Court Tells Agency That Tried To Charge $1.5 Million For A Records Request It Now Owes The Requestor $12,000 In Fines

from the chug-disinfectant,-Missouri dept

It's too bad it takes a lawsuit to free up supposedly "open" records. A few years ago, transparency group Reclaim the Records asked for some easy-to-compile birth and death data from the Missouri Department of Health and Senior Services and received this ridiculous response.

DHSS told [Brooke] Ganz her request would cost $1.4 million to gather the documents. Ganz hired an attorney, Bernie Rhodes of the Lathrop GPM law firm. Rhodes, of Kansas City, is a Sunshine Law expert. He did some research and figured out obtaining the records would literally take a few keystrokes at a computer. He protested the ridiculous charge — a common tactic in Missouri when public officials don’t want to release public documents. The state backed off and said the search would cost closer to $5,000.

When this drastically-reduced estimate was delivered, Reclaim the Records said it was still too high. So, the state just decided it wasn't going to release the records at all.

The Cole County Court has sided with Reclaim the Records. The state will have to produce the records and for even less than the $5,000 it quoted before deciding it wasn't going to release anything. The decision [PDF] details the government's dishonest dealings during this case, making it clear the DHSS did everything it could to avoid complying with the state's Sunshine Law.

The first couple of communications from the DHSS quoted an hourly rate of $20.85. The next response -- sent after state officials spent a few days "obtaining information about Reclaim the Records" -- suddenly increased the hourly rate to $42.50/hour, raising the entire estimate to nearly $1.5 million.

This estimate was drastically reduced when Reclaim's lawyer pointed out the search could be performed easily, pulling birth/death data from the state's database a year at a time, rather than the state's proposed day-by-day search through 40+ years of data.

The ruling provides more insight on the DHSS's obfuscation -- a coordinated effort by the government to withhold these records permanently.

On July 21, 2016—while Mr. Rhodes and Ms. Loethen were corresponding about search methodologies that would comply with the Sunshine Law—Dr. Wambuguh spoke with Garland Land, the former State Registrar, about Ms. Ganz’s requests.

Later the same day, Mr. Land wrote Dr. Wambuguh and told her that DHSS should deny Ms. Ganz’s requests, and “require them to take you to court,” and to use the delay caused by the lawsuit to get the Legislature to change the law.

The court's opinion includes a screenshot of an email from Garland Land detailing the state's attempt to wait this out to see if it could get the law amended before Reclaim could sue the records out of the state's hands.

I would not honor the request. I would require them to take you to court and then bring in national genealogical and vital records experts to testify why making indexes is not good public policy. By delaying this you might file a regulation or get the Legislature to clarify the intent of the law.

That's what the DHSS did. It went to work trying to have the law changed, rather than simply comply with a (simple) public records request.

As stated in Mr. Ward’s e-mail, DHSS did in fact put forward a request to the Missouri Legislature to remove the provision from Missouri law providing that birth and death listings are available upon request.

Specifically, DHSS lobbied to have the Missouri Legislature remove the provision in Section 193.245 that provides that birth and death listings are available upon request.

The court finds the DHSS is obligated to produce these records. The law clearly states the DHSS "may disclose" the information Reclaim the Records requested. Nothing forbids the production of these records. Not only that, but it will have to do so for even less than the $5,000 it last quoted. The court says the allowable charges are only $2,557.30 -- a total it arrived at after stripping the cruft from the DHSS's quoted hourly rate of pay, decreasing it from $42.50/hour to $20.65/hour. This final total is "three-tenths of one percent of DHSS' original $1.49 million estimate."

The court doesn't care for the government's actions at all.

This secret plan represents an utter disdain for “the public policy of this state that … records … of public governmental bodies be open to the public unless otherwise provided by law.” Mo. Rev. Stat. § 610.011.1. Governmental bodies are not allowed to deny requests and then seek a law closing them; instead, they may only close records that are closed by existing law.

It is also important to consider the chronology of events—specifically, the fact DHSS’ denial came only after Ms. Ganz’s counsel had debunked the original $1.49 million demands for fees, which was clearly intended to be a back-door denial of Ms. Ganz’s requests. And when DHSS refigured its cost estimate using information supplied by Ms. Ganz’s counsel, it arrived at an estimate of approximately $5,000—still significantly higher than the allowable charges, but in a range that Ms. Ganz might consider paying.

