The Volokh Conspiracy

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School Board Seeks to Prevent Web Posting of Materials It Released to Fulfill FOI Request

The Fairfax County School Board took legal action to cover up its own mistake.


The Goldwater Institute's Tim Sandefur reports on one of his organization's new cases:

When Debra Tisler and Callie Oettinger of Fairfax County, Virginia, suspected their local school district was wasting taxpayer money on excessive legal fees, they did what responsible and engaged citizens do in a democracy: They asked to see the receipts. They have that legal right under the state's Freedom of Information Act (FOIA)—and the school board turned over 1,000 pages worth of information. Then it realized that something in there was embarrassing—and that's when things got ugly.

The school board demanded that Callie remove the documents from the website where she'd published some of them—after having redacted any confidential information. That's right: Callie blacked out any personal info before posting the documents, because the school board failed to do so. She had no legal obligation to do that—the U.S. Supreme Court has made clear that you have a constitutional right to publish lawfully obtained information about the government—but she still chose to take that precaution.

But that wasn't enough for school bureaucrats. They filed a lawsuit against Callie and Debra, asking a state court to force Callie to take the documents off her website, and to order Debra to "return" them. (That last part is bizarre, since these aren't physical documents—just computer files—so it's not clear how you "return" them.) But in any event, the point was clear: School board officials were demanding censorship. The natural question to ask is: Why? What does the Fairfax County School Board not want the public to know?

On Thursday, the Board told reporters that Callie and Debra publicized "private information about other people's kids." That is a lie. Callie and Debra never published private information about kids or school employees. And it is an intentional lie, too. How do we know? Because the Board did not make that claim in the complaint it filed with the court. Instead, it only told the court that Callie and Debra have documents the Board doesn't want them to have. The Board knows it would get in a lot of trouble if it told the judge that Callie and Debra published any private information, since that isn't true. In other words, the Board is willing to lie to the press—but not to the court.

A state court apparently granted the school board's request and ordered the documents taken down. Tisler and Oettinger have complied with this order, pending a hearing later this month.  Oettinger's account of the school board's legal action is here.

As Sandefur explains, there is no basis for the court's order, as the First Amendment protects the distribution of lawfully obtained government documents. I would also note that it's exceedingly difficult to make documents disappear once they have been posted on the web.

Via the wayback machine, I found two additional posts on the documents that appear to have been taken down, perhaps in response to the court order.

The demand to take down the documents is not only unlawful. It also appears to have been ineffective. Perhaps the issue is not merely how much the Fairfax schools are paying their lawyers, but also whether they are getting their money's worth.