The Connections Between Litigation and Public Records: It’s Complicated

Private citizens, publications, and media companies have a vested interest in public records and want access to records to be simple and seamless. Lawsuits are often the result when the request process is the opposite of simple and seamless. Though the Freedom of Information Act (FOIA) provides the public the right to request access to records from any federal agency, and each state has its own version of this law — challenges arise and litigation risk escalates when agencies become backlogged and have delays in processing requests; internal systems and procedures fail to protect against accidental release of PII or confidential information due to improper redaction; inconsistent or conflicting responses are released due to poor interagency coordination for duplicate requests; or pass-through costs are deemed exhorbitant by requesters. 

Litigation Triggers:

  1. Late or extended delays in responses
  2. Accidental release of confidential or personally identifying information (PII)
  3. Inconsistent or conflicting responses to duplicate requests
  4. Excessive fees or pass-through costs

Let’s take a look at several lawsuit trends in the public records sector and how jurisdictions can avoid litigation altogether.

Inconsistent Transparency Results in Costly Lawsuits

Fulfilling public records requests accurately and in a timely manner falls under a government agency’s umbrella of mandatory responsibilities, and avoiding lawsuits filed for incomplete or slow responses is a growing priority. Each state is governed by its own public records law, but in many cases, district attorneys may use their discretion in determining what information is released, when the public will see it, and how much to charge for processing requests. Inconsistent policies create frustration for the public and can lead to long, expensive court battles.

Public records continue to evolve as a result of legislation (particularly mandates for new record types), and government agencies can find it challenging to keep up with processing requests. Some jurisdictions have begun charging large fees to recoup the costs of fulfilling requests. The ACLU recently sued the Fresno County Sheriff’s Office for noncompliance with processing use-of-force records requested in 2019. Citing California law SB 1421 as its basis, the suit claimed the organization was “improperly charged” thousands of dollars in processing fees. Similarly, the Massachusetts chapter of the ACLU filed suit against the Plymouth County district attorney’s office, claiming the DA’s office had requested $1.2 million to produce the documents.

Compliance is Key, but Excessive Wait Times Breed Lawsuits

The public records request process usually includes review and approval steps; and documentation needs to be provided within a reasonable timeframe in order for agencies to remain compliant. Reviewing and redacting a record – whether a paper document, digital PDF, or BWC footage – eats up an agency’s time and resources and some government agencies point to limited staffing and lack of public records-specified funding as reasons for delayed fulfillment. Additionally, unforeseen events like the COVID-19 pandemic can cause unprecedented delays or even temporary suspension of processing public records when staff lack access to records; agency colleagues needed for review/consultation; or tools needed to process requests (such as outdated technology like on-premise records management systems, CD burners, fax machines, or redaction licenses tied to on-prem terminals). However, once a government agency is deemed non-compliant with a request, litigation often comes into play. 

Since SB 1421 became effective in California in 2019, the public has had access to law enforcement records related to use-of-force and other acts of police misconduct, of which the LA Times made several requests. The publication’s requests for the records’ release from the L.A. County Sheriff’s Office were repeatedly denied for 18 months, at which point the paper filed suit for access.

In a recent case in Florida, a Manatee County Commissioner was sued for ignoring public records requests. Similarly, the ACLU in Arizona filed suit against the Maricopa County Attorney’s Office for failure to comply with its request for sentencing information for more than seven months. In most states, when a public record is requested, the government agency in possession of the record is on the clock. The longer it takes to process the request, the more likely it is that a government entity will end up the target of a lawsuit.

Government Agencies Turn the Tables

When a lawsuit is filed, it is usually a government agency that finds itself in the hot seat. However, a recent trend has seen governments going on the offense and suing those requesting a public record. The tactic is typically an unpopular one with the public and government watchdogs and is seen as a way to intimidate the requesting party and delay producing the record. In some cases, government agencies will sue parties they consider to be “vexatious requesters” to combat frivolous claims. Vexatious requests can steal valuable time resources from agencies; provide little in terms of value to the public at large; and where technology isn’t in place to assist, may be seen as necessary to try to stop individual requesters from hogging all of an agency’s time. 

Suing a requester presents a slippery slope for jurisdictions and can set a precedent that works against the very purpose of FOIA requests. In Louisiana, a reporter filed a public records request and soon found herself the subject of a lawsuit from the state’s attorney general, citing a “constitutional right to privacy and policies within the Attorney General’s office and state Civil Service.” When a Michigan county sued a newspaper for personnel files, the Michigan House passed HB 4077 making it illegal for government agencies to sue public records requesters.

How can Jurisdictions Avoid Litigation?

Keeping litigation out of the picture is a priority for government agencies; and there are some ways they can avoid being subject to public records lawsuits. Though each jurisdiction has different resources and challenges, the following can serve as helpful guidelines for government agencies in avoiding lawsuits.

1

Meet request deadlines.

Though it may seem easier said than done for some government agencies, meeting time deadlines is an important step in avoiding lawsuits. Citizens, media outlets, and other parties requesting public records want transparency promptly. When deadlines are unachievable, communicate the reasons for the delay with the requester. If possible, release documents in installments. Meeting deadlines can help jurisdictions keep unwanted and costly lawsuits at bay.
2

Use technology and create automated processes.

Investing in technology can make it easier to meet deadlines. Public records request management software centralizes activities, streamlines processes, and creates efficiencies.
3

Implement and follow consistent policies.

Following consistent procedures and policies can help build transparency when responding to public records requests. Developing detailed policies to follow helps government agencies expedite their response time; deliver consistent, accurate responses; and lessen the likelihood of a lawsuit.
4

Prioritize collaboration and communication.

Some public records requests require collaboration and clear communication between internal departments. As each step of the request process is completed, communicate with the appropriate parties so everyone is in the loop on the timeline. Inconsistent or delayed responses can result in unwanted litigation.

Evaluating how a government agency responds to a public records request may shed light on steps it can take to avoid lawsuits. Though each jurisdiction may have different resources and processes, there are certainly lessons to be learned from other agencies having experienced litigation as a result of charging excessive materials costs. Take the City of Hayward, California as an example. The agency, lacking the technology needed to efficiently redact video at the time, charged back costs related to video processing and faced a lawsuit demanding that the fees be refunded. 

Adaptable, automated, and customized public records solutions can be pivotal tools in helping to avoid litigation. One such solution has been the introduction of Artificial Intelligence (AI) into the public records world. AI has helped reduce the costs of specialists needed to redact video and audio footage and allows agencies to fulfill video requests 90% faster than alternative methods.

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The Peers in Public Records Newsletter (formerly FOIA News) is a bi-monthly e-newsletter brought to you by GovQA. It is a collection of the latest trends in public record requests and government transparency initiatives, shared stories, live roundtables, informative case studies, and actionable knowledge that will help you calm the chaos and keep your organization compliant. Send your comments to peers@govqa.com.

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