California Supreme Court Rejects Sheriffs' Union's Attempt To Block New Open Records Law

from the take-your-fear-of-accountability-somewhere-else dept

There have been some pretty garbage responses to California's amendment of its open records laws, which rolls back the extreme level of opacity shielding police misconduct records. The City of Inglewood gave its police force a zero-accountability parting gift by granting it permission to destroy hundreds of officer-involved shooting files just prior to the new law taking effect.

Over in San Bernardino County, law enforcement -- or at least their union reps -- responded to the new law by petitioning the state Supreme Court for an injunction. The Sheriff's Employees' Benefit Association wanted the law blocked until it could be determined whether or not the law was retroactive. The union claimed making pre-2019 records available to the public would "violate [its] members' rights."

This ran contrary to the assessment of the actual Sheriff and the county's legal counsel, both of whom felt the law applied to old misconduct files.

“In anticipation of SB 1421 taking effect, the Sheriffs Department has been diligently reviewing the changes to the law and carefully considering how to implement these changes,” Blakemore wrote. “Based on this review, and on the advice of counsel, the Department intends to apply these changes retroactively.”

The union can't be thrilled about the new layer of accountability it will be facing going forward. But it seemed particularly aggrieved the new records law would affect old records it assumed would never be turned over to the public. The law doesn't state it only applies to records going forward, so it's reasonable to assume what was once considered non-public is now publicly-accessible.

The union has already heard back from the state's highest court and it's not getting the answer it wanted.

The California Supreme Court on Wednesday denied a sheriff union’s request to block a new state law that provides public access to past police-misconduct and use-of-force records.

The San Bernardino County sheriff’s deputies’ union sought an emergency intervention from the California Supreme Court to block the new law before the New Year.

This won't stop the legal challenges to the law -- not as long as it's not crystal clear whether retroactivity applies. But this at least allows the law to move forward, ensuring that any records generated past the point of enactment are truly public records. Anything prior to January 2019 is going to be hit-and-miss, as it appears state law enforcement agencies don't have a unified take on the law. This will probably be resolved sooner than later, as requests for these previously-secret records are already flowing in.

Filed Under: california, california supreme court, open records, police, police misconduct, police misconduct records, transparency

Court Orders FCC To Hand Over Data On Bogus Net Neutrality Comments

from the sunlight-makes-the-best-disinfectant dept

You might recall that when the Trump FCC killed net neutrality, the public comment period (the only chance consumers had to actually offer their opinion) was plagued with all manner of identity theft and bogus comments. Oddly, the FCC didn't seem too concerned that dead people were filing comments to the FCC website supporting their extremely unpopular decision, and even actively blocked law enforcement investigations into what happened. It's worth noting that similar campaigns to generate bogus support for unpopular policies have plagued other government agencies in the post-truth era.

Annoyed by the FCC's lack of transparency and its refusal to respond to FOIA requests for additional data, journalist Jason Prechtel sued the FCC in late 2017. This week, a ruling (pdf) by Christopher Cooper of US District Court for the District of Columbia ordered the FCC to hand over at least some of the data. The ruling requires that the FCC hand over email addresses that were used to submit .CSV files, which in turn contained the bulk comments. The order did not, however, grant Prechtel's request for server logs, which could help detail who used specific APIs.

In his ruling, Cooper stated that understanding what went wrong would help prevent fraud in other proceedings moving forward (something, again, the FCC has shown it's really not too concerned about):

"In addition to enabling scrutiny of how the Commission handled dubious comments during the rulemaking, disclosure would illuminate the Commission's forward-looking efforts to prevent fraud in future processes...It is surely in the public interest to further the oversight of agency action to protect the very means by which Americans make their voices heard in regulatory processes."

Yes, go figure.

The FCC argued it couldn't disclose this e-mail data because it would violate consumer privacy, but consumers were told by the FCC when they made these comments that their e-mail addresses would likely be made public, "mitigating any expectation of privacy," the Judge declared. Again, the FCC's disinterest in getting to the bottom of this issue can't be over-stated, the agency ignored nine inquiries over a period of five months by New York State investigators looking for more data on the problem, and (like that DDOS the agency was caught fabricating) refused to seriously respond to journalists' inquiries.

