Oregon resident Kim Sordyl had a hunch. The outspoken education activist thought Portland Public Schools might be using lengthy and expensive paid leaves to avoid firing problem employees. So she filed a public records request, looking for data to back up her suspicion.
Instead of forking over the info—even after the county district attorney declared it part of the public record—the district sued Sordyl, along with a reporter who'd requested similar information, asking a judge to review the case in April.
Being named in a lawsuit for filing a public records request was "just more of the same" from a school system that "goes to great lengths to protect themselves and administrators at the expense of students, staff, and taxpayers," Sordyl says. But transparency advocates argue cases like hers are part of a disturbing trend in recent years of local governments filing suits against citizens to keep their doings secret.
In September, the Associated Press detailed several such cases. In one, an education watchdog in Louisiana was sued for seeking records about student performance. In another, college journalists in Kentucky requesting records about sexual misconduct investigations of university employees found themselves named in a suit.
These so-called "reverse FOIA" lawsuits have historically been filed at the federal level, usually by companies seeking to protect trade secrets. Third parties have also intervened in local cases, as when the Chicago police union sued the city to block the release to the Chicago Tribune of decades' worth of misconduct complaints. But experts say local governments have started adopting the tactic as well, asking judges to "clarify" public record law rather than simply deny requests under existing exemptions.
Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press, says the greatest danger posed by such actions is their chilling effect. "If you know as a citizen that if you just ask your government about what it's doing, they'll turn and sue you, there's lots of people who would reasonably not want to get involved with that," he says. "They don't have the time or resources to get in a protracted legal battle just because they want local property records or emails from their town council member."
Unlike typical government stonewalling tactics, which put the onus on requesters to sue for records, these lawsuits instead make the information seekers bear the costs and time of going to trial to defend their right to know what their government is doing. This is an overt use of courts to drag more of the public business back into the shadows and enforce a type of sub rosa censorship.
Sordyl has the advantage of living in Oregon, where she can recoup her attorneys fees if she's successful. But not all states have such provisions, meaning citizens will shoulder the costs of their defense while taxpayers shoulder the cost of the government's case. "The public is essentially paying the government to sue themselves," Marshall says.
Although public records law is a dry subject, it lies at the heart of many of America's recent scandals, from the Flint water crisis to Chris Christie's "bridgegate" controversy to the email flap that sunk Hillary Clinton's presidential campaign. In fact, the question of what citizens have a right to know can determine whether a story becomes a scandal at all. By suing to block disclosure, government officials are attempting to stop us from learning what they're up to and, by extension, to keep us from criticizing it.
In the words of the late Harold Cross, legal counsel to the American Society of Newspaper Editors and author of a groundbreaking 1953 study on government secrecy that led to the creation of the Freedom of Information Act, "The right to speak and the right to print, without the right to know, are pretty empty."
The case against Sordyl is ongoing. In the meantime, another public records request has revealed that the Portland public school system spent $11,000 just to file its lawsuit against her.
"I'm a lawyer, so it's not intimidating to me," Sordyl says, "but for the average citizen or a low-income citizen or a citizen without the resources, they're just going to give up. They're not going to go out and hire a lawyer just to get a couple pages of public records."