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United States Government The Courts The Media

Governments Turn Tables By Suing Public Records Requesters (apnews.com) 145

schwit1 quotes the AP: 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."

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Governments Turn Tables By Suing Public Records Requesters

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  • by HalAtWork ( 926717 ) on Sunday September 24, 2017 @09:33AM (#55254187)

    If this keeps happening they risk being in contempt of the court by filing frivolous lawsuits against legitimate actors.

    • by Opportunist ( 166417 ) on Sunday September 24, 2017 @10:05AM (#55254295)

      I was just wondering that. Over here, judges tend to be VERY upset at people and organizations that obviously just waste their time and get VERY creative when it comes to getting back at them.

      • I was wondering what if a lot of people who legitimately wanted get some piece of information filed freedom of information act requests all within a very short amount of time. That would be a lot of lawsuits very quickly and a lot spent on filing fees with the courts.

      • by Anonymous Coward

        That's why the agencies will cherry pick the courts where they file to guarantee the most sympathetic judges as co-conspirators in their plots to disenfranchise the people. They can often count on a complicit appeals process and the desire of the Supreme Court to not have to school every petty tyrant judge every time it happens.

      • by houghi ( 78078 )

        Reminds me of a letter I saw that was send to the local Belgian MAFIAA that said (paraphrasing here) "If you do not fuck off with filing complaints to grandma's for sharing a copy, we will find you and we will kill you" However they also said "If there are people who make money of copies, we are glad to help you."

    • by Wrath0fb0b ( 302444 ) on Sunday September 24, 2017 @10:18AM (#55254347)

      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.

      Unless of course the judges are correct that, under current law/caselaw, the records being sought are exempt from disclosure. I mean, to me that really seems like a fact-based inquiry into each set of records and countervailing lawsuit that is the fundamental crux here.

      Or to put it another way, I believe the following statements concurrently:

      (1) If agencies are filing lawsuits trying to prevent disclosure of documents that clearly covered by the various (Federal, State, local) FOIAs, they should be sanctioned for frivolous lawsuits as the OP suggests.

      (2) If the agencies are filing lawsuits trying to prevent the disclosure of documents that are clearly not covered by the relevant FOIA, the court should grant their request and remind the requesters not to file frivolous FOIA requests. As noted/quoted in TFA, they aren't seeking monetary damages, just a ruling telling the filers to go away.

      (3) If the sought-after disclosure is neither obviously covered nor exempt from disclosure, then the court should rule on it in the context of those specific facts. I'm sure that there are finer points of FOIA law that either the filers or the agency could reasonably be wrong about and would need to be corrected. That's what the courts are for (I thought).

      I'm really surprised that any of these statements would be controversial. I'm not surprised, however, that both sides of the debate would try to lump everything together into an ideological uniformity instead of wanting to delve into the fact-specifics about whether a particular record is covered or exempt under some (probably complicated) law.

      • Case 2 can be resolved by simply denying the request.

        • First off, how is the agency unilaterally denying the request preferable to having the opinion of a neutral judge ruling on whether the request is covered/exempt? In your suggestion, they make that determination on their own authority whereas in the latter they have to present a legal/factual justification for their position.

          Second, the agency may actually want to have the request adjudicated by a court rather than by their own fiat so it can having binding precedent if another individual files a substantia

          • by Anonymous Coward

            It is there job to determine whether the request is covered or exempt. That is not only the power that the FOIA gives them, it is also their obligation. And as servants of the state they are expected to do there job.
            Involving the courts is a last measure, only to be utilized if the requester and the agency cannot agree on the legitimacy of the request.

            This is so obvious to everyone, and common practice in all other human affairs, that it apparently was not stated explicitly in the law. Now we have some fuck

          • If the agency is sued by a requestor after denying a request, the requestor is generally entitled to an award of legal fees if a court finds that the request is legitimate. If the agency sues the requestor preemptively to prevent the release of information, they generally are not. That's the difference.
    • by SwashbucklingCowboy ( 727629 ) on Sunday September 24, 2017 @10:37AM (#55254423)

      They don't care - it's taxpayer money. As long as they don't suffer any serious consequences they'll keep doing it. If judges start throwing people in jail for refusing to turn over records then things will change. It's called accountability. Without something like that, this will continue.

    • If this keeps happening they risk being in contempt of the court by filing frivolous lawsuits against legitimate actors.

      I wonder how many of the lawsuits are against frivolous information requests. For example yet another request to NASA about where the aliens are hidden. Might be a valid move for these.

    • Let them go to court and discover the Streisand Effect
  • by elrous0 ( 869638 ) on Sunday September 24, 2017 @09:35AM (#55254197)

    Many of these information outlaws failed to even submit Forms 223981A-1 and 32871BC-5, Application For Permit To Become Information Criminal and Certification of Illegal Information Gathering. That makes them double criminals!

