Virginia School Board Sues FOIA Recipients For Receiving FOIA'ed Documents It Handed To Them

from the nice-gov't-work-if-you-can-get-it dept

Yeah, it can suck when you fail to handle FOIA requests properly and give the public more information than you intended to. It sucks for the government. It doesn't suck for the public, which is rarely treated to anything more than the most minimal of transparency.

Unfortunately, government agencies don't always react well when they've screwed things up. Sometimes the blowback is limited to ineffectual shouting or paper waving. Sometimes, however, it's a lawsuit seeking a court order to prevent people from accessing (or sharing) documents they've legally obtained from a government agency.

Cut to Virginia, where it's the latter option being deployed:

A Virginia school board is suing two mothers, arguing that documents "inadvertently and mistakenly" released through a Freedom of Information Act request and shared online included confidential information.

The Goldwater Institute on Thursday filed a motion with a Virginia judge to dismiss a lawsuit filed by the Fairfax County School Board against Debra Tisler, who obtained documents from the board through a Freedom of Information Act request, and Callie Oettinger, who shared the redacted documents on her website.

The lawsuit [PDF] claims the Fairfax County Public School Board never meant to release the information it released, which included personal information about students. Federal law forbids the release of this information to unauthorized parties by government agencies.

But that means nothing in the context of this lawsuit. The School Board can be held liable by others for releasing this information. The recipients of this information did nothing wrong, despite the litigious protestations otherwise. The complaint is mostly a list of what the Board did wrong, including failing to subject the FOIA release to review by its legal counsel before sending a link to the Dropbox file to the records requesters.

To correct this, the Board repeatedly contacted the recipient. And it was continually ignored… up until it sent multiple physical notifications, at which point the recipient of all of these notifications told the School Board to stop harassing her.

Copies of these documents were posted publicly, but sensitive student data was redacted by the recipients. The Board felt this wasn't enough of a capitulation, so it took legal action, which then resulted in the removal of the files from the recipient's website.

The Board claims in its filing that it has a legal right to go back in time and undo its mistakes by forcing the FOIA requesters to basically pretend they never received the unredacted information. The Goldwater Institute has stepped in to represent the records requesters and its opposition motion [PDF] points out just how wrong the Board is about the law and the First Amendment.

Only the most pressing government interest—such as the publication of troop movements during wartime—can justify the imposition of such a restraint. Id. at 726 (Brennan, J., concurring). But no such interest is identified in the board’s Complaint or its motion for an injunction. On the contrary, the sole bases it asserts for blocking Ms. Oettinger and Ms. Tisler from disseminating the information are the fact that the board could have chosen to withhold some of this information under the VFOIA (though it did not do so), and that some of the documents could be covered by attorney-client privilege between the board and its attorneys. Complaint ¶¶ 40, 44. That is constitutionally insufficient and irrelevant.

The Board's demands are unconstitutional and there is no precedent that says otherwise.

They are government records, lawfully obtained, and Ms. Tisler and Ms. Oettinger have a right to disseminate them, as protected by the rule of Smith, New York Times, and Bartnicki. Even if the documents were inadvertently turned over, they have both a constitutional right and a legitimate democratic purpose for publishing them. For the government to demand that the documents be removed from publication—i.e., censored—is contrary to all constitutional precedent.

None of that precendent appears to matter to the court. It has already granted the Board's injunction.

Last week, a state judge issued an order barring the women from sharing the documents pending further order of the court, and Oettinger subsequently took the documents off her website.

Hopefully now that an adversarial party has entered the legal battle, the court will be forced to reconsider its granting of this injunction. The government should not be allowed to use courts like time machines to erase its mistakes. It should have to live with them, especially when the inadvertently-released documents deal with issues of public interest, like public school spending. The Board's arguments are mostly admissions of wrongdoing on its own part for which it should be held accountable. Instead it has asked the court to punish people who've done nothing wrong.

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Filed Under: callie oettinger, debra tisler, fairfax county, foia, school board, transparency, virginia