Missouri Judge Shuts Down Department Of Corrections' Attempt To Move The Goalposts During A FOIA Lawsuit

from the still-always-a-few-minutes-before-sunrise-in-most-govt-agencies dept

You can't tell the players without a program and, apparently, you can't get your public documents without a lawsuit. Freedom of Information laws -- both at federal and state level -- were supposed to make the government more accountable to its citizens. In practice, this has often taken the form of withholding requested information until ordered otherwise by a judge. Not exactly transparent and not exactly a brand new level of accountability. It bears more resemblance to a three-year-old being forced to relinquish whatever's currently being clenched in a tightly-closed fist.

The three-year-old in this case is the Missouri Dept. of Corrections. And not only did it have a tight grip on some documents, it also wanted to make up the rules as it went along.

While plaintiff Allaedin Qandah was being held at one of its facilities, his copy of the Quran was damaged during a cell search, something he alleges was done intentionally. The ACLU, representing Qandah, requested documents pertaining to "copies of any and all records relating to [Qandah's] IRR # NECC 11321 - property damage."

The Missouri DOC found 14 responsive documents but refused to surrender any of them.

On May 17, 2012, Heather McCreery, Legal COunsel for DOC, replied in writing to Hill denying the request for the records. In her letter she cited Federal Regulation 28 CPR. 40.10 as grounds for denial pursuant to Section 610.021(14).

So, the ACLU sued for the release of the documents. The DOC filed response to the lawsuit suddenly added even more exemptions, none of which had been contained in its original denials.

DOC modified its position in its First Amended Answer to claim three additional reasons for closing the records besides the one claimed in McCreery's letters. DOC now claims "[t]he requested records are exempt from disclosure under 610.021(14) and 217.075.1(3) RSMo" and as "internal administrative report[s] or document[s] relating to institutional security." DOC also asserts that "[t]he Requested Records are Exempt from Disclosure under 610.021(13)" as "[i]ndividually identifiable personnel records, performance ratings, or records pertaining to employees or applicants for employment." Finally, DOC states that "[t]he requested records are exempt from disclosure under 610.021(10)" because they "relate [l]egal actions, cause of action or litigation involving a public governmental body and any confidential or privileged communication between a public governmental body or its representatives and its attorneys."

The Court wasn't too impressed with the DOC's last-minute goalpost shifting and called it out for its actions, pointing out that allowing this sort of behavior would subvert the intentions of "sunlight" laws and further discourage citizens from requesting public records.

The legislature has mandated that if a custodian denies access to public records, the custodian must, upon request, specify the legal basis for the denial. Permitting Defendant to assert additional reasons for denial after litigation commences, as it attempts here, renders superfluous the statutory requirement of notice of the reasons for denial... It would also discourage citizens from retaining attorneys (or litigating pro se) to challenge the exemptions claimed by a government entity that withholds documents, if, after a lawsuit is filed, the government could cite additional exemptions. This is also contrary to public policy.

The DOC also tried to claim that regulations might permit it an exemption under federal Sunshine Law statutes (rather than Missouri's statutes) but the judge quickly dismantled this argument as well, pointing out that the quoted federal statute had been repealed and is no longer "a valid authority on which the DOC can rely to close the requested records."

All in all, a pretty satisfying takedown of disingenuous acts by a government entity. According to Courthouse News, the DOC is also paying all of the ACLU's legal fees.

The average citizen does not have the resources to challenge Sunshine Law denials, and it was unfair to allow the government to pile on exemptions after a lawsuit is filed," Tony Rothert, Legal Director of the ACLU of Missouri, said in a statement. "The judge's ruling helps level the playing field for the vast majority of citizens who do not have the resources to hit a moving target.

The government spends a lot of time and money keeping records out of the public's hands, doing as little as it can to stay within the letter of the law and avoiding the spirit of the law entirely whenever possible. Unfortunately, successful Freedom of Information requests are more and more frequently being routed through various courthouses before responsive documents are obtained.

Filed Under: department of corrections, foia, missouri