NTF ISSUE PAPER: ROGUE LOCAL GOVERNMENTS ATTEMPT TO MUZZLE TAXPAYER GROUPS

Edmon43.doc. 9-17.
NEBRASKA TAXPAYERS FOR FREEDOM ISSUE PAPER:
ROGUE LOCAL GOVERNMENTS ATTEMPT TO MUZZLE TAXPAYER GROUPS.

BACKGROUND. Occasionally, our NE Taxpayers for Freedom group makes an open records or open meetings information request of local government subdivisions, like school districts or counties. One example, our request with 7 questions to local taxing authorities regarding their utilization of lobbyists. Usually, these councils or boards comply with our requests, even if they take a bit longer time than legally mandated. If they want to charge us a small amount to make photocopies of records, we oblige. However, a few stubborn entities ignore our initial request, after which we prompt them to comply or simply decide to dismiss our request. NTF believes that private taxpaying citizens have the right to make a public record request that requires local or state governments to show transparency. Unfortunately, recalcitrant public officials are embarking on a legal offensive to prevent inquiring taxpayers from accessing entitled information that may embarrass or expose unethical or illegal conduct. Not content to ignore or deny legitimate taxpayer requests or demand outrageous fees for compliance, some taxing authorities now resort to legal threats and lawsuits against individual citizens and journalists. The motivation is obvious, to secrete public records from public scrutiny and to intimidate citizens from making requests for information to which they are entitled or to retaliate.

LEGAL HARASSMENT. Local governments in Louisiana, Kentucky, Michigan, and Oregon have filed frivolous lawsuits against taxpayers who requested public records. This tactic has successfully kept secret public records and chilled taxpayers pondering freedom of information requests. Instead of complying with open records requests, school districts, cities, and state agencies file lawsuits against taxpayers and journalists who then must pay attorney fees and court costs to defend themselves and gain access to requested records. Sleazy hired gun attorneys attempt to convince judges that their clients do not have to produce records. Officials wish to hide information, delay disclosure, and intimidate taxpayers and other critics. Some entities file suit only to gain time to ditch or destroy records that would reveal misdeeds or misconduct. Governments willingly pay for a lawsuit to keep the public uninformed and may believe they risk only temporary reputation damage. They dare citizens to file requests at their own risk. Such lawsuits are frivolous and counter to open government. Public officials must remember that when they sue to deny access to records, they are using taxpayer dollars to undermine civic trust. A requester can defend himself in court, but even if a judge rules in his favor and orders release of requested records, the ruling may not require the stubborn government subdivision to pay defendant legal fees and costs. A defendant usually cannot recoup legal fees. If a requester chooses to not fight the lawsuit, the non-complying government entity wins, and the public never sees what may prove unethical or illegal conduct. Recalcitrant governments state that only a court can determine best if requested records appear eligible for release. Actually, records requesters themselves can sue the taxing authority if records denied and ask a judge to make a determination.

ONE CASE. “You can lose even when you win,” said Mike Deshotels, an education watchdog sued by the Louisiana Department of Education after filing requests for school district enrollment statistics in 2016. “I’m stuck with my legal fees just for defending my right to try to get these records.” The district argued in court that the data fell under state and federal privacy laws and that the requester should pay the department legal fees and court costs. The judge ruled for the defendant and ordered the release of the data months later. At his cost of $3,000 to fight this lawsuit, Deshotels exposed data showing a widening achievement gap among poor students, contrary to phony school district claims of educational progress.

OREGON EXAMPLE. A school district filed suit against a taxpayer activist and journalist, both of whom requested information about school employees who abused paid leave in their contracts. In the past, similar information had gone to requesters now trying to discover if long and expensive leave time translated to misconduct. Though the local district attorney ruled the records public and advised release, the district filed suit regardless, to appeal his decision and argue that the open records law was hazy and that releasing the information might jeopardize employee personal privacy and due process rights. As in most instances, this taxing subdivision lost its case in court.

NEEDED SOLUTION. The Michigan legislature has a pending bill prohibiting government entities from suing records requesters. This bill in response to a county lawsuit against a local newspaper that sought personnel files of 2 employees running for the sheriff slot on the ballot. The judge ruled that the court lacked jurisdiction, because the county suit was not authorized by law. He summarily dismissed the suit, after which the released documents showed that one candidate had engaged in an extramarital affair while on duty. The candidate and a married woman met during his patrol shift, making him unavailable to take calls and radio dispatches. He also faced discipline for losing 11 grams of cocaine given the dept. by the DEA for dog training purposes. Because of disclosure, this candidate fortunately lost the election. Losing lawsuits cost government entities more taxpayer money, as they must pay their own attorney and probably a percentage of court costs. According to a 2015 Columbia Journalism Review article, courts usually have ruled for citizens and newspapers sued for seeking records. NE state senators must sponsor a bill to mirror the Michigan bill and further request the State Auditor to audit public entities that attempt to muzzle inquiring citizen taxpayers.

ASSISTANCE OFFERED. The Voice of the First Amendment Task Force, a subsidiary of the Radio Television Digital News Association, condemns the efforts of government and other public institutions to use the judicial system to intimidate and harass reporters and other citizens who exercise their lawful rights to obtain public information. For help, email pressfreedom@rtdna.org.

TAKE ACTION NOW. If a government agency believes it proper to withhold a public record, it should deny the request and leave it to the record seeker to decide whether to litigate. A situation that allows a government entity to sue a taxpayer who requests a public government document is the antithesis of our state open records law and common law practice of providing citizens with a means of access to public information to keep government activities open and hold government accountable. Such suit against someone who requests public records is contrary to the principles underlying freedom of information laws. Lobby your state senator now to sponsor a bill in January, 2018, to prohibit lawsuits against NE citizens who work within current open meetings and open records laws to obtain public information. Email netaxpayers@gmail.com for state senator contact information.

 Research, documentation, and analysis for this issue paper done by Nebraska Taxpayers for Freedom. This material copyrighted by Nebraska Taxpayers for Freedom, with express prior permission granted for its use by other groups in the NE Conservative Coalition Network. 9-17 C.