Faced with this reality, DHSS had to scramble to find a way to prevent the disclosure. It found that way when Mr. Land provided a literal roadmap to achieve DHSS’ illicit goal: deny the request, make Ms. Ganz sue, and then use the delay caused by the resulting lawsuit to go to the Missouri Legislature and try to get them to change the law to close otherwise open records. It is hard to imagine a more purposeful plot.

For these willful violations of the state's Sunshine Law, DHSS has been hit with $12,000 in fines, payable to Reclaim the Records. It is also now liable for Reclaim's legal fees, which are yet to be determined. Unfortunately, these payments will come out of taxpayers' pockets, which kind of limits the deterrent effect. But it's clear the government never had any intention of following the law. Worse, it tried to have the law changed to align with its desire for opacity -- an amendment that would have produced zero net benefit for residents of the state. It's a pretty bold move to charge constituents for the privilege of having less access to public records. Fortunately, none of this worked out for the DHSS.

Filed Under: bernie rhodes, brooke ganz, foia, missouri, missouri department of health, sunshine, transparency
Companies: reclaim the records

FCC Temporarily Stops Taking Net Neutrality Comments So FCC Can 'Reflect'

from the reflect-away dept

Okay, let's be quite clear here: this is not some crazy new thing that the FCC is doing, but it's important for members of the public to understand what's happening. As lots of people have been commenting (some of which are fake) on the FCC's proposed plan to rollback net neutrality, the FCC will be temporarily be shutting down the ability to comment. This is not in response to the fake comments. Nor is it in response to the site being overwhelmed -- whether by John Oliver or [snort!] random DDoS attacks that no one else can see. Rather it's... to give the FCC a moment of peaceful reflection. No really:

Under the Commission’s long-standing rules that apply to all proceedings, all presentations to Commission “decision-makers” that concern a matter listed on the Agenda are prohibited during what is known as the Sunshine Agenda period. This means that during this brief period of time, members of the public cannot make presentations to FCC employees who are working on the matter, and are likely to be involved in making a decision on it, if the underlying content of the communication concerns the outcome of the proceeding. Thus, for example, during this brief period of time, the Commission’s rules generally prohibit members of the public from submitting comments through the Commission’s website addressing the merits of the Restoring Internet Freedom Notice of Proposed Rulemaking or any other item to be considered at the May 18 meeting. The Commission adopted these rules to provide FCC decision-makers with a period of repose during which they can reflect on the upcoming items.

Apparently, the geniuses at the FCC don't know how to just not read the incoming comments for a few days. Imagine if other businesses put up signs that said "Please, no emails, I need a period of repose to reflect on upcoming business." Most people would think that's crazy. Look, if the FCC wants time alone, it should either just stop looking at the comments for a few days or build a system that holds the comments in transit until the "Sunshine" period is up.

While I'm sure some folks will insist that this is being done to stop the public from commenting, that's not true. It's just a dumb rule that the FCC has that it should dump, in part because of just how clueless and out of touch it makes the FCC look.

Meanwhile, if you do still feel the need to comment, the EFF is doing what the FCC itself should do and has set up its own page at DearFCC.org to hold any comments after midnight tonight (when the Sunshine period goes into effect) until comments open up again. That form is useful, though I generally don't like form mailers that have text that you cannot change, as the EFF's does (it lets you add in additional comments, but has some permanent text). Update: Strike that, I'm wrong. While it does have some pre-filled text, when you click to the next page you can change all of it, and aren't limited to their language at all.

Either way: the important thing is this: if you want to add your comments to the record on net neutrality (AND YOU SHOULD), you should get in a comment today or you'll need to wait a week or so until comments open up again. Meanwhile, since the FCC apparently needs this brief respite to "reflect" on "upcoming items" such as net neutrality, does this mean that we won't be seeing Ajit Pai or his staffers being quoted in the news and on Twitter mocking those who oppose his plans? Or, is that still allowed while they "reflect"?

Filed Under: comments, fcc, net neutrality, sunshine