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Governments turn tables by suing public records requesters (apnews.com)
251 points by chaostheory on Sept 18, 2017 | hide | past | web | favorite | 73 comments



Many of us love to pat ourselves on the back for all the "free" knowledge and information available thanks to the internet, ignoring that most of what is available is merely entertainment and opinion.

Stories like this are a good reminder that the most valuable information is still being concealed by those with the power. They use their position, money, and authority to protect it at all costs.

We still have a long way to go.


Pretty scary thought; makes me think about the Magna Carta and the idea that you couldn't be pulled into a court and charged for things not explicitly spelled out in some body of law that folks could possibly know in advance. In other words administrative bodies could not produce some novel "law" on the spot and charge you with it.

I long to see the day when laws and other civic documents are compiled and evolved in some source control like git or something domain specific for such documents.


This "git for law" meme is a nearly constant refrain but it is simply not appropriate for legal text. Yes, for de minimus yet important changes, like changing a "shall" to a "may," it makes sense. For anything beyond that, trying to shoehorn legislation into a format and workflow design for software is a fool's errand at best.


I disagree that version control is inappropriate. I worked for a company whose primary product was tracking government legislation through a database built on Subversion. (acted as a DB but used Subversion for a variety of reasons. I know it sounds strange).

It seemed to work fine to record incremental changes, tag specific revisions as being checkpoints for various stages of review and approvals. And anyone could search current and historical versions.

The overall legislation system needs flexibility to deal with complex and changing workflows, but storing documents (with change over time) and the links between them can be encoded just fine. As long as there are flexible ways to string them together, they can be represented in whatever structure makes sense: final law with all current amendments; original law, with amendments as annotations, separate pieces of legislation, linked by the overall law, etc. None of that has to be encoded in a super-strict heirarchy, but as long as it's all being stored in can be presented however one wants.

I don't see the fatal flaw. I see imperfections and compromises, but not the flaw so bad as to say "don't bother".


The key is incremental change I agree; if legislators only interact and record changes in final form with all the mass of changes dumped onto a user for review then such a project would be untenable. Small changes would really improve usefulness, and I daydream sometimes about what sort of dodgy log messages folks would use to obscure intent. Either way it could really empower a lot of analysis I'd imagine.

Do you mind sharing with us the company and the product you developed in this space?


Correct parliamentary procedure should track all motions changes and proposed changes (even those ruled out of order) to motions I certainly do as a member of a CBC / SOC (Conference Business Committee / Standing Orders Committee)


The alternative is that we are unable to track changes in the law. Which to me, makes the law untrustworthy.

Untrustworthy laws are rather more foolish than doing revision tracking on English text. I mean... FFS how hard is it to track changes to English text? Really?


I'd at least like to see the diffs in a more readable format. Many laws are compilations of, "Amend [section of law] to read as follows: [new wording]"


yes that is how its done you normally produce an omnibus showing motions with the amendments next to them plus a list of Consequentials eg if motion 57 passes motion 63 falls.


>trying to shoehorn legislation into a format and workflow design for software is a fool's errand at best.

It's not for software, it's for text. Is the law no longer written in text?


There are already "workflows" designed for parliamentary procedures Citrine's ABC of Chairmanship and Roberts rules are two examples.


The suggestion isn’t to use git or a git-like for procedures, but for tracking the text of laws.


Yes that is how Citrine and Roberts are used today in parliamentary systems I have been doing this for years for formal conferences.

The procedure is similar to they way git is used for code though with a greater or lesser amount of automation - in the old days you had multiple documents and you physically cut and pasted them together to produce the final document


Looks like some fellas in Germany took a stab at it. I'm interesting in seeing how they've carried on since this taping back in 2013, sounded very manual but some pirate party adopted the idea if I understand him correctly https://www.youtube.com/watch?v=-qql1Ess7qM


It's inappropriate if your goal is to obfuscate the law and make cross references to past laws, thus creating demand for more lawyers.


That's true, but there's still a ton of useful information freely available out there that gets ignored. For the vast majority of people the problem isn't lack of access to information that the government is concealing, but rather lack of interest in useful information they can access in seconds.

That's not to say that lack of access isn't a major problem - it is - but even when you solve that, you're going to be left with the much bigger lack of interest problem.


It's akin to what Steve Jobs once said:

“When you’re young, you look at television and think, There’s a conspiracy. The networks have conspired to dumb us down. But when you get a little older, you realize that’s not true. The networks are in business to give people exactly what they want. That’s a far more depressing thought. Conspiracy is optimistic! You can shoot the bastards! We can have a revolution! But the networks are really in business to give people what they want. It’s the truth.”


