Governments Trying to Intimidate FOIA Requesters

Governments Trying to Intimidate FOIA Requesters September 18, 2017

The Associated Press has a story about a new trend in anti-transparency efforts, where local and state governments sue people for filing Freedom of Information Act requests (or similar requests under state laws), making it more costly and intimidating for them.

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Government bodies are increasingly turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.

The lawsuits generally ask judges to rule that the records being sought do not have to be divulged. They name the requesters as defendants but do not seek damage awards. Still, the recent trend has alarmed freedom-of-information advocates, who say it’s becoming a new way for governments to hide information, delay disclosure and intimidate critics.

“This practice essentially says to a records requester, ‘File a request at your peril,’” said University of Kansas journalism professor Jonathan Peters, who wrote about the issue for the Columbia Journalism Review in 2015, before several more cases were filed. “These lawsuits are an absurd practice and noxious to open government.”

Government officials who have employed the tactic insist they are acting in good faith. They say it’s best to have courts determine whether records should be released when legal obligations are unclear — for instance, when the documents may be shielded by an exemption or privacy laws.

But there’s no need for the government file such a suit. If they deny the request, the next step is for the person making the request to file a lawsuit seeking an injunction requiring the information to be turned over. I know this because I was the plaintiff in one such suit a decade ago against the Bush administration after they denied a FOIA request I filed on absurd national security grounds. The case went to trial but, at the last minute, the agency decided to give us the information anyway.

But even that is a bad option. It requires having the money to file such a suit. I was very lucky that a non-profit public interest law firm approached me about taking my case and they paid for it all. Most people don’t have that and can’t afford to hire their own attorneys. We need to be making it easier to get documents from the government, not more difficult. I shouldn’t have to sue my own government to find out what they’re doing in my name and with my tax dollars.

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