more on ] Ask government for public records, get sued [fs]

[David Farber <dave () farber net>]

------ Forwarded Message
From: Hank Levine <hlevine () lb3law com>
Date: Sun, 27 Mar 2005 14:13:11 -0500
To: <dave () farber net>
Subject: RE: [IP] Ask government for public records, get sued [fs]

If the AP article is correct, this is a tempest in a teapot, a big-time
misunderstanding by civil liberties zealots [among whom I am normally proud
to be counted].
 
What¹s at stake is not a city¹s or state¹s right to sue anyone in the normal
sense of the word ­ dragging them into court where they face the threat of
having to pay damages or a fine, or go to prison, or be ordered to perform
[or not perform] some act.  The suits that are being talked about seek what
are known as Declaratory Rulings, which are ruling from a court that declare
what the law is.  The idea is to let a state or agency get a ruling from a
judge about its obligations before agreeing [or refusing] to turn over
records that someone thinks are public and someone else [presumably the
agency] thinks are not.
 
Suppose the state freedom of information act says that cities or state
agencies need not turn over records that concern matters that are the
subject of ongoing ³law enforcement² investigations. The state gets a
request from the Capitol News for records concerning the environmental
activities of John Brown, who as it happens is the subject of a civil
investigation for polluting a local river.  Was the term ³law enforcement²
intended by the state legislature to cover civil as well as criminal
investigations? If the state can¹t seek a declaratory ruling on the
question, then the only thing it can do is refuse to turn over the records
and await a suit by the Capitol News.  But if it has the right to seek a
declaratory ruling, it can go to court ­ with the Capitol News as a nominal
defendant that is at risk of getting its request turned down, but little
else ­ and find out from a judge whether the law was indeed intended to
shield records of civil as well as criminal investigations.  That¹s arguably
more efficient than waiting around to get sued.
 
There are legitimate issues surrounding the right to seek a Declaratory
Ruling on a request for [potentially] public information, but the notion
that doing so somehow infringes on the right of the person who asked by
intimidating them or dragging them into court isn¹t one of them.
 
 

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