    • by Anonymous Coward on Sunday September 24, 2017 @09:45AM (#55254219)

      Trump needs to remember the reason he was voted in: put and end to this deep-state bullshit.
      Suing the citizen is exactly the kind of shit you get once you start warrantless mass surveillance of the Americans (Bush, Obama), spying on journalists (Obama), sending the IRS after the dissenters (Obama), putting the whistle-blowers to jail (Obama).

      Manning, Assange, and Snowden need to be fully exonerated and given a medal of freedom. Obama stooges need to be jailed and tried for seditious subversion of the constitution.

      • by Opportunist ( 166417 ) on Sunday September 24, 2017 @10:06AM (#55254299)

        And you think that's going to happen? In this or any administration?

      • Re: (Score:1, Funny)

        by Anonymous Coward

        Trump may have heard of those three names in passing on Fox News. But if you think he's thought deeply about any of the issues surrounding them, there's lots of bridges in DC for you to buy.

        Now if he could get a massive gold statue of himself erected on the Mall for defending the rights of American citizens by full exoneration of those folks...then you're barking up the right tree.

      • by Anonymous Coward on Sunday September 24, 2017 @10:40AM (#55254437)

        Yeh right, deep state, that's the reason Trump is a whiney little bitch that can't do anything but complain about everything. It's all a secret cabal of Obama/Bush loyal Civil Servants conspiring to make him look incompetent/treasonous.

        R-i-g-h-t.

        Oh and LBGT military, who he banned 4 hours after he was notified that Manasfort house had been raided? Those gay soldiers are all part of this conspiracy too?? r-i-g-h-t.

        Why did they not do his budget? That 1 page budget? Was that a) deep state Congress Republicans, or b) it's a one page budget that shows zero grasp of what the vast work the US govt does and the contracts its committed to already? Did the the Republicans throw it out because it was a joke from an clueless idiot, or because they're part of a giant conspiracy to make Trump look bad?

        Are NFL players are part of this big deep state conspiracy? Or is he attacking them to distract from Manasfort emails with Putin's men about the large chunk of 'black caviar" he received for his work.

        And his $15/month healthcare, did that die because a) it's not real, a fiction, a made up lie told to gullible people who want it to be true, or b) deep-state conspiracy.

        And of course the press, don't get me started about the fake news constantly fact checking everything he says. Sooooo deep state.

        Keep up the faith A/C. Keep telling yourself you weren't conned by a professional conman.

        • by rtb61 ( 674572 )

          Well, yes, Deep State and Shadow Government are running the US government. C'mon be serious, you seriously think that Don Don the Orange Orangutan is capable of running the US government, c'mon be serious, don't be silly. Where the hell do you think all those military generals and bank executives et al in the current administration came from (hint, hint, deep state and shadow government). Sure Don Don though it would be cool to turn the swamp into a jacuzzi for the rich and greedy because they like the smel

          • Don Don is nothing more now than an ignorant orange clown with a bad wig

            Now?

            If he really wanted to spend on infrastructure, he could tell us that. But he's over it.

      • So, all the cases cited in the article were state and local governments. What the federal government would do about it, Isn't super clear to me. Unless your asking for more federal oversight of local and state governments?
      • How much has Reichsfuhrer Pussygrabber done to end mass surveillance?
    • by Anonymous Coward

      Actually you are not too far off the mark. After an incident with my child at school, I had to file 7 FOIA requests to get a copy of the video. When I first started filing them, various people within the school were insisting that I use a non-existent form. I also had to pay $180 for an external company to recover the video from the system (via USB in five minutes). They kept redacting the video with various excuses, such as there were other children in the frame (a lie). When I finally received all 7

  • by jellomizer ( 103300 ) on Sunday September 24, 2017 @09:46AM (#55254225)

    Denying a FOI may be a good reason to do so. Such as protecting protecting confidential information. For example if you want the Medicaid Health Records of the guy who lives down the street, because you think he is a druggy.
    However information that shouldn't be denied is if it just happens to put the officials in a bad light. So they may had rushed that contract for the new building and went with a known vendor. While the reason to do so, is because the building needed to be built quickly, and the known vendor had a good track record for quality. However releasing this information will just mean for the person who approved it a bunch of extra problems, to defend his actions, and explanation on after the fact solution's. Now this is information that still should be available even if it puts someone who was trying to put the benefit of the community ahead of his own, but still we should know about this, as it could lead to abuse in the future and the person will be held accountable, even just politically.

    Politicians need to realize that they serve the community and their job there is at the privilege of the community. If they want him out, then their job is over.

    • by chill ( 34294 ) on Sunday September 24, 2017 @09:52AM (#55254245) Journal

      FOIA requests aren't automatically granted. There are legitimate reasons to deny the requests, or redact the material. The agency who is processing the request can say "no" and cite one of the valid reasons.

