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JANUARY 2020
SPOTLIGHT STORY

"Drop the spreadsheets and freeze!" How withholding public records can land government employees in the slammer

A couple of recent open-government cases provide a reminder that, yes, it’s possible to actually get arrested and even go to jail for flagrant abuses of the public’s right to know. But is arrest and prosecution the right remedy for slow-walking a request for public records? And if not, what is?

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AROUND THE STATES

Courts confront campus transparency issues, yielding mixed outcomes

State universities can't hide major personnel decisions involving their executives behind a blanket claim of "confidentiality" -- but they may be able to withhold information about how they raise money.
That's the takeaway from a pair of recent rulings in closely watched public-records cases.
In Wyoming, a state trial court sided with media requesters who've been denied access to correspondence among leaders at the University of Wyoming shedding light on the 2017 decision to remove then-President Laurie Nichols. The court rejected the university trustees' claims that records about how the board decided to terminate Nichols' contract should be withheld to protect the "deliberative process," or categorized as confidential "personnel files." 
But in Virginia, the state Supreme Court sided with George Mason University and its private fundraising arm in a dispute over access to records about what conditions donors place on gifts to the GMU Foundation.
In a 7-0 ruling, Virginia's highest court accepted the claim that George Mason University and its privately incorporated fundraising arm are totally separate and independent of each other, and that the GMU Foundation isn't controlled by the university or even obligated to spend its money the way the university wants. The Dec. 12 ruling means that the Foundation isn't considered part of the university for purposes of the state open-records act.  

Also this month:
  • Spurred by the horrific shooting death of an unarmed Overland Park teenager by police, a Kansas lawmaker introduced legislation to assure the public access to prosecutors' investigative files if they decide not to bring charges when officers are investigated for using force.
  • The Idaho Press Club won a significant legal victory over Ada County, which includes Boise, when a trial-court judge issued a scathing opinion castigating county officials for inventing their own blanket exemptions to the open-records law, and concluding that records were "improperly and frivolously withheld."
FLORIDA FOCUS

New year, new proposed FOI exemptions

With Florida's legislature opening Jan. 14, the docket is rapidly filling with bills to take more and more information out of the public record. Notably, one-fourth of the proposed exemptions center on nondisclosure of the home addresses and information of public employees. Exemptions are being sought for (deep breath here) the addresses of state legislators, members of the state Cabinet, ER personnel, judicial assistants, county attorneys, school administrators, and employees of the Commission on Offender Review.
 
This week, Florida First Amendment Foundation president, Pamela Marsh, sent letters to the Senate expressing concern over some of these proposed exemptions. In a letter addressing the exemption of home addresses of state legislators and members of the cabinet, Marsh pointed out that there is little evidence to support the claim that the exemption is necessary to prevent harassment, threats, or intimidation. Marsh points out that the information regarding addresses is often necessary for determining whether elected officials, such as state legislators, reside within the boundaries of their respective districts as required.
 
You can view Florida FAF's letters and more information on these proposed bills here.
 
ACCESS ALL-STAR

"The Quiet Rooms"

 

Federal law allows schools, in exceptional cases, to confine special-ed students with behavioral problems to keep them from harming themselves or others. But whether schools use restraining practices safely is a matter of debate, made worse by the secrecy that surrounds all records pertaining to students. In an illuminating series that has provoked state legislators to call for change, the Chicago Tribune and nonprofit reporting partner ProPublica gathered data from more than 20,000 instances of confinement in schools across the state to show that students are being put in "time-out rooms" (at times, as tiny as 22 square feet) for undocumented reasons, defying federal recordkeeping requirements. 

Read the series here...

LEGAL COMMENTARY

Washington joins the growing consensus: State legislators' records should be publicly accessible


It's often, incorrectly, believed that the legislative branch of state government is wholesale exempt from producing its records for public inspection. In fact, as authors Ryan Mulvey and James Valvo explain in a newly published article for The Journal of Civic Information, that's true in only a minority of states. In many states, the public is clearly entitled to see records kept by the legislature, and in others, the issue is unsettled with room to argue for access. 
Just this past month, Washington moved out of the "unsettled" column when the state Supreme Court ruled that the Public Records Act applies to individual legislators' offices just as it applies to other public agencies. 
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BRECHNER SPOTLIGHT

"Secret police" and private universities: How activists have (and have not) achieved transparency concessions from higher-ed institutions 


The public has a compelling interest in knowing how police use their authority, including the ability to make arrests and use deadly force. But what happens when that policing authority is delegated to a private university, especially in an urban center where the university adjoins densely populated communities of color? The answer, often, is tension and conflict. The remedy, sometimes, is increased transparency and disclosure. But progress has been challenging, since freedom-of-information laws typically apply only to public universities, and only a handful of states extend the law explicitly to privately operated police forces.


In an article for the ABA's Human Rights Magazine, the Brechner Center's Imani J. Jackson and Frank LoMonte describe the "tale of two cities" in Baltimore (where pro-transparency efforts have prevailed) and Chicago (where they've stalled). 

Read the full article here...
 
OPEN OPPORTUNITIES

Become a social media master


Free registration is open for the third annual Technology, Media & Privacy Law conference, Feb. 13 and 14 at UF's Levin School 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...
 
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