Steep learning curve. It took me a long time to figure out what was going on, much less figuring how how to ask useful questions.


i don't think the problem is really lack of interest, but form in what is information delivered. if you give me 200 pages text document ful of numbers, nobody will bother to read it, if you make simple infographic based on this document you will see people are interested


In other words, if you do the analysis and the work, and provide the opinion and results for free?


What you said is technically true, but it is literally impossible for someone to be up to date on every piece of information that affects them. Even just limiting the domain to legal terms, the US government doesn't know how many laws it has. How is someone supposed to "do the analysis and work" on all of that, on all of the terms of services for every single product that exists, all the information pertinent to their health, for companies they never even consented to work with ala Facebook and Equifax data tracking, etc?

It's extremely disingenuous to call people lazy for not analyzing all of that when there is not a single person on the planet who has done so


Long way to go until what exactly?


I'm grasping at straws, but it seems relevant to this branch of the thread...

Wasn't there recently an uproar in the U.S. about a [state/municipality/or some such] that gave copyright over to their [regulations/building codes/or some such] to a private entity? Thus, citizens had to pay to know what the law was and couldn't make copies.

This seems right along the lines of what op was talking about.

My memory is too fuzzy to get a good search result so if anyone could help out with the specifics I would appreciate it.


There have been several cases, mostly along building standards, but the state of Georgia famously sued Carl Malamud for infringing on the copyright of state laws when he publishing the full annotated version of their laws online:

http://www.latimes.com/business/hiltzik/la-fi-mh-state-of-ge...

Malamud had worked with Aaron Swartz on opening up Pacer:

https://public.resource.org/crime/

And he was joined by the EFF defending against a suit by the Sheet Metal and Air Conditioning Contractors Association after he published the details of a Federally-mandated safety standard:

https://www.eff.org/press/releases/publicresourceorg-prevail...


So there are a couple different issues here. One is just states claiming copyright on their actual state criminal code or whatever, and selling the rights to republish it to Lexis or WestLaw or whatever as a state revenue source. This is happens, but is not actually that common in the US, and there's pretty broad agreement that it's shitty, and it doesn't happen at the federal level because the US federal government can't own copyrights.

Much trickier is "incorporation by reference," which is when the official law or regulation says "as part of our building codes we're going to adopt the 2012 version of the International Building Code in its entirety, and then amend it as follows..." without actually including the text of the IBC (or the fire code, or whatever), which is a document created by a private entity, and is copyrighted. This happens all the time, across levels of government, and it pretty clearly poses a problem, but it's not really clear whose fault it is or what to do about it. Individual city governments don't have the requisite expertise to concoct an entire set of fire codes for themselves, and it's not clear you'd want them to: we arguably all benefit from having the greatest experts in the country craft the best possible code, and product makers that sell across markets benefit from having a uniform standard. But because professional associations end up taking on this role since no single government will, it's not clear how to pay for the work of researching and writing the code, so they end up self-funding by selling the text itself. It's not clear that either the governments or the organizations are in the wrong, even if the public ends up suffering.


It was Georgia state law, two years ago, essentially saying that while you can have the text of the law, you can't have the annotations that inform the interpretation of the law:

https://arstechnica.com/tech-policy/2017/03/public-records-a...

However, since court decisions about US law are based on prior rulings, the text itself is mostly useless and doesn't actually tell you what the whole law is. It's like an Ikea assembly manual without pictures.


You're referring to the Official Code of Georgia Annotated (OGCA).

https://arstechnica.com/tech-policy/2017/03/public-records-a...

The Official Code of Georgia is available online for free. However, the Official Code of Georgia Annotated is not. The law itself is not copyrighted, merely the annotations. The annotations are produced by private companies (Westlaw and LexisNexis), but are considered essential for legal research purposes. So although they are private written works subject to copyright, they possess something akin to but somewhat less than the power of law.

Most if not all of the major obstacles to full public access to case and statutory law arise from the LexisNexis/Westlaw duopoly over legal research. Courts historically have relied on the companies to collate and publish the reporters containing all the significant judicial opinions, rather than incurring the costs of typesetting and publishing the opinions themselves. They also publish annotated versions of the state and federal statutes and administrative regulations. The annotations make them copyrightable, but also provide added value to legal researchers. Lex/West then turn around and charge enormous sums of money for access to these reporters and annotated codes and to their searchable databases based on those. Many citizens are thus unable to access legal opinions which set common law precedents or statutory interpretations binding as law on those citizens.

Even where the opinions are published online for free by the court, e.g. Supreme Court opinions, lawyers rely heavily on the cross-citation services and topical annotations provided by Lex/West. Raw opinions and statutes just aren't that easy to use for research purposes without a fairly intense indexing system. So even though a lot of law is available for free online, it's hard to make full use of.

A few firms, like FastCase, are trying to produce relatively cheap/free alternatives to the traditional services, but it's extremely difficult to collate and annotate the massive volumes of judicial opinions, administrative decisions, rule makings, and statutes generated at the state and federal levels each year, never mind historically.

On the other hand, it's probably worth mentioning that the more significant a law is, the more likely you will have free access to it. Most inaccessible laws deal with small jurisdictions or narrow issues. Or they require a strong legal education to understand and apply. You may not be able to find an opinion issued by the California Board of Equalization in a 1973 tax dispute about what constitutes constitutionally sufficient notice of a propose adjustment to taxes owed, but the issue is so obscure and technical that access isn't really valuable to the general public anyway. The costs of providing access to that law are more efficiently allocated to the rare individuals who need it than to the general public. Those individuals pay their lawyers who pay West/Lex, who bear the costs of preserving and organizing these legal texts. Or so the argument more or less goes.

Really, this whole debate cuts to the core of the legal profession. Why should people have to pay a premium to ensure they are complying with the law or to resolve a dispute or to defend themselves against charges from the state? Which is really another way of asking, why is the law so complex that an elite caste of specialists is required to administer it?


Until organizations who should act transparently can no longer impede the free-flow of information, because as they have proven time and time again, they cannot be trusted to do so willingly.


Until relevant information is free.


All information is relevant to someone, somewhere, who doesn't already know. We all have secrets.


May I interest you in the Black Iron Prison: http://www.principiadiscordia.com/bip/1.php


Lawyer here, but not your lawyer.

Anti-SLAPP laws are pretty limited, but a peer over in /r/law had a phenomenal idea for addressing this, which I'm copying over here. There's a little something called a

"'Motion to dismiss for failure to exhaust administrative remedies.'

The fun part is that this is normally used by government entities against citizens. I just don't see any obvious reason it couldn't be used by a citizen against a government agency that has filed a lawsuit the entire point of which is to thwart the exhaustion of an administrative process.

After all, citizens aren't allowed to sue for open records until the open records process is completed, one way or the other. Why should a government entity be permitted to sue before then?"


Misleading title. While technically lawsuit names the requesters as defendants, what is implied - that they are under threat of civil or criminal penalties as retaliation for requesting the info - is not what in fact happens. What in fact happens is that the agencies ask the court to keep the records unpublished. Which sucks, but it's not an action against the requesters - it's just an attempt to keep the records from being disclosed, and in no way threatens people personally.

It indeed sucks that you have to go to court, at your own expense, to defend your lawful right to see information that has to be public. But that has been the case for years, nonprofits like EFF or Judicial Watch has been doing this for years, supported by donations. There's nothing new in this.


The article strongly implies that this is a new development. What it talks about is government agencies who start a lawsuit instead of granting or denying a FOIA request.

> State freedom-of-information laws generally allow requesters who believe they are wrongly denied records to file lawsuits seeking to force their release. If they succeed, government agencies can be ordered to pay their legal fees and court costs. Suing the requesters flips the script: Even if agencies are ultimately required to make the records public, they typically will not have to pay the other side’s legal bills.


OK, so that indeed is a new thing - they found a way to deny requests while not getting legal fees shifted on them if they lose eventually. This is indeed tricky and new. I just wish the article made it clearer that this is the reportable bit.


I didn't know they had mechanisms like this to prevent divulging of public information, so this is definitely news to me. I don't think dismissing something you know to be true as "business as usual" helps. There's nothing misleading about the title: they are suing to prevent disclosure. Just because the immediate notion of lawsuit that comes to mind is associated with recuperation of damages doesn't make the title false.


> I didn't know they had mechanisms like this to prevent divulging of public information, so this is definitely news to me

Well, the mechanism is simple - you send FOIA request, they decline it because national security, or some regulation, or policy, or it's too hard, or pick another of 10 thousand excuses they can find. Or they send you the documents with all text blacked out (that happened too). Next step, you have to sue, because while they can play any games they want with a regular citizen, with complete impunity, playing the same with a judge would be much more risky and only very well-connected people like top federal officials can get away with it. The rest would probably choose to comply.

> I don't think dismissing something you know to be true as "business as usual" helps.

I'm not dismissing it. I'm saying the title implied agencies retaliate against requestors by suing them, it is misleading - they are doing the same thing as before, clamming up and refusing to provide records. It is still important, but the title is misleading since it gives wrong impression about what's going on.

> There's nothing misleading about the title: they are suing to prevent disclosure.

But the title doesn't say that, and if somebody tells you somebody sued you, that's not the first thing you think of.


you should not have to pay the court costs to fight a system denying you access to public records. the agencies should be required by law to issue an exacting statement as to why the request is denied