In a blog post, Prechtel stated that he's not sure when he'll actually get access to the data, but was pleased that the court saw the importance for transparency surrounding the FCC's historically-unpopular policy:

"Regardless of how the rest of the case plays out, this is already a huge victory for transparency over an issue that has gone unanswered by the FCC and its current leadership for too long. Of course, it may be a matter of months before we actually get to see the records I won (or may still win), and learn who else was submitting bulk comments to the FCC that we don’t already know about. Even then, the full scope of the records I asked for only goes through early June 2017, and doesn’t encompass several more months of millions of comments the FCC went ahead and let flood into their system in spite of all the high-profile controversy."

A big source of the bogus comments appear to have originated with GQ Roll Call, on behalf of an "anonymous client" (which most assume is either a major broadband provider like AT&T or Comcast, or some other proxy partisan organization they covertly fund). Hopefully the data, whenever it arrives, helps shine a little more light on precisely what it is the FCC pretty clearly doesn't want exposed to the light of day.

Filed Under: ajit pai, comment system, data, fcc, fraud, jason prechtel, open records

Freedom Of Information Lawsuit Results In NYPD Agreeing To Follow FOI Law

from the lol-'law-enforcers' dept

If you need any more proof the NYPD hates transparency, you need look no further than Keegan Stephan's victory in a Freedom of Information Law (FOIL) lawsuit:

If you can't see the tweet, it says:

Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law

This is what we measure success with when it comes to FOIL and the NYPD: a victory is the department AGREEING TO FOLLOW THE LAW.

Stephan has been seeking information on the department's use of a sound cannon for crowd control. The NYPD, of course, had no interest in releasing these records. Central to the settlement is the department agreeing to accept FOI requests by email, something it's supposed to have been doing for more than a decade.

The man, Keegan Stephan, said in the suit that the department failed to justify withholding the records he requested and that a “policy and practice” not to accept or respond to Freedom of Information requests by email violated a 2006 provision of New York State law. Mr. Stephan also argued that by not allowing email requests, the police had increased “the time, effort, and expense involved” in obtaining records.

The department's settlement contains no admission of wrongdoing -- something common to government lawsuit settlements. This means it will accept zero responsibility for a decade-long run of FOI statute violations.

The "new" email request system will aid more New Yorkers in having their requests ignored by the NYPD. The NYPD's future use of email for FOI responses will ensure requesters are informed of denials in a much speedier fashion. The portal the NYPD is setting up on its website will provide instructions for requesters, as well as information on how to challenge denials and non-responses. If nothing else, the NYPD will be forced to follow the letter of the law a bit more closely, but it will take far more than a steady stream of FOI lawsuits for it to approach the law's spirit.

The NYPD has made a opacity a cottage industry. It has been dubbed the least responsive government agency in the US, worse than the CIA, FBI and NSA. It has developed an in-house classification system that allows pretty much anyone to designate almost any document "top secret" for almost any reason, and reached its nadir when it refused to release a copy of its FOIL response guidelines to a FOIL requester.

But this is an ugly victory -- one that should subject the department to a steady stream of ridicule. It takes a lawsuit to make a law enforcement agency follow the law. That's just depressing.

Filed Under: foia, freedom of information, new york, nypd, open records, transparency

Judge Responds To Open Records Request By Having Requester Indicted, Arrested

from the FOIA-TO-JAIL.-FOIA-DIRECTLY-TO-JAIL.-DO-NOT-PASS-GO. dept

We've seen government officials do some pretty questionable things to avoid turning over documents to FOIA requesters. The most common method is just to stick requesters with a bill they can't pay. Stonewalling is popular, too -- so much so that the federal government sends out "Still interested?" notices to people whose requests have been backburnered for years.

More rarely, officials will race requesters to the courthouse, hoping to secure a judgment in their favor stating that they've already fully complied with a FOIA request -- even when they've done nothing but withhold and redact. Stripped of all the legal wrangling, this is basically the government suing individuals for asking for documents, forcing taxpayers to go out-of-pocket if they hope to counter the officials' assertions.

But one thing we haven't seen is a government official securing a grand jury indictment against open records requesters… for making open records requests.

A North Georgia newspaper publisher was indicted on a felony charge and jailed overnight last week – for filing an open-records request.

Fannin Focus publisher Mark Thomason, along with his attorney Russell Stookey, were arrested on Friday and charged with attempted identity fraud and identity fraud. Thomason was also accused of making a false statement in his records request.

