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Home > Publications > Quill > Governments Fight Back


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Saturday, September 1, 2007
Governments Fight Back

Officials push laws to stop 'overzealous' FOI requests

Melinda Dudley

Journalists have been fighting what they view as government and agency abuse of Freedom of Information laws for as long as the laws have been on the books.

Now, in cases where FOI laws have been deemed to be over-used or purposely abused by the public they are intended to benefit, governments are fighting back.

This year, citizen watchdogs in Texas and journalists in Virginia have found themselves the targets of restrictive state laws, local ordinances and civil lawsuits aimed at stopping them from making public records requests.

In two school districts near Austin, Texas, concerned parents have been making heavy use of the state’s Public Information Act to look into school policy and spending priorities. The districts, in attempts to shut down requests they deemed excessive and harassing, helped get legislation passed this year that limits free access to public records.

In Herndon, Va., town officials who viewed public records requests from the media as taxpayer-funded research for lazy journalists passed an ordinance making public records much more expensive to requesters.

Though uncommon, this type of reactive legislation aimed at “vexatious requesters” is not unheard of. In recent years, bills have been introduced in states including Hawaii, California and Missouri. However, passage of such bills is rare.

FOI by the hour

In late June, the Town Council of Herndon, Va., passed a local ordinance charging requesters the hourly rate for town staff who fill them, which is expected to dramatically increase the cost of public records requests.

Local government officials have been open in declaring that the ordinance is designed to prevent future requests.

The ordinance is particularly targeted at the media, who, in the words of Herndon Vice Mayor Dennis Husch, were “playing politics with FOIA” and forcing the locality to do their research on the taxpayers’ dime.

Husch was quick to point out that the new policy, which went into effect Aug. 1, is not indicative of the town’s overall stance toward making public information available.

“The Town of Herndon has been very proactive in making public documents public,” he said. “All of our agendas, all of our special meeting notices, minutes, ordinance information — all of the work. A significant amount of effort goes into getting that information out for anyone who wants to get it.”

However, the ordinance in question, as passed by the Town Council, is not available on the town’s Web site.

The ordinance was created in response to a perceived increase in the number of requests for public records, and the amount of time town staff was spending to comply.

“We had a very divisive election here in 2005,” Husch said. “The candidates that lost, for a variety of reasons, found it difficult to get beyond the fact that the citizens of the community made a different choice. Politics as usual. What that resulted in was an increase in FOIA requests from individuals.

“That was followed by the press deciding that this FOIA thing was a good idea, because it drew into question the veracity of the new Town Council, and (the press) began to make broad sweeping FOIA requests that really resulted in the town staff doing research work for the newspaper folks. That got to be a bit cumbersome, because there were very lengthy kinds of requests.”

When asked what kinds of records the media was requesting, Husch said he could not remember, “other than they were taking a lot of time.”

Where the town leadership expects the media to otherwise acquire public records is unclear.

At the time the ordinance was passed in June, it was reported that Herndon, a town of 22,000 residents, had received 21 public records requests since February 2006, 10 of which were from the media.

Despite the town’s claims to the contrary, 21 requests in two years is not a huge burden on town staff, said Jennifer Perkins, executive director of the Virginia Coalition for Open Government.

Perkins said the language of the ordinance, so long as it is applied properly in practice, meshes with existing state law, but the motivations behind it are problematic and not in the spirit of freedom of information.

“The thing that’s scary here is not the words of the statute,” Perkins said. “I think what’s more disturbing here is all this language from the town officials.”

In terms of application, Perkins expressed concern with the creation of a fee schedule, as well as the clause in the ordinance allowing the town to charge the town attorney’s hourly rate when handling a request that is “legally complex or raises legal questions.”

Attorney fees are particularly complicated in Virginia, Perkins said, because they have not been fully vetted by the court and are only sort of addressed in two “really gray” opinions by the Virginia Freedom of Information Advisory Council, a state agency charged with issuing advisory opinions to clarify the law’s intent and guide agency policies, according to its Web site.

What the advisory council has made clear is that a public agency must have strong reasons for why these fees are necessary and why such a high-level employee as the town attorney is needed to conduct the review, Perkins said.

“If they’re going to try to (use attorney fees) to make this cost prohibitive, that’s a violation,” Perkins said.

As of press time, the fee schedule, which the town manager has been charged with developing, remains to be seen. Perkins said it is key to determining what the true impact of the ordinance will be.

Perkins also noted that such locality-wide rates for public records requests are unusual.

“Usually, rates are set, if at all, agency to agency,” she said.

