An important Twitter thread from Jonathan Peters about the "democratically dangerous" phenomenon of public agencies suing open records requesters for filing requests.
Peters is a press freedom correspondent at Columbia Journalism Review and media law professor at the University of Georgia at Athens School of Law:
"Government actions against public-record requesters date back at least 27 years, but they seem to have been on the rise in the last 10. Consider some other examples:
"In 2017, Michigan State University sued ESPN after the network requested police reports related to a sexual assault investigation, and the University of Kentucky sued its own student newspaper after it requested records related to a faculty member accused of groping students.
"In 2014, City of Billings, MT, sued a newspaper that requested landfill records. The list goes on. I've written about these actions for @CJR (bit.ly/2Egpva9 & bit.ly/2EfNfeE), and @PatrickCFile/@LeahWigren did a 2019 study on them (bit.ly/3rA7RFT).
"Government officials generally claim that these actions are initiated in good faith and that it is prudent for courts to step in immediately if an agency's disclosure obligations are unclear. But suing record requesters is unwise, democratically dangerous, and usually unlawful.
"The actions frustrate the purpose and design of freedom-of-information laws and threaten the political duty of the public and press alike to engage in the open exchange of info and ideas about government affairs. A bit more elaboration. . .
"Our democracy's foundation is the consent of the governed, implemented through popular participation in public affairs. The governed give consent through the electoral process and exercise of the franchise, and they participate in discussions about matters of public concern.
"Actions against requesters often arise out of these discussions — out of information — gathering and expressive activities related to public issues, such as sexual harassment investigations, school enrollments, and candidates for sheriff.
"The right to speak is a corollary of the right to obtain info, and by suing requesters who are trying to learn about their government, the government is discouraging public participation in its activities and the discharge of political duties articulated by no less than the SCOTUS."
In Kentucky, a 2020 published appellate court opinion, and thus legal precedent, declares:
"The ORA does not provide a remedy to any government entity to seek civil damages for the publication of a document, even one exempt under the ORA. To put the matter a different way, the government can use the ORA as a shield; it cannot use it as a sword."
https://cases.justia.com/kentucky/court-of-appeals/2020-2019-ca-000152-…
We still await a ruling from the Kentucky Supreme Court in the UK v Kernel case which was presented to the courts in a different procedural posture than the City of Taylorsville v Trageser case.
But thanks to Rep. Nima Kulkarni (D-Louisville) there is hope for an anti-SLAPP law aimed a discouraging — if not altogether eliminating — lawsuits like City of Taylorsville v Trageser. Sadly, the bill has not moved in several weeks.