The pair had been going after local judge Brenda Weaver and other court staff for some time, tracing back to her predecessor's (former judge Roger Bradley) use of a racial slur in the courtroom. The slur was attached to a defendant's name, and this slur was repeated by the district attorney and court deputies. Thomason acquired a copy of a transcript only to find the repeated use of the slur by court deputies had been removed. He asked for the audio recording of the hearing and was rejected.

This led to an article by Thomason in which he noted the missing slurs and presumably questioned the court stenographer's skills/honesty. The court stenographer sued Thomason for defamation, seeking $1.6 million in damages. The suit was dropped when it became clear Thomason, like many journalists, is judgment-proof -- i.e., there's no way he had anything close to $1.6 million laying around. The case was closed by a judge who determined Thomason had no proof that the transcript was inaccurate.

The court stenographer then filed a motion to recover legal fees, despite the fact that then-Judge Bradley had already cut her a check for $16,000 to reimburse her for her legal costs. That led to the current run of subpoenas and records requests in which Thomason hoped to show a judge that the stenographer had already recovered her legal fees.

Judge Weaver's response to this lawful dig for pertinent records was to work in concert with the district attorney to bring charges against the pair -- claiming ridiculously that "Thomason would use the banking information on those checks for himself."

Weaver's accusations -- pushed past a grand jury by District Attorney Alison Sosebee -- are exactly that: she's accusing Thomason of seeking to take funds from Weaver's bank account. According to Count One of the indictment [PDF], Thomason's subpoena -- which sought front/back copies of checks issued from the account -- was nothing more than a failed attempt at identity fraud.

...with intent to unlawfully appropriate resources of said victim, contrary to the laws of this State…

The next count is just charge stacking: attempt to commit identity fraud. The third, however, seeks to make the filing of a public records request a criminal act.

…[w]hen the accused requested documents pursuant to the Open Records Act… to Robert P. Jones [Chairman of the Pickens County Board of Commissioners] and specifically requested "the actual cleared checks (front/back) that Pickens County had written to Judge Brenda Weaver and Judge Roger Bradley for Pickens County's portion of the quarterly operating account expenses for the judges from the years 2013, 2014, and 2015" and further stated "after reviewing only the checks written on behalf of Fannin County for the 2015 year and finding that, according to several banks, some of these checks appear to have not been deposited but cashed illegally," knowing the same to contain a false and fictitious representation…

In short, Judge Weaver claims the requesters lied on their request... which is apparently against the law... somehow. While the statute does forbid the use of false statements in documents submitted to officials, there's no indication it was meant to cover allegedly inaccurate assertions made in open records requests. On top of that, the quoted request makes it clear the assertion of illegality was made by "several banks," not the requesters themselves.

It could be that Judge Weaver is simply trying to shield courtroom employees from what she apparently views as harassing behavior. But the decision to handle the situation with a grand jury indictment, rather than litigating the open records request itself, definitely gives the situation the appearance of a concerted coverup. The subpoenas may be more legally questionable, but the application of this statute to an open records request looks like someone with a keen interest in keeping requested documents out of the hands of the journalist seeking them.

Filed Under: brenda weaver, foia, identity fraud, mark thomason, open records, press freedom, punishment, russell stookey
Companies: fannin focus

City Council Using Open Records Requests To See What Members Are Saying About Them Behind Their Backs

from the all-hail-the-new-transparency dept

El Paso's (TX) government keeps screwing around with local public records laws… and for some truly unexpected reasons.

First, the normal stuff. A city council member seems to be toying with the idea of limiting public access to records, starting out with those many members the public might agree shouldn't be allowed to do much of anything.

The El Paso City Council stepped back from a hot and slick slope Tuesday afternoon, killing a proposal to deny open records to people with a felony or a single kind of misdemeanor conviction.

Most convicts already have diminished rights, depending on their convictions. Denying open records to ex-cons or those in prison denies them access to justice. It doesn't happen often, but prisoners have been able to have their cases reheard by uncovering prosecutorial misconduct through FOIA requests. And let's not forget that a man imprisoned for tax fraud blew the lid off law enforcement's use of Stingray devices while still behind bars, thanks to incessant FOIA requests.