While Herndon is allowed to charge fees for records requests under the Virginia Freedom of Information Act, they must still be reasonable.

“The bottom line is that fees cannot be more than the actual cost to the government, and the government has to break down its fee if you ask them,” Perkins said. “So if Herndon says it’s charging higher fees, then it also better be ready to justify the amount they come up with.”

Town officials maintain that the effects of the new ordinance will be small and localized.

“In practical terms, what’s going to happen? Nothing,” Husch said. “I’ll forecast that 99 percent of requests from town residents will be handled immediately. The only ones who will have to step back and think about what they’re doing are the press, who want taxpayer money doing their research work.”

Husch was quick to point out that the average resident of Herndon who needs a public record will not be affected, since those requests are “handled as normal daily business,” and that similar requests from the press are addressed the same way.

“If the press wants specific documents, they’ll be treated just like a citizen. ‘Can you wait? I’ll go print you a copy.’ — It’s that kind of attitude,” Husch said.

The ordinance is intended to be narrowly targeted at “broad” or “sweeping” requests from the media, he said.

But members of the media are residents, too, and under state law neither has any more or fewer rights to public information than the other.

“The intent part is really what bothers me the most,” Perkins said. “They’re treating it as if it’s some sort of privilege to let citizens see public records, and that’s not the case.”

Texas dust up

Texas’ House Bill 2564, which went into effect when Gov. Rick Perry signed it June 15, allows government bodies to limit the amount of time they will spend on an individual’s public records request without charging them for employee time.

The measure was intended as a response to parents who unleashed a flurry of public records requests on two school districts in the greater Austin area.

In May, the bill sailed through the state Senate 27-3, and its amended version passed the House unanimously; the governor approved it the next month.

Under House Bill 2564, if an individual request’s time exceeds the agency’s preset limit, which may be as low as 36 hours per fiscal year, the agency may charge the “total cost” of providing records, “including materials, personnel time and overhead expenses” relating to “the cost of locating, compiling and producing the public information,” according to the statute. Agencies may also require payment of the estimated cost before records will be provided.

This type of legislation is a surprisingly strong response for what is a localized problem, said Charles Davis, president of the National Freedom of Information Coalition and former chairman of SPJ’s Freedom of Information Committee.

“It’s kind of like attacking a molehill with a nuclear weapon … it’s not typically the way we legislate,” Davis said.

The actions of a handful of “gadfly types, requesting the holy living hell out of everything” have the potential to derail freedom of information for an entire state, county or municipality, he said.

Many journalists in Texas do not have to fear spiraling public records costs. An amendment to the bill exempted representatives of FCC-licensed radio and broadcast stations, newspapers qualified to publish legal notices and free newspapers of general circulation and interest published at least weekly.

Still, the implications of government-led backlash against records requesters is certainly troubling to media organizations and open government advocates.

“Obviously we’re going to be against these kinds of limits because they’re going to prevent people from getting information they want and need and have a right to,” said Ken Whalen, executive vice president of the Texas Daily Newspaper Association.

It has been speculated that members of the media who are not expressly included in the bill’s limited definition of what constitutes journalism may be subjected to the time limitations and extra fees imposed by HB 2564. This could potentially include print journalists who write for any publication or periodical other than a qualifying newspaper, cable and satellite broadcast stations that are not licensed by the FCC, online journalists, bloggers, wire services and freelancers.

Watchdog organizations would also be expected to pay up under the new rules, though the exact implementation and interpretation of this clause remains to be seen.

Katherine Garner, the executive director of the Freedom of Information Foundation of Texas, said she has not heard of anyone running into difficulties with the new law in the short time since it was enacted.

However, many state agencies may simply not be aware that they can create and enforce such time limits, as HB 2564 went into effect immediately upon signing instead of more common effective dates for state legislation such as Sept. 1 or Jan. 1, Garner said.

State agencies may also be waiting for guidelines to be handed down from the attorney general’s office.

The beginning of HB 2564

The trouble leading up to HB 2564 began in June 2003, when two parents from Eanes Independent School District, Dianna Pharr and Susan Bushart, began filing public records requests because of their concerns about the district’s spending priorities and budget cuts. They published the documents and their findings online.

“It definitely started out as a personal issue for me,” Pharr said. “I began to look at the district’s priorities and then determine whether they were in compliance with things such as the Americans With Disabilities Act. And I found, in my opinion, that they weren’t.”

Pharr had seen “serious irregularities” in Eanes’ spending priorities, which she characterized as “athletic spending with no holds barred.”

