Editorial: A new assault on the freedom of information

Published on Monday, 25 September 2017 13:26 - Written by

There’s a disturbing new trend in the ongoing struggle to make public information public. Some governmental entities are suing reporters and regular citizens who have the nerve to ask for such information.

“An Oregon parent wanted details about school employees getting paid to stay home,” the Associated Press reported last week. “A retired educator sought data about student performance in Louisiana. And college journalists in Kentucky requested documents about the investigations of employees accused of sexual misconduct. Instead, they got something else: sued by the agencies they had asked for public records.”

Some entities are cooperative, of course. Many officials know they work for the public, and that all their business is the public’s business. But not all.

“Government bodies are increasingly turning the tables on citizens who seek public records that might be embarrassing or legally sensitive,” AP reported. “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.”

AP quoted University of Kansas journalism Professor Jonathan Peters: “This practice essentially says to a records requester, ‘File a request at your peril.’ These lawsuits are an absurd practice and noxious to open government.”

In many places, citizens and journalists can sue an agency to have a judge determine whether records are public or not. It’s easier in Texas, though – with a few exceptions, records are assumed to be public. If a government agency wants to deny a Freedom of Information Act request, it must notify the requestor and appeal it to the Texas Attorney General’s Office.

In other places, however, it’s harder. The requestor has to sue, though they can recover legal costs if they win.

“Suing the requesters flips the script,” AP explained. “Even if agencies are ultimately required to make the records public, they typically will not have to pay the other side’s legal bills. ‘You can lose even when you win,’ said Mike Deshotels, an education watchdog who was sued by the Louisiana Department of Education after filing requests for school district enrollment data last year. ‘I’m stuck with my legal fees just for defending my right to try to get these records.’”

AP wrote about another situation, even more disturbing.

“In April, the Portland, Oregon, school district filed a lawsuit against parent Kim Sordyl, who is seeking records about employees on leave for alleged misconduct after the disclosure that one psychologist had been off for three years,” AP wrote.

This trend must be addressed by lawmakers. Anything the government does is our business. Public officials must not be allowed to sue to keep the public’s business private.