The step back from the slope was one of pure capitulation: council member Emma Acosta never tabled the motion. Apparently she was well-aware the discriminatory suggestion wouldn't survive a challenge. She instead proposed that telephone numbers of city employees should be redacted and her "no criminals allowed" suggestion was removed from the agenda.

As Watchdog.org points out, this new public records activity follows an outside investigation into the city's withholding of documents requested by the El Paso Times.

An outside investigator found it "problematic" that the city's public information officer determined which documents should have been released to the El Paso Times under an open records request the newspaper filed last year.

The public information officer, Juli Lozano, withheld two documents that other city officials had said were responsive to a Times request for records related to projects that were requested by City Council members, according to a report from Austin attorney Ross Fischer that was made public Wednesday.

But the best action of all occurred late last fall. Acosta, who proposed the questionable ban on convicted criminals requesting public records, managed to pass a measure that forces any public official making public records request to publicly disclose what was requested and how much it cost for the city to fulfill. This only sounds like a step towards greater accountability.

While Acosta insisted her measure was designed to increase transparency, opponents said it was designed to inhibit city officials from doing records checks on one another in a toxic climate of internal politics.

The internal toxicity surfaced last month with council members calling one another liars and making records requests to read the text messages between rival council members.

This was solved in the most self-serving fashion, which, coincidentally, also worked out best for the public.

The council decided, unanimously, to solve the problem by prohibiting the mayor and one another from using all electronic devices, including cell phones, during council meetings.

Now, if only they would agree to stop using them at all to conduct official business. The use of personal devices and accounts to keep records from the public is a government favorite. It doesn't always work, but it does make searching for records more difficult and almost always ensures a lawsuit (or an investigation) will be part of the extremely-protracted request fulfillment.

Filed Under: city council, el paso, open records, texas

Government Lawyers Think Open Records Reform Proposal Hands Over Too Much Power To The People

from the more-darkness-and-denials,-please dept

The state of Massachusetts has some of the worst open records laws in the nation, which have not been updated since the 1970s. The main problem is the statutes provide no deterrence for abusive behavior by government agencies and very little in the way of recourse for public records requesters.

The laws -- as they stand now -- operate on the presumption of secrecy, which is completely antithetical to the purpose and spirit of the statutes. There's really no reason the state's public record laws should contain this much secretive bloat. Here's Allison Manning of Boston.com detailing just one of the many problems with the laws.

Our public records laws are abysmal, especially compared to those elsewhere.

There are 19 pages of exemptions alone in the 60-page guide to Massachusetts public records. How does this supposedly progressive state have such backwards open government laws?

What hasn't been shielded from the public by existing exemptions has been given a fresh coat of opacity by government officials supposedly tasked with ensuring maximum public access.

[A]fter the Globe challenged State Police for withholding the arrest record of one of its troopers, [t]he state’s supervisor of public records, Shawn Williams, ruled in favor of the police, finding that police had “the discretion to withhold records” that were covered under rules meant to protect criminal rap sheets from being misused; such discretion meant that the Globe could not obtain the names of the five Massachusetts police officers charged with drunken driving. A far more rational interpretation of the criminal-records rule would protect information about criminal proceedings, not the arrest records themselves. After all, the criminal-records law was never intended to open up a memory hole to conceal unflattering information about the police.

The state has also withheld records from a 63-year-old murder case, claiming (via the Secretary of State) that the investigation was still ongoing, despite police representatives stating they weren't pursuing any new leads and the lead suspect having expired years ago.

The state's House pushed through a set of open records law reforms late last year. It was a decided improvement (what wouldn't be?), but advocates still expressed concern the legislation didn't go far enough. Like many reform efforts, it started out robust and full-figured but was hacked to death by legislators and agencies who preferred to operate in as much darkness as possible.

“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”

“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.

The Senate has introduced its version of the reform bill, and it's already receiving complaints from government entities which feel it swings the needle too far in the direction of accountability. The Massachusetts Municipal Lawyers Association doesn't like much of the Senate's proposed legislation and has issued a five-page memo to its members detailing its concerns. (h/t Michael Morisy)

For one thing, the MMLA wants government agencies to be given the discretion to ignore filers if they believe someone is requesting records too frequently, or simply requesting too much.

S. 2120 provides no protection to a municipality from the frequent and harassing requestor. Considerable staff time is wasted in responding to overly broad and frequent requests. The municipality should not have to respond to someone abusing the system.