Pharr had questions about why the district bought artificial turf for athletic fields and a Jumbotron while complaining of a budget crisis and being unable to meet the needs of its special education students, and why Boy Scouts and Girl Scouts had to pay to use school facilities while private sports teams did not.

“The more I requested, the more I knew I needed to request,” Pharr said.

Pharr was motivated to create her Web site, www.keepeanesinformed.com, to make the public records she had received readily accessible to the public.

Pharr estimates that she makes about 50 records requests per year, and said that much of what she continues to address in Eanes are the same issues she had four years ago.

“There are children in wheelchairs who don’t have a fire exit,” she said. “There are children in wheelchairs who don’t have access to the playground. But the school is considering a covered football field so these athletes wouldn’t be hot when they work out.”

Pharr does not beat around the bush when she talks about the origins of HB 2564.

“This bill was targeted at me,” she said.

“From the very beginning they told me I was harassing them,” even at the beginning when all she wanted were the agenda packets for the school board meetings, Pharr said.

Almost half of the total time the district spent on public records requests in the past year was for Pharr, according to Eanes’ Public Information Act logs.

Pharr maintains that all of her requests fall under the law, and that nothing she has done could be construed as abuse of the Public Information Act.

“I have paid every time they have asked me to pay,” Pharr said. “I’ve never not picked up information I requested — quite the contrary, I begged them for it.”

One month after Pharr launched her Web site, the district released confidential medical information from her son’s records at a board meeting, to the public and to the media.

After attempts to resolve the matter at the district level failed, Pharr took her case to the U.S. Department of Education and won her complaint for noncompliance with the Family Education Records Protection Act against Eanes.

“You’ll pay the price that all whistleblowers pay. There will be damage to yourself, and to your family,” Pharr said. “If they had to make a law to stop the flow of public information in this district, then I must have been darn effective.”

In addition, Pharr has filed a formal complaint with the Travis County attorney regarding the Eanes Independent School District’s failure to release records, after determination by the state attorney general that they were required to do so. She also has a pending complaint from a board meeting in February that allegedly went into an improper closed session in violation of state open meetings laws.

Elsewhere in Texas, the Lake Travis Independent School District filed what is believed to be the first lawsuit of its kind, seeking to stop parents from harassing them with public records requests.

For David Lovelace, his quest for public records began with a dispute over Lake Travis’ policy regarding his son. He and his wife had been receiving information from the school regarding their son’s behavior, for use in adjusting his medication. Then the school suddenly reversed course and said it was against its policy to give out such information.

Lovelace requested to see the policy the district was referring to, and found that though it did prohibit schools from advising on medications, it did allow for behavior reports. The incident piqued his interest, and he began to look at other district policies.

“I started out looking at things close to my son: accessibility, special education. As you start looking at things, other things crack open and you start looking at other areas,” Lovelace said.

Just over one year after David and his wife, Melissa, began requesting records, on Sept. 29, 2006, the Lake Travis Independent School District filed suit in Travis County State District Court against the Lovelaces alleging that the approximately 2,290 public records requests they had filed since June 2005, more than 70 grievances and 11 complaints against district educators with the State Board for Educator Certification constituted a “public nuisance.”

During the same time period, the Lake Travis Independent School District reported that it received only 130 public records requests from other requesters, and four grievances from other sources.

The district, in a press release, characterized the suit as “aimed at stopping the harassment in order to protect district resources.”

The district was also seeking an injunction to prevent the Lovelaces from filing any further public records requests, grievances or complaints, as well as an award of monetary damages for the cost of complying with the requests, and attorney’s fees and litigation costs stemming from the lawsuit.

“It is really unusual for a government to sue a citizen for asking for public information,” said Bill Aleshire, an attorney with the law firm Riggs & Aleshire who is representing the Lovelaces. Aleshire helped draft the original Texas Public Information Act while working as a legislative aide in the 1970s.

The district alleged that fulfilling the Lovelaces’ requests, which numbered as many as 238 in a single day, required more than 120,000 photocopies and cost the district more than $700,000, half of which was attorney costs. Lovelace said he has received only about 18,000 pages of documents.

The number of requests the district reports is misleading, Lovelace said, because he carefully tailors his requests to be specific to make it easier for the district to fill them. For example, instead of submitting a broad request for all documents relating to a subject, he would submit an individual request for each specific document; the time the school district would spend filling the request and the number of copies required would be the same whether he submitted one combined request or a number of smaller ones.

Since the school district board meeting agendas given to attending parents do not include supporting documentation, for each meeting he submits a separate request for the relevant documents for each line on the agenda.

