According to a newly published review by The Associated Press and numerous state press associations,* during this year’s legislative sessions lawmakers across the country introduced and debated dozens of bills that would close or limit public access to a wide range of government records and meetings. The sheer number of proposals, many of which did not become law, is worrisome, but one alarming trend is the practice of agencies suing those who seek access to public records.
The lawsuits by the governments name the requesters as defendants. The suits do not seek damage awards, but even if agencies are ultimately required to make the records public, they typically will not have to pay the requesters’ legal bills.
This tactic is similar to — but goes well beyond — one that federal agencies used to deploy — before it was blocked by the 2007 amendments to the federal Freedom of Information Act. The federal FOIA provides for the payment, by the government, of attorneys fees and court costs if the requester “substantially prevailed” in the lawsuit. Prior to the 2007 amendments, “substantially prevailing” required a court order declaring release of the information. Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — the requester/plaintiff is considered to have “substantially prevailed” and may recover fees.
Previously, agencies — when it became clear (or they internally acknowledged) the court was going to rule against them — would release at least some portion of the requested records. This had the effect of mooting the case and leaving requesters stuck for attorney’s fees. This was an effective deterrent to requesters who relied on pro bono representation: the requesters did not prevail in court, hence, no compensation for attorneys’ fees, hence, few attorneys able/willing to take on such cases.
As the AP review notes, freedom-of-information advocates say the tactic has become a new way for governments to hide information, delay disclosure and intimidate critics.
*The state press associations are not identified in the article.