The memo does not detail how agencies would determine what constitutes "abuse" of the system, nor what they would have to offer as proof that they are being "harassed" by an open records requester. It appears the MMLA would prefer to have this left solely to the discretion of responding agencies, giving them one more way to refuse to hand over documents.

The MMLA also doesn't like the fact that the legislation would dial back the amount of money agencies can charge requesters or that it would make requests fulfilled in under a certain amount of hours automatically free. It believes all efforts made should be billed to requesters no matter what.

Considering state agencies are well-known for their extreme reluctance to respond to requests in a timely fashion, it's rather rich to see this government body demand that open records requesters have as little time as possible to pursue litigation over delayed responses or refusals.

There is no time period or statute of limitations within which the requestor must appeal to court. As in the House bill, there should be a 30-calendar day time period, from the date of receipt of the SPR’s order, within which a civil action must be filed, whether by the requester or by the municipality.

Statutes of limitations are generally in the one-year range. The MMLA wants one month. The singular purpose of this demand is to allow the state to dodge as much litigation as possible. Thirty days to engage representation and file a lawsuit is an incredibly tight time frame. Open records requesters had better hope everyone's schedule is clear. The MMLA may look like it's acting in fairness when it applies the same time limit to government agencies, but it doesn't point out the head start they'll have: in-house representation.

Other parts of the MMLA memo veer into sheer vindictiveness, as if open records requesters were a pestilence inflicted on honorable government employees. The Senate's bill -- having just been introduced and still sheltered from the carving knives of transparency opponents -- contains an automatic fee award for open records requesters who prevail in litigation against the government. In the interest of "fairness," the MMLA wants this to be a two-way street.

Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.

The MMLA's take on this conveniently ignores the truth of the matter: the only reason this stipulation exists is because state agencies have proven they cannot be trusted to comply with the law. The longstanding problem with open records laws everywhere in the nation has never been an epidemic of frivolous or overburdensome requests. It has been the ongoing exploration of the outer limits of open records laws by dozens of government agencies who have repeatedly refused to reply to requests in a timely manner. Agencies ignore requests, set up massive "paywalls," abuse exemptions, knowingly perform inadequate searches for records and otherwise do anything they can to avoid transparency.

The MMLA wants fee shifts to affect requesters -- a move that would do nothing to improve the state's horrendous laws or response track record. It's just a form of bullying being sold as fairness. The entity with deeper pockets and control of the records wants to have the right to smack around citizens for daring to ask for the "wrong" information.

Filed Under: accountability, massachusetts, open records, public, public records, reform

Wisconsin Legislators Trying To Carve Hole In Open Records Law With Amendments To State Budget Bill

from the stupid-nosy-public dept

No one ever praised politics as a germ-free environment, but Wisconsin may be taking it to new levels, aiming for Chicago-esque levels of dirty politics. The state appears to have several people in positions of power operating in purely partisan self-interest, leading to governmental abuses.

For years now, Milwaukee County District Attorney John Chisholm has ostensibly been in the process of investigating the embezzlement of $11,000 from the local Order of the Purple Heart. This investigation has taken the form of a "John Doe" investigation, which couples broad daylight raids on people's homes and businesses with draconian gag orders and a pile of sealed documents.

John Doe investigations alter typical criminal procedure in two important ways: First, they remove grand juries from the investigative process, replacing the ordinary citizens of a grand jury with a supervising judge. Second, they can include strict secrecy requirements not just on the prosecution but also on the targets of the investigation. In practice, this means that, while the prosecution cannot make public comments about the investigation, it can take public actions indicating criminal suspicion (such as raiding businesses and homes in full view of the community) while preventing the targets of the raids from defending against or even discussing the prosecution’s claims.

These raids have been ongoing since 2010, but you won't read much reporting on it because those being raided are forbidden to discuss anything that has occurred. It's a wholly autonomous process that can be initiated by one party, which then controls the narrative from that point forward. It's completely at odds with due process, and in this case, appears to be wholly politically-motivated. John Chisholm is a Democrat. His targets have all been Republicans/conservatives.

Not that the conservative side is necessarily any better. Wisconsin Republicans are also in favor of government secrecy. Some "fixes" of the state's open records laws were added to the state's budget bill, carving out a sizable -- and easily abusable -- exception for a variety of government documents. (via Metafilter)

Under the provision, all "deliberative materials" would be exempt from the open records law. That includes all materials prepared in the process of reaching a decision concerning a policy or course of action or in drafting a document or communication.

