When governments sue public-records requesters (original) (raw)

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When you send a public records request to a government agency, you might expect a delayed response or high costs to fulfill it, even a denial—but you probably don’t expect to be sued by the agency. Yet that very thing happened recently in New Jersey, prompting a judge last week to dismiss the suit and conclude that a public policy enabling the authorities to sue a requester would be the “antithesis” of open government.

It’s not common for a public agency to sue a records requester, but it’s also not unprecedented. The agencies, fortunately, have not fared well in court, though the suits appear to have become more frequent in recent years—and in some cases they have targeted a news organization. So, to get a better sense of how these cases arise and get resolved, let’s unpack the New Jersey one and put it in context.

In March, a private citizen named Harry Scheeler Jr. sent a request to Hamilton Township for surveillance footage of the town-hall and police-department buildings, making the request under the state Open Public Records Act (OPRA) and the state common law right of access to public records. A few weeks later, instead of responding to the request, the township sued Scheeler and asked a local court for relief from any obligation to respond, then or in the future. The township also asked for attorney’s fees.

Scheeler narrowed his request, but the township didn’t withdraw its suit—and eventually a judge did, temporarily, relieve the township from any obligation to respond. Scheeler countered that only the requester, not the government, could initiate a public-records lawsuit.

The case moved to a different judge—and he agreed with Scheeler, ruling that the right to initiate a suit belongs to the requester and that by filing a suit the township had “deprived him of his right to choose the forum in which to have a denial of his request adjudicated, or, indeed, to simply walk away if the request was denied.”

The judge also made a point that likely will seem obvious to journalists: Permitting the government to initiate a suit against someone who requests public records is contrary to the principles underlying FOI laws. He wrote:

A government … lawsuit against … requestors subjects them to involuntary litigation with all of its concomitant financial, temporal, and emotional trimmings. A public policy that gives a government agency the right to sue a person who asks for a government document is the antithesis of the [OPRA and common-law policy of providing] citizens with a means of access to public information to keep government activities open and hold the government accountable.

The court dismissed the township’s lawsuit and invited Scheeler to apply for attorney’s fees. (The judge didn’t address whether the township ultimately could deny Scheeler’s request.)

‘It shouldn’t be allowed’

The court was correct: These suits are noxious to transparency and accountability. Thankfully, they are uncommon—but, as I said above, not unprecedented. Here are five examples that show their variety:

• In 2014 in a case we covered here at CJR, the city of Billings, Montana, sued a local newspaper after it requested records related to an investigation of landfill funds. The city asked the judge to determine which records to disclose, but the judge ruled that the city had improperly sued the paper and otherwise had withheld disclosable records.
• In 2012, a Vermont court ruled that a school supervisory union had improperly sued a person who requested records related to why he was banned from school property. The court said the state public-records law did not permit government agencies to sue requesters.
• In 2005, the North Carolina Supreme Court’s refusal to hear an appeal in a public-records lawsuit let stand a lower court ruling that the government may not sue requesters. The case began when the city of Burlington sued The Alamance News after it requested city-council meeting minutes.
• In 2002, in a case involving a request for records related to the city of Manhattan Beach’s hiring of a police captain, the Supreme Court of California ruled that a public agency may not sue a requester regarding its duty to disclose particular records.
• In 1993, the Supreme Court of Texas ruled that an internal memo outlining the reasons a city should fire its finance director was a public record—and that a government agency may in fact sue a requester (here, The Dallas Morning News) to determine whether a record is disclosable.

(Note: these suits differ from reverse-FOI suits, in which a third party sues to prevent a public agency from releasing information about it to a requester. Learn more about such suits here.)

In some of these cases, the government feared being sued itself, and initiated litigation to try to force the court to decide whether the records were public. Still, in each case, there was a risk that the free flow of information would be chilled because of the government’s actions. Adam Marshall, a legal fellow at the Reporters Committee for Freedom of the Press, put it this way: “When public agencies force members of the public to appear in court to defend their right to know, everyone loses. The public loses faith in the institutions that are supposed to work on their behalf, valuable resources are spent on litigation, and ultimately the democratic nature of our government is itself weakened.”

And Dave Cuillier, chair of the SPJ Freedom of Information Committee, likened these lawsuits to SLAPPs, because they force a person to surrender or to hire an attorney and defend the suit, a cost and burden that some can’t take on.

“Which is problematic,” Cuillier said. “It shouldn’t be allowed.”

Fortunately, the courts have tended to agree.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.