Abuses revealed of watchdog public-records laws
Then there are the vexatious requesters. Nealey says some requesters in Washington have written bots—small computer programs—to flood government agencies with requests at inhuman speed. But that doesn’t take a computer programmer.
“A disgruntled [resident] will file multiple requests seeking the same information—but day after day after day,” Thompson says. “Or multiple requests seeking a host of different information. Not necessarily because the resident is interested in the information but is interested in requiring the government to respond.”
Toby Nixon, president of the Washington Coalition for Open Government, gets to know the stories of persistent or vexatious requesters through his advocacy work, as well as his work as a council member for the city of Kirkland. He says there are only a handful. But they’re out there, and they seem to be emotionally motivated.
“They’ll just say, ‘Well, I’m a watchdog, and I’m trying to hold the agency accountable to the public,’ ” he says. “Only a few will admit that ... they really are doing it to punish the agency.”
Risa Lieberwitz, general counsel of the American Association of University Professors, says politics can be a motivation. Professors who work on controversial topics, including law professors, have been hit with requests from both sides of the political spectrum.
The most famous of these requests came from the Energy & Environment Legal Institute, a conservative think tank, seeking the correspondence of professors involved in climate change research. Lieberwitz thinks the institute genuinely wants to see the correspondence—but also wants to discourage climate change research.
“These are really very overly broad requests [that] require faculty to spend many, many hours going through materials,” she says. “So that really does inhibit people’s ability to do their work, and it may also have a result of having certain faculty members simply avoid doing certain kinds of research.”
And in Florida, people did it for the money. Florida’s Public Records Act automatically awards attorney fees to requesters who win lawsuits against public agencies. So a few enterprising Floridians started to make public records requests designed to fail, according to Barbara Petersen, president of the First Amendment Foundation in Tallahassee, Florida.
“They’d go to a low-level employee and make a request. They’d make requests of lifeguards,” Petersen says. Then they would “wait a while, file a lawsuit and then go to the agency and say if you pay me $2,500, I’ll dismiss the lawsuit.”
MEETING IN THE MIDDLE
Florida legislators sought to address that problem with a reform bill. But originally the bill made attorney fee awards discretionary rather than mandatory. That would have removed any incentive to grant records requests, says Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.
“If you have something you don’t want the public to see, the attorney fees are the only sting that gives you an incentive to comply with the law,” says LoMonte, an ABA member who is on the Advisory Commission to the Division for Public Education. “Otherwise, the only risk is you might get a judge’s order a few years later.”
So Petersen’s First Amendment Foundation, a regular lobbyist at the Florida legislature, worked with groups of municipalities to revise the bill. As passed, SB 80 makes attorney fee awards mandatory—but only if the requester gives five days’ notice to the agency’s designated records custodian before filing suit. If judges determine that records requests were frivolous, they also can award attorney fees to the government agency. Petersen still doesn’t like it, but she says the original “really had the potential to do some serious damage to our right of access in Florida.”
THE COST OF REQUESTS
It took a similar process to modify the Washington law. Nixon of the Washington Coalition for Open Government says there had been several years of attempts to reform the Public Records Act to deal with the growth in vexatious requests. But in the midst of the legislative session, he says, they had always turned into “just a lot of shouting.”
The legislature created a study group, which took about a year to debate and draft two bills. As passed, HB 1595, sponsored by Nealey, says a request for all or substantially all of an agency’s records is not valid; permits agencies to turn down excessive, automatically generated requests; and allows charges for electronic copies, giving agencies a choice between calculating their own fees or using a suggested schedule of fees.
A companion bill by Democrat Joan McBride of Kirkland addresses the issues of clarifications, request logs and training.
Nixon says that negotiations between open government advocates and municipalities were extensive and sometimes contentious. He strongly opposed the idea of letting municipalities charge for staff time, although according to the Washing-ton auditor’s report, this was 98 percent of the cost of records requests
In this, Nixon says his perspective as a city council member helped him bridge the gap. Ultimately, the study group compromised by charging 1.25 cents for electronic copies, thinking it might discourage persistent large-scale records requests. If, for example, the requester asks for 10,000 files, it would cost $125.
“If it’s 100 bucks or 200 bucks or something, a requester thinks twice about that,” Nixon says. The purpose of the bill, he adds, “was to come up with some way to make these persistent vexatious requesters think at least a little bit about the cost of what they were asking for.”
CorrectionPrint and initial online versions of "Reckless Requests," March 2018, should have stated that the Washington state legislature study group decided to charge 1.25 cents for electronic copies, so a requester who asked for 10,000 files would pay $125.
This article was published in the March 2018 issue of the ABA Journal with the title "Reckless Requests: Public records laws are meant to shine light on the dark side of government, but they may be abused."