the state’s “sometimes-ambiguous” public records law by keeping a settlement confidential, according to The Charlotte Observer.

Attorney Gary Jackson is arguing that Carolinas HealthCare has no legal right to keep its settlement confidential, and he’s asking for a court order to force disclosure of the document so he can see if it’s fair.

Carolinas HealthCare won the confidential settlement in a court complaint in 2008 against the former Wachovia Bank. The hospital system said the bank broke its promise to put the hospital’s money in low-risk investments. One of their investments fell from about $15 million to $1.8 million, according to The Observer.

The hospital system’s board of directors in 2011 went into a closed session to approve the settlement, but they kept it confidential and refused to provide copies of the agreement.

Jackson and Carolinas HealthCare representatives came before a Superior Court Judge this week in a hearing to present their case.

The hospital is motioning to dismiss Jackson’s suit because the public records law does not explicitly say suits filed by a government agency are public records.

Mark Merritt, a lawyer representing the hospital system, said public disclosure could cost public bodies more money. He argued that the settlement falls through one of the public records act’s many loopholes because the law only requires public release of “any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government.”

“I describe (the public records act) as a Swiss cheese,” Merritt said at the hearing. “It’s got a lot of holes in it.”

Jackson agreed the law does have holes, but said he doesn’t believe confidential settlements in lawsuits filed by public agencies should be allowed to slip through and evade the public eye.

“It’s a public body and there needs to be that transparency,” he said.

Jackson said even though Carolinas Healthcare is the largest employer in Mecklenburg County, it is “not known for transparency.”

Carolinas HealthCare system is a public, tax-exempt hospital, but Mecklenburg County officials have criticized it for acting more like a private organization than a public one, The Observer reported.

The Observer lists a series of speculative open records and open meetings violations committed by the hospital, including failing to share data about a county-owned psychiatric hospital, not inviting the public to quarterly board meetings and not providing The Observer with its administrative expenses.

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.

FOI Daily Dose: More public records in North Carolina and Minnesota

North Carolina rules private school police must disclose records

New legislation in North Carolina requires campus police at private colleges and universities to publicly disclose records, including narrative descriptions about arrests and 911 calls, according to the Fayetteville Observer.

The General Assembly ratified the bill Wednesday, and it’s awaiting the governor’s signature. A former student journalist at Elon University, Nick Ochsner, filed a lawsuit two years ago when his campus police refused to produce an incident report about a student because Elon was a private school.

Minnesota sheds more light on public employee payouts

Changes to the Minnesota state public records law broadened the type of administrators who must explain why they were paid to leave their jobs early, according to the Pioneer Press.

The public records law, known as the Minnesota Government Data Practices Act, applies to teachers, school administrators and other government workers. Rep. Pam Myhra (R-Burnsville) introduced the measure to improve transparency in 2012, arguing that since public employee payouts are funded by public money, the public should know where its money is going.

Despite some gains, administrators still don’t have to disclose the complaints leading up to their resignation. The executive director of the Minnesota Association of School Administrators told the Press this protects public employees when the complaints that cost them their jobs are “totally false.”

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.

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