The exemptions are even more extensive for members of the Legislature and their staff. They would not have to disclose communications between one another, the public or others who work for the Legislature, such as staff in the clerk's and sergeant at arms offices. The protection extends to a wide array of legislative business, including drafting bills, developing public policy, all aspects of legislative proceedings such as committee hearings, and investigations and oversight.

Legislative service agencies would be required to keep all communications, records and information confidential.

It's not just the legislature in line for additional open records exemptions. The amendment could expand this "coverage" to all government agencies, all the way down to school boards. This change was backed by Governor Scott Walker and leading Republicans. Walker has had his own "problems" with open records requests, which have resulted in "recent embarrassing stories." Now that the backlash has begun, even those who voted for it are now claiming it goes too far.

State Rep. Dale Kooyenga (R-Brookfield), who voted for the motion, said he is now concerned about its impact.

"The scope of the provision appears to go beyond what I was briefed on, and further consideration of the matter is warranted and welcome," Kooyenga said. "I'll be listening to feedback."

Because no one reads the stuff they vote for, much less performs any due diligence.

"No comment," [Sen. Tom] Tiffany said when asked if he supported the open records changes shortly before he voted for them.

Similarly, moments before he sat down for debate on the provisions, [Sen. Michael] Schraa demurred on whether he would back them.

"I have to read through it more," he said before casting his yes vote.

Just before voting for the measure, [Sen. Howard] Marklein said he had no idea who sought the change and didn't know if he could support it.

"I don't know yet," he said. "I'll know when I vote."

So, how does a shady remix of the state's open records law end up on the governor's desk if no one seems all that thrilled/knowledgeable about it? Because voting with hearts/minds is way less popular than voting along party lines. The committee voting on the budget amendments included four Democrats and 12 Republicans. All Democrats voted against it. Every Republican voted for it.

Now that the backlash has begun, Governor Walker's office is claiming it will "work with legislators" to fix the amendment. Notably, the office has not indicated Walker will veto the amendment, which would be a much better "fix" than working secretively with amenable legislators to keep as much of the broad expansion intact.

The government -- at all levels -- will trend toward increased opacity if not properly held in check. Legislators, given the opportunity, will introduce legislation that best benefits legislators. On the plus side, thanks to the internet's near-instant access and a variety of non-mainstream news sources, citizens are more informed than ever. This obviously presents a "problem" for government entities who prefer darkness. An amendment appended to a budget bill presented the Wisconsin government with an opportunity to lock the public out of its sausage-making, but the speedy spread of negative coverage has ensured it won't pass unnoticed... or unopposed.

Filed Under: deliberative motions, john chisholm, open records, state budget, wisconsin

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

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

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.

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

NV Legislators Looking To 'Clarify' Open Records Laws By Making Responses More Expensive, Easier To Deny

from the what-has-the-public-ever-done-for-us,-other-than-pay-for-our-EVERYTHING? dept

Open records laws are in place to force governments into public accountability. The word "force" isn't hyperbolic. There's plenty of evidence strongly suggesting most government entities are still very resistant to the idea. Lawsuits, public figures using personal email addresses, excessive fees, abuse of FOIA exemptions… all of these run contrary to the spirit of open records laws. Some run contrary to the letter.

Out in Nevada, legislators are crafting the "worst bill of the 2015 legislature" -- one that targets the state's open records laws specifically in hopes of further separating public officials from accountability.

Meet Senate Bill 28, which has its first hearing this afternoon before the Senate Government Affairs Committee. Brought on behalf of the Nevada League of Cities and Municipalities, SB28 attempts to make the release of public records so expensive that no one bothers asking for them.

Enter the Nevada League of Cities and Municipalities, which has been working for many months on a plan to spare its members from all those annoying records requests. Under Nevada’s public records law, governments can charge a fee if a request requires an “extraordinary use” of personnel or resources. So SB28 defines “extraordinary use” as a threshold that’s absurdly common...

Under the bill, “extraordinary use” of a government’s personnel or technological resources totals more than 30 minutes of work or “requires the governmental entity to produce or copy more than 25 pages of records or, for a request for a record to be delivered electronically, the equivalent amount of electronic data that, if printed using a type size not greater than 12 characters per inch, would produce more than 25 pages of records, to comply with the request.”

