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Wednesday, February 2, 2011
FOI Toolbox

Developing a public records paper trail

By Ana-Klara H. Anderson and Susan Tillotson Bunch

Whether you are conducting a statewide audit of a government agency or requesting a single public record, hope for cooperation and transparency but anticipate litigation from day one.

Doing so will put you in the mindset to develop the kind of rock-solid paper trail that ultimately could lead to agency compliance or, if necessary, a successful public record lawsuit.

PUBLIC RECORDS LITIGATION RESOURCES

• Society of Professional Journalists Legal Defense Fund, which provides assistance in funding access cases: spj.org/ldf.asp

• National Freedom of Information Coalition litigation fund, which has about $2 million to help in FOI lawsuits: nfoic.org

• Student Press Law Center legal assistance, which provides free legal advice to journalism students and student media: splc.org/legalassistance

• Reporters Committee for Freedom of the Press legal defense hotline: 1-800-336-4243 or rcfp.org.

For example, in a recent statewide audit of the 24 medical examiner districts in Florida, citizens sued five districts that were or had been charging unlawful flat fees for non-exempt autopsy records. Some were charging as much as $25 for an autopsy report just a few pages long even though state law authorized only a 15-cent-per-page charge.

Facing possible civil damages and the potential for class-action relief, the medical examiner districts settled the lawsuits. Some promised to refund the unlawful fees they had collected from citizens. All adjusted their fee schedule to comply with the state law. Collectively, they paid more than $34,000 in the citizens’ attorney’s fees.

The ultimate agency compliance in these cases was the result of well-documented investigations, beginning with the initial public record request. The following summary outlines the general steps taken in the medical examiner district audit.

1. Make a request to the agency for a particular public record, in writing, even if your state doesn’t require written requests. For a sample public record request, see the “Getting Started” tab on the Joseph L. Brechner Freedom of Information Center’s website at Brechner.org. This sample letter is tailored for Florida and should be revised to fit your state’s requirements and your particular record request.

2. Keep copies of all correspondence you send or receive related to your request, including e-mails and invoices. Take notes of any phone conversations with record custodians, including who you spoke to and when. Memorialize these communications either by keeping contemporaneous notes or forwarding an e-mail to the custodian summarizing the conversation.

3. Make a public record request for the agency’s fee schedule. Compare the fee schedule with the fees allowed by law in order to identify possibly unlawful fee practices. If you find an apparent violation, follow up to determine whether there is an exception to the general rule that permits such fees, as there may be “carve outs” for specific agencies or particular records. If it still appears that the agency is violating the state’s public record law, “sample” recent agency invoices by making a request for relevant records during a distinct period of time.

4. If an agency fails to respond to your initial record request or invoices you for an unlawful fee, follow up with a request for an explanation of the legal authority for the agency’s action or inaction, including the date of your original request and a reasonable deadline for response. Cite the statutory guideline for fees and the amount the agency is authorized to charge.

If efforts to educate the agency fail, consult with a media attorney about the merits of a public record lawsuit. Your paper trail of requests, fee schedules, invoices, follow-up letters and other communication with the agency will be the foundation of the litigation if necessary.

Indeed, keeping detailed records may make it possible to resolve the dispute efficiently and promptly, without incurring the cost of going to trial. If the dispute does result in litigation, your deliberate record development will strengthen your argument for agency compliance.

Ana-Klara H. Anderson, Esq., Ph.D., is an associate and Susan Tillotson Bunch, Esq., is a partner with Thomas & LoCicero PL in Tampa. The firm represented the plaintiffs in the lawsuits against the medical examiner districts for the autopsy records.

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