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FEBRUARY 2020
SPOTLIGHT STORY

When government bites back: Protecting against "revenge FOIA" lawsuits meant to inflict pain on requesters 

When you file a request for public records, you expect to get ... records. 

You might think you've steeled yourself for the worst -- a total denial -- but the response can be far scarier: A "revenge FOIA" lawsuit by the agency you've asked for documents. These man-bites-dog suits serve no purpose except to punish the requester with unexpected expenses and delays. But in a handful of states, they're recognized as legal.

Florida is one of those states, and state Rep. Ray Rodrigues, R-Fort Myers, is back for the third year in a row trying to outlaw "declaratory judgment" actions in open-records cases. But his House Bill 195 is stalled, pulled from the House floor calendar on Jan. 22, despite winning unanimous approval in three different committees.

Is there any way to stop harassing lawsuits by city and county agencies? Researchers Patrick File and Leah Wigren think there might be: Categorizing them as "Strategic Lawsuits Against Public Participation" (SLAPP) suits. Once a judge finds that a lawsuit is a SLAPP -- an attempt to use the legal system to silence an outspoken citizen -- the case can be tossed out on a fast track. In an article for The Journal of Civic Information ("SLAPP-ing Back: Are Government Lawsuits Against Records Requesters Strategic Lawsuits Against Public Participation?"), File and Wigren explain how requesters can use state anti-SLAPP laws to defend against retaliatory lawsuits.

READ MORE
AROUND THE STATES

New year brings new FOI access in Texas, Ilinois

A newly enacted Texas law, effective Jan. 1, gives the public newfound access to the key details of government contracts with the private sector, including all of the essential financial terms. The statute blunts the impact of a 2015 state Supreme Court ruling that enabled companies to insist on total secrecy of their contractual dealings with the state on the grounds of "trade secrets."

In Illinois, a freed prison inmate fighting to clear his name won access to decades' worth of long-concealed reports about officer misconduct within the Chicago Police Department. Charles Green's attorneys contend that the records can help him prove his murder confession was coerced.

A federal appeals court in Massachusetts will soon decide whether that state's wiretapping law can be used to prosecute people who record conversations of police and other government officials. A federal district judge ruled in 2018 that the First Amendment protects against prosecution even for clandestinely recording the activities of police as they're doing official business, but the state is appealing.
FLORIDA FOCUS

Open-meetings lawsuit accuses school safety commission of dodging student testimony

Student gun-safety activists say a study commission appointed after the February 2018 Parkland school shootings purposefully met in an inaccessible location and cut its meeting short to make sure their testimony couldn't be heard. A lawsuit filed Jan. 15 accuses the Marjory Stoneman Douglas High School Public Safety Commission of violating Florida's Sunshine Law at its October 2019 meeting.

The Sunshine Law requires public bodies to hold meetings in ways that do not "unreasonably restrict public access." The lawsuit alleges that holding a meeting at a remote resort location unreachable by public transportation fell short of what Florida law requires. A ruling in favor of the student groups (which include March For Our Lives Florida, the Florida Student Power Network, and Dream Defenders) would have reverberations beyond one advisory committee. It has become relatively common for government entities to hold "retreat" meetings at locations inaccessible to the general public, making it difficult for people without reliable car transportation to make their voices heard. 

The case, filed by attorneys with the Southern Poverty Law Center, is awaiting action in Leon County Circuit Court. 
ACCESS ALL-STAR

How reporters built a nationwide database of 4.3 million gun crimes, one FOIA at a time

 

The Trace is a nonprofit news site that focuses on issues of gun violence and safety. Its investigative reporters landed their biggest coup in collaboration with BuzzFeed News, concluding after an analysis of millions of public records that most shootings in America go unsolved, including two-thirds of all nonfatal shootings.

Reporter Sarah Ryley got a crash course in extracting data from uncooperative law enforcement agencies after FOIA'ing 56 of them across the country. In this article for The Trace, she shares some of what she learned, including how to make sure you get the supporting documentation to help you make sense out of confusing, jargon-filled databases.

Read the column here...

LEGAL COMMENTARY

Marsy's Law makes Florida crime disappear: A data-mapping company's frustrating quest for reports of crime locations

 
Enacted by Florida voters on the 2018 ballot, "Marsy's Law" was billed as a victim-rights measure -- but some law enforcement agencies are interpreting it as a blanket license to conceal crimes. In a guest commentary for the Brechner Report, Brittany Suzsan of SpotCrime explains how the patchwork of diverging legal interpretations is depriving the public of information about the location of crimes that has been widespread public knowledge for decades. 
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BRECHNER SPOTLIGHT

How campuses turned into "Data Deserts": Brechner's Sara Ganim leads a team investigating the misuse of data-privacy laws


In 1974, Congress passed a federal student-rights law intended to empower parents to inspect and correct their children's school records.

In the decades since, lawyers for colleges and schools have convinced judges that the law -- the Family Educational Rights and Privacy Act ("FERPA") -- is a blanket secrecy code that enables educational institutions to hide anything they find inconvenient or embarrassing to disclose.

As a result, a law intended to protect kids' safety ends up putting them in greater danger.


In an interview with podcaster Michael O'Connell for the Association of Alternative Newsmedia, the Brechner Center's Sara Ganim previews her forthcoming podcast series, "Why Don't We Know?", which will examine secrecy in schools and colleges, and why the public can't find out the answer to obvious questions about campus safety hazards.

Listen to the podcast episode here...
 
MARK YOUR CALENDAR

Trolling and disinformation online: Who's responsible?



Free registration is open for the third annual Technology, Media & Privacy Law conference, Feb. 13 and 14 at UF's Levin College of Law. This year's event, "Law and Ethics of Social Media," will feature talks by attorney Jeff Kosseff, author of the widely acclaimed book, The Twenty-Six Words That Invented the Internet, and other nationally recognized legal experts discussing the novel issues raised when news is disseminated on social media platforms.  

Reserve your spot today...
THIS REALLY HAPPENED
An NBC News reporter got hold of state records casting doubt on whether an emergency-room doctor was really guilty of injuring his one-month-old daughter, for which the doctor is facing criminal charges and the potential permanent loss of custody. When he asked the state for comment about the reliability of its child-abuse investigation, the agency responded with a threat. Overlooking the fact that the U.S. Supreme Court has said the First Amendment protects the right to publish leaked documents, a lawyer for Wisconsin's Department of Children and Families sent reporter Mike Hixenbaugh a "cease and desist" letter (has anyone ever just "desisted" without "ceasing?"), threatening legal action if he publishes information from the state's investigative file. Read Hixenbaugh's entire story -- because the Wisconsin DCF doesn't want you to.
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