The world has shifted to digital, but governments cling to paper -- or "equivalents." This isn't some endearingly old-school trait, handed down by aged reps who have waged legislative wars for decades using nothing more than typewriters, fountain pens and dead trees. There's nothing quaint about it. It's simply a way to escalate fees while pretending to be "burdened" by the public's desire for transparency and accountability.

Agencies could charge 50 cents per page for documents as well as the cost for employees’ time to fill the request. An amendment offered by the Nevada League of Cities and Municipalities (NLCM) would reduce the cost per page to 25 cents for physical documents and charge the cost for any storage media used to fill requests electronically.

Either amount is ridiculous, considering most open records requests will be responded to digitally. (Even PACER's more "reasonable" $0.10/"page" charge for electronically-accessed documents… or search results… or search results that return nothing… is ridiculous. But it's still cheaper than many municipalities' per-page charges.)

Equally ridiculous is the proposal that any request taking "longer than 30 minutes" to fulfill be designated "extraordinary." This would push nearly every request into this category, making them subject to excessive fees or outright refusal. The same goes for the 25-page limit. Government employees are paid to fulfill these requests. It's part of their job, and they have no business claiming that fulfilling open records requests is an imposition and a hardship.

Very occasionally, outside help (usually of the legal counsel variety) will be needed, and government entities have every right to recoup fees paid. But they should err on the side of under-reimbursement, considering taxpayers have already paid for:

a) the generation of the records being sought
b) the wages of the person(s) fulfilling the request, and
c) the fees paid to outside consultants

Only the offset of direct costs can be justified (so as to keep agencies from carving holes in their own budgets). Everything else is prepaid. Per-page fees are nothing more than agencies skimming a bit more cash from the public's collective income.

In defense of this terrible bill, supporters cited "abusive" records requests, including a former government employee's "weekly records request," which is apparently being deployed as some sort of blackmail.

Brian MacAnallen, representing the City of Las Vegas, discussed two extraordinary requests. One required the city to review more than 2,500 emails. It took more than 250 hours to meet and resulted in 14,352 pages of documents being released. The city and the reporter who made the request scheduled a time to review the documents, but the reporter did not show up.

The other required the review of 7,434 emails of which 204 were determined to meet the request requirements. The review required 160 hours of employees’ time. Senior-level employees, including the city attorney, were required to review the documents before release.

A representative of the City of Henderson mentioned that his city was forced to complete weekly requests made by a disgruntled former employee. The former employee told city officials these requests would continue unless the city paid the former employee a sum of money.

In every case but the last, there are existing legal remedies in place. Excessively large requests can be handled either by charging the requester for reasonable expenses or by asking him or her to narrow the scope. This is common practice everywhere, and Nevada is no exception. The only change this bill would make is that it would allow normal requests for small amounts of documents to be refused for passing the 30-minute time limit and make larger requests (for a few hundred pages) prohibitively expensive.

As for the latter -- while tricky to navigate without further damaging open records laws -- the city could certainly gather documentation concerning the employee's stated motive and run it by the judicial branch for possible remedies. The danger, of course, is that any remedies may allow government entities to deny requests based solely on perceived motive. (This, too, has been part of the government's FOIA abuse. The FBI and other agencies have denied documents to certain prolific FOIA requesters solely on the theory that the requesters are seeking to trick agencies into releasing exempt information by sending multiple, overlapping requests for the same subject matter.)

Government agencies -- funded and sustained by tax dollars -- shouldn't be a worse deal for citizens than a trip to the local copy shop. And these agencies certainly shouldn't aspire to Domino's Pizza levels of bureaucratic opacity. "Thirty minutes or it's DENIED!" isn't exactly a slogan that inspires confidence in these agencies' trustworthiness.

Filed Under: expensive, journalism, nevada, open records, transparency

Mississippi Attorney General Jim Hood Demands $2,100 To Reveal The Emails He's Had With The MPAA

from the shake-down dept

As you may know, we've been covering the story of Mississippi Attorney General Jim Hood and his campaign against Google. A few years ago, we noted how bizarre it was that Hood and other state Attorneys General seemed to be blaming Google for all kinds of bad things online. It seemed to show a fundamental lack of understanding about how the internet (and the law!) worked. Of course, things became somewhat more "understandable" when emails leaked in the Sony Hack revealed that the MPAA had an entire "Project Goliath" designed around attacking Google, and the centerpiece of it was funding Jim Hood's investigation into Google, including handling most of the lawyering, writing up Hood's letters to Google and even the "civil investigative demand" (CID -- basically a subpoena) that he could send.

