Court Tells City: No, You Cannot Sue Someone For Making A FOIA Request

from the when-the-government-becomes-the-vexatious-litigant dept

Wed, Jul 1st 2015 7:10am — Tim Cushing

Open records requests and lawsuits go hand-in-hand. Agencies obfuscate, stall, perform deliberately inadequate searches and fail to respond in a timely manner. These actions frequently result in lawsuits, which are notably almost always filed by the requester.

The Hamilton Township of New Jersey isn't like other government agencies. It's far more proactive.

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.

As Jonathan Peters at the Columbia Journalism Review points out, this isn't the first time this has happened, but it is incredibly rare and it almost always ends badly for the agency instigating the legal action. This case is no different, although it did manage to survive long enough for Scheeler to narrow his request in hopes of having the lawsuit dropped. The township was very persistent, unfortunately. But unfortunately for the township, the presiding judge recognized how truly effed-up it would be to allow this suit to continue or otherwise encourage government agencies to sue open records requesters.

Scheeler asserts that the Township has no authority to seek relief from the records request in court; that only the requestor has such a right. Consequently, before reaching the merits of the request, the threshold issue that the court addresses in this opinion is whether a government agency, such as the plaintiff, may file a lawsuit against a person requesting public records, or whether the right to institute a lawsuit determining the validity of the request belongs solely to the requestor. The court concludes that the right to bring the issue to court belongs exclusively to the requestor, not the government agency.

New Jersey's open records law -- like those everywhere in the US -- provides for the filing of legal complaints against unresponsive government agencies. What the law doesn't provide for is the township's actions. In lieu of a response, it sought an injunction barring not only this request, but any future requests for similar information by Scheeler. As the court points out, this is about as far-removed from the intention of open records laws as anyone can get.

To allow a government agency to file a lawsuit against someone who has submitted a request for government records would undoubtedly have a chilling effect on those who desire to submit such a request, undercutting the public policy previously described.

A government agency's lawsuit against document 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 policy underlying both OPRA and the common law to provide citizens with a means of access to public information to keep government activities open and hold the government accountable.

Now, not only has the temporary restraining order against Scheeler been lifted, but the township will be paying his legal fees as well. The court notes that not doing so would basically allow government agencies to trap citizens in "quixotic battles" against entities with "almost inexhaustible resources." Because Scheeler was "trapped" by a lawsuit he didn't initiate and one that pertained to the government's obligation to turn over requested documents, the presiding judge reads the fee-shifting provision of the state's open records law as applicable to legal fees. To do otherwise, the court points out, would be reward the township for violating open records laws.

Atlantic County 2015 6 24 Order and Opinion Hamilton Twp v Scheeler Et Al (PDF)Atlantic County 2015 6 24 Order and Opinion Hamilton Twp v Scheeler Et Al (Text)

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Filed Under: foia, hamilton township, harry scheeler, lawsuit, open government, open records, opra

12 Comments

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Ninja (profile), 1 Jul 2015 @ 7:21am

That's a very good ruling. Not only it slapped the Govt over its illegal practices but also protected the citizen by awarding all the costs to the Government. Sure it doesn't matter as the Govt has virtually unlimited resources for such cases however it is important in preventing future abuses and encouraging attorneys to get such cases on behalf of the weakest party with charges and fees awarded after the case closes (effectively for free). It's a great victory for the people.
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Anonymous Coward, 1 Jul 2015 @ 7:25am

I have a feeling that this Scheeler guy is a regular around town hall. Glad the court didn't let the town get away with abusing the courts, though.
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Anonymous Coward, 1 Jul 2015 @ 8:37am

It makes me a little angry...
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Anonymous Coward, 1 Jul 2015 @ 8:47am

It makes me a little angry...
that this kind of language is actually needed to refute these morons. Yes sometimes a lengthy exploration and explanation of the law is needed, but in this case they should be treated like a 10 year old who asks his mother if he can take her car our for a ride around town:
Answer: "HELL NO!"
And in the response to why not: "Take a guess genius"

Sorry about double post. My little finger is a little to eager with that enter button.
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Anonymous Coward, 1 Jul 2015 @ 10:06am

Victory yes and no
It was a victory for the people, most of them. But some of them, the townships people who will have to bear the cost of this litigation. It's unlikely that they wanted this done on their behalf.
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Anonymous Coward, 1 Jul 2015 @ 10:59am

are all these wannabe dictators emigrating from north korea or something?
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Anonymous Coward, 1 Jul 2015 @ 12:21pm

Did he get it?
I wonder, did he ever get his surveillance footage?
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JoeCool (profile), 1 Jul 2015 @ 1:16pm

Re: Did he get it?
Of course not! He'll have to sue THEM to get it... after they tell him it'll cost $100K for the responsive docs/videos. :)
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Bergman (profile), 1 Jul 2015 @ 5:56pm

Re: It makes me a little angry...
As long as public records laws specify civil lawsuits against the government agency as a whole as a remedy for a violation of the law, this will continue.

If the personal savings or pension of the person unlawfully refusing to comply with the law could be targeted by the lawsuit, you can bet that people would be a lot less willing to break the law.

Likewise, if there were criminal penalties for violating an open records law, we might see fewer government officials violating it.
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Bergman (profile), 1 Jul 2015 @ 5:57pm

Re: Victory yes and no
Supposedly, that's when they vote against the bad officials at the next election.

In practice, most of the officials who violate open records laws aren't elected and people tend to vote their party right or wrong, rather than vote for the best candidate.
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tom, 2 Jul 2015 @ 11:57am

...Which is a great example of how important it is to vote out all existing politicians and to vote IN Libertarians.
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Anonymous Coward, 22 Jul 2015 @ 4:39pm

Re:
Sure it doesn't matter as the Govt has virtually unlimited resources for such cases...

Where do those resources come from?
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