      Filing lawsuits against the requester is akin to saying "there is no valid reason to deny the request, but I want to anyway". It is disgusting and these types of lawsuits should be summarily dismissed by the court where they are filed.

      • by arth1 ( 260657 ) on Sunday September 24, 2017 @11:05AM (#55254529) Homepage Journal

        Filing lawsuits against the requester is akin to saying "there is no valid reason to deny the request, but I want to anyway"

        I can see a situation where it's "there is no legal reason to deny the request, but there likely should be". In a common law system, creating a precedent can be very helpful in cases where the law hasn't been established well enough yet. Like there may not be a prohibition against walking your pet alligator on a public sidewalk, but getting a judge to declare that alligators are inherently unsafe would allow a district to ban it.
        For FOIA requests, there may likewise be some areas where it's unclear. But what's wrong is suing the person who files the FOIA request, and expect them to front much of he costs of court proceedings. The filing should be against their own agency to prevent them from disseminating the information, if they think it's likely that a judge will rule against it being released.

        • by swb ( 14022 )

          I can see a situation where it's "there is no legal reason to deny the request, but there likely should be".

          Then they should turn to their various intra-governmental lobbyists and get the law changed. If there "should be" a reason for a law or a change in a law, then that's what the legislature is for -- to debate the merits of proposed laws and implement them.

          The reason they don't is that FOIA really isn't that controversial as a matter of law and policy and the kind of minutia they want to micromanage isn't really practical and generally conflicts with the intent and spirit of the law. It's specific bureaucra

          • by arth1 ( 260657 )

            These court challenges by government entities really are a reprehensible attempt to achieve legislation through judicial action.

            That's unfortunately a feature of the common law system.
            It allows the lawmakers to not spend much time on making comprehensive laws where the intent is well codified and unambiguous, but instead spend time on playing politics and leave the brunt of the law making to the judicial system.
            I don't see that changing any time soon, so using the judicial system to create law is par for course.

        • by Anonymous Coward

          I can see a situation where it's "there is no legal reason to deny the request, but there likely should be". In a common law system, creating a precedent can be very helpful in cases where the law hasn't been established well enough yet.

          The proper response in that case would be to deny the request. This forces the requester to initiate a lawsuit if they still wish to access the information, and provides the denying agency the opportunity to defend their decision in court.

          There is no excuse for suing someone for following the legally established process to request information from their government. This is an attempt at intimidation.

        • by Zxern ( 766543 )

          Because there is a process in place already. They can deny the request and if the petitioner wants to fight that, then they can go to court and hash out a precedent.

    • by caseih ( 160668 ) on Sunday September 24, 2017 @09:54AM (#55254251)

      As the articles said, these government entities very well could just refuse a request for some reason (such as one of the reasons you suggest). But they aren't doing that; they are filing lawsuits against the requester. That's where the problem is and that's what this whole article is about. This is what is absurd, malicious, and pernicious. And it's getting worse.

      It's interesting to see how American institutions, politics, and bureaucracy, are steadily on the decline, both from within and without.

    • by CrimsonAvenger ( 580665 ) on Sunday September 24, 2017 @10:03AM (#55254287)

      Denying a FOI may be a good reason to do so. Such as protecting protecting confidential information.

      Read about this a couple-three days ago.

      No, this is not so nefarious as wanting to keep things secret from the public. Suing the requester is a tactical move designed to make sure the government doesn't have to pay the requester's legal fees.

      If the requester sues the government to get release of the records, and wins, the government is on the hook for the requester's legal fees.

      If the government sues the requester and loses (same effect as previous case, in regards to the records in question), the government is NOT liable for the requester's legal fees.

      • The effect is not the same if you assume that the requestor may not be able to get help with legal fees up-front, and may be at a disadvantage when faced by a lawsuit.
      • by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Sunday September 24, 2017 @10:52AM (#55254481) Homepage Journal

        No, this is not so nefarious as wanting to keep things secret from the public. Suing the requester is a tactical move designed to make sure the government doesn't have to pay the requester's legal fees.

        So what you're saying is that this is a means of keeping things secret from the public by making it potentially prohibitively expensive to request the data, even if you have a legal right to do so? Got it. Thanks!

      • If the government sues the requester and loses (same effect as previous case, in regards to the records in question), the government is NOT liable for the requester's legal fees.

        So party A can attack party B in a court of law and if party A loses, then party B is not defrayed the cost of defence? Wow. That means that any party with sufficiently deep pockets can attack any relatively poor party, safe in the knowledge that it can bankrupt the other...

    • For example if you want the Medicaid Health Records of the guy who lives down the street

      Medicaid health records aren't covered by FOIA.

    • by Tailhook ( 98486 )

      Denying a FOI may be a good reason to do so.