Hood lashed out angrily about all of this, even as the NY Times revealed that the metadata on the letter he sent Google showed that it was really written by top MPAA lawyers. Hood continued to angrily lash out, demonstrating how little he seemed to understand about the internet. He made claims that were simply untrue -- including pretending that Google would take users to Silk Road, the dark market hidden site that could never be found via a Google search. Hood also dared reporters to find any evidence of funding from Hollywood, and it didn't take us long to find direct campaign contributions to his PAC from the MPAA and others.

Given all of this, we filed a Mississippi Public Records request with his office, seeking his email communications with the MPAA, its top lawyers and with the Digital Citizens Alliance, an MPAA front-group that has released highly questionable studies on "piracy" and just so happened to have hired Hood's close friend Mike Moore to lobby Hood in Mississippi. Moore was the Mississippi Attorney General before Hood and helped Hood get into politics.

We've had to go back and forth with Hood's office a few times. First, his office noted that Google had actually filed a similar request, and wanted to know if we were working for Google in making the request. We had no idea Google made such a request and certainly were not working on behalf of Google in making our request -- but Hood's office helpfully forwarded us Google's request, which was actually a hell of a lot more detailed and comprehensive than our own. This actually is helpful in pointing to some other areas of interest to explore.

However, after some more back and forth, Hood's office first said that it would refuse to share the emails between Hood and the MPAA's lawyers as they "constitute attorney-client communications" or "attorney work product" and that finding the rest of the emails would... require an upfront payment of $2,103.10:

In response to your request for e-mails between this office and the Motion Picture Association of America or the Digital Citizens Alliance, we estimate it will take our IT department five hours to conduct searches for e-mails responsive to your request. The hourly figure for the lowest paid employee able and available to do this work is $30.62, for a total of $153.10.

The documents will then have to be reviewed to determine if they fall under the definition of "public records" as defined by Miss. Code Ann. §25-61-3(b), and if they are otherwise exempt from the Public Records Act. At this time, a rough estimate of the amount of time to review the requested records is thirty hours. At $65 per hour, the total, conservative estimate to review your request is $1,950. Pursuant to statute, these total estimated costs of $2,103.10 must be paid in advance. We will revise the estimate as necessary after the search is completed and we have a better idea of how many documents must be reviewed. Of course, if we are able to fulfill your request for less than the estimate, then we will refund the difference to you.

I had one further back and forth with the office, asking why these estimates seemed so high. In this day and age, how could it honestly take five hours to run a search on an email system? More importantly, how could it possibly take 30 hours of high priced time to review each document like that? I may not be a FOIA master like Jason Leopold, but I've never seen a response to a FOIA request like this. Normally, when a journalist is seeking records, it's fairly standard to exempt fees, but it seems clear that Jim Hood's office doesn't want these emails getting out, so it's not going to do that.

It also is already telegraphing the fact that it's likely not going to release any of the emails that actually matter, claiming that they are either "attorney work product" or "investigative reports." While Hood's office says there are "nearly 900 emails" responsive to my request, it expects most of them to be exempt from public records requests. Thus, all we'd end up doing is forking over $2,103.10 that we don't have to Jim Hood's office to use to further its own efforts. I have no interest in further funding Hood attempting to attack fundamentals of free speech and the internet, but this little bit of obstructionism certainly is suggestive of the way Hood's office operates, and its absolute fear of transparency.

It certainly makes you wonder why his office is so afraid to release those emails? The Sony Hack certainly revealed some questionable activities going on between Hood, the MPAA, its lawyers and the Digital Citizens Alliance. If Hood's work with the MPAA and its lawyers and partners were truly above board, and Hood were truly committed to transparency, you'd think his office would be eager to release the emails and clear up any misconception. Unfortunately, they'd rather demand thousands of dollars from a small blog. That says a lot.

Filed Under: jim hood, journalism, mississippi, open records
Companies: google, mpaa