A larger number of smaller requests also helps him avoid photocopying charges, because the first 50 pages of each public records request are free.

In addition, the Lake Travis Independent School District alleged that the Lovelaces repeatedly filed identical requests for records they had already received or been informed that they did not exist; refused to follow submission instructions; failed to pick up records; and ignored requests from the district for more information when their requests were not specific or clear enough.

Eanes Independent School District filed an amicus brief in support of Lake Travis in the lawsuit. According to the Eanes superintendent’s request to the school board for the brief, “the Eanes ISD has experienced similar abuse and misuse of the PIA and, therefore, can share with the court additional information and rationale for granting relief.”

The lawsuit and the injunction sought by Lake Travis were thrown out by county district court, affirming that there is no limit on just how much public information a person can ask for, no matter how irritating and time-consuming a public agency may find it. The district has appealed the court’s decision.

After Lake Travis Independent School District’s attempts at legal action against the Lovelaces stalled, it too began to seek a legislative route. HB 2564 was first introduced by the representative from the Lake Travis area.

Lovelace maintains that not only have all of his requests been legal, but that none of them constitute abuse of the Public Information Act, as the district and legislators have called his actions.

Like Pharr, Lovelace has started a Web site, a www.ltisd.info, where he posts scanned copies of public records from the district received under the Texas Public Information Act, as well as resources for other parents wanting to file public records requests and complaints of their own.

In response to the fee exemption for journalists under HB 2564, Aleshire asked whether Lovelace was doing anything different than what reporters do: requesting public records and publishing his findings. He may lack a professional affiliation to a media outlet, but the intent to share information with the public is the same, he said.

The legislative process

Rep. Kelly Hancock, who sponsored HB 2564, approached the Texas Daily Newspaper Association about creating an exemption for the news media from the restrictions in the bill.

“We told him we didn’t really ask for that kind of special treatment above what the public receives,” Whalen said. But in the end, “it’s one of those situations where you try to make the best of a bad bill.”

Whalen pointed out that, politically, it was difficult to lobby against HB 2564 because it didn’t restrict access to any documents; because of the sheer number of records requests the districts reported; and because of the testimony on behalf of Eanes and Lake Travis Independent School Districts.

Arguments made by the school districts emphasized that responding to public records requests was taking money and staff time away from education.

The bill was conceived late in the legislative season, in March, and seemed to fly in underneath everyone’s radar. Lovelace expressed surprise at the lack of media coverage and attention on the bill in the lead-up to its passage.

Instead of just increasing copying fees like in other proposed bills, the state upped the ante with HB 2564, limiting the time that will be spent on individuals’ public records requests without reimbursing government agencies for the full cost of producing them.

“I think the most disturbing thing about the bill passed at the legislature allowing an agency to charge just for looking for the records, if they’ve exceeded 36 hours for that individual over the course of a year, is that it permits a black-hearted government bureaucrat to be exceedingly inefficient about how they maintain government information in the first place, and exceedingly inefficient about looking for it,” Aleshire said.

He expressed concern that agency abuse will be enabled under the new law, because there are no restrictions on how records must be maintained or produced, leaving much of the decision-making on a request’s time burden up to the agency.

“I think of all the dastardly effects of that bill … (it) attacks citizens who very well could be within their rights to ask for information, even if it takes the agency 30 hours to come up with it,” Aleshire said. “There’s just no standard as to what’s reasonable for an agency as to how long it takes to get the records together.”

Pharr said she was lucky that higher fees for public records will not be a stumbling block for her, but she expressed concern that others may not be so fortunate.

“You won’t have access to the district if you’re an average person,” Pharr said. “The majority of people won’t be able to pay the fees that will be assessed for public information.”

Despite laws and lawsuits aiming at stopping them, Pharr and Lovelace said their public records activities have not been derailed.

Lovelace plans to continue making his regular records requests of monthly expenditures and district legal bills to exercise his citizen oversight of Lake Travis Independent School District, and will continue to post records online.

Pharr has returned to school, seeking a law degree at the University of Texas, Austin, pledging to find new ways to open government and to fight for children’s rights.

“I know I must have a law degree to do anything more than I’ve already done,” she said. “My efforts are no longer just about my child.”

Aleshire said he and others will be watching agencies closely to see who enacts rules under the new law, and what these agency policies will be.

“This bill is not self-enacting. All it does is give the authority for rules to be developed by government bodies. The irony is that only government bodies who have a black-hearted attitude and want to take the opportunity to abuse the PIA are going to take advantage of these rules,” he said.

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