      This isn't about "denying." These bad actors in government (yes, such things actually exist) are not simply denying the requests, which would precipitate a legitimate legal process. They are using the courts and their legal budgets to intimidate applicants. This is clearly spelled out the story itself. Try reading it. Warning; it doesn't have a happy ending where all the blame gets laid off on some corporation.

  • by ArchieBunker ( 132337 ) on Sunday September 24, 2017 @09:50AM (#55254241) Homepage

    In the old days corrupt and unruly government officials would be tarred and feathered (or worse) so they knew to behave. Government works for the people not vice versa.

    • by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Sunday September 24, 2017 @10:50AM (#55254477) Homepage Journal

      In the old days corrupt and unruly government officials would be tarred and feathered (or worse) so they knew to behave.

      In the old days, inconvenient or unruly citizens would be whipped or beaten (or worse) so they knew to stay in their place.

      In the old days, we didn't have antibiotics.

      The old days were shit.

      • Thank you.
        Regressing to the primitive and to what 'feels good' is the problem, not the solution.

      • by ArchieBunker ( 132337 ) on Sunday September 24, 2017 @01:56PM (#55255117) Homepage

        Did I say we should turn back the clock? I'm saying maybe its time to hold politicians personally responsible for the harm and corruption they cause. Asking the government to investigate itself works about as well as the police doing the same.

        • Did I say we should turn back the clock? I'm saying maybe its time to hold politicians personally responsible for the harm and corruption they cause.

          Subject says you miss the old days, not merely that you miss ridin' politicians out on a rail.

      • Re: (Score:2, Insightful)

        Today things are worse than ever. There is a Nazi in the White House and the world is falling apart at the seams. Pollution, global warming, climate change are all desperate issues that need fixing immediately without any debate. Our problems with police, race and gender inequality, healthcare, income inequality, disregard for the environment, woefully inadequate education system, warmongering and recently insane politics with a president who continues to publically call for his detractors to lose their

        • Today things are worse than ever.

          They are both better and worse, because there are so many things.

      • by Agripa ( 139780 )

        In the old days corrupt and unruly government officials would be tarred and feathered (or worse) so they knew to behave.

        In the old days, inconvenient or unruly citizens would be whipped or beaten (or worse) so they knew to stay in their place.

        We will run out of government officials before running out of citizens so it sounds good to me.

  • by jm007 ( 746228 ) on Sunday September 24, 2017 @10:07AM (#55254301)
    don't know about you all.... but for us frogs, we like it when the water warms up.... feels good so I'm not complaining
  • by Anonymous Coward on Sunday September 24, 2017 @10:19AM (#55254351)

    is SLAPP [wikipedia.org]

  • by JustAnotherOldGuy ( 4145623 ) on Sunday September 24, 2017 @10:40AM (#55254439)

    Silly citizens- how DARE you want to use the law to request things that you have the legal right to see?

  • Time to update the FOIA with teeth. Something along the lines of filing a lawsuit or other attempt to obstruct an FOIA request makes the government employees/elected officials involved automatically liable to felony obstruction charges if they lose the lawsuit and must personally pay the state legal fees and the legal fees of the FOIA requestor. Such lawsuits must be settled in 90 days or summary judgement is made for the FOIA requestor. Further, any elected officials who file such a lawsuit immediately

  • The tables were already turned against citizens, otherwise the requests would not need to be made proactively.
  • but not with the current legal system. the main problem is unlike Europe, there is no article 47 here granting a right to civil counsel. Instead, you are pro se, and might have no resources to prepare a case to defend your FOIA. This is the tactic the government is relying on to win. They know you cannot afford to bring a case in court, so you have a great risk to the judge siding with the government.

    The benefit is in some cases you can bring your case, and a judge might side with you..

    https://www.obamaswea [obamasweapon.com]

  • Things get strange with state and local governments because you can have an administration divided among different parties. If the Attorney General, Secretary of State, Treasurer, Comptroller, etc are of different parties, it may be that one of them wants to refuse document requests in a way that minimizes costs because of the inability to get money from another piece of the administration. For all I know, if moves the costs of the fight to someone else's budget. Things like this can get weird as all get ou

  • We have this lofty idea that FOIA request are a lynch pin of democracy and open government, but there's another side to this that bears examination. Public records requests are often used to harass local government entities. I'm aware of a public library near by that was inundated with requests because the requestor was against the library's policy on internet access. They did not filter ALL their PCs for pornography BECAUSE it's a free speech issue. It isn't illegal, therefore the government cannot prevent

    • by Shotgun ( 30919 )

      They responded wrong. In fact, most of government responds wrong.

      Instead of waiting for a FOIA request, post all the info...everything...meeting minutes, budget, whatever is legal for the public to see...on an Wiki. The public has read access. Only proper officials have write access.

      Why are they waiting for request before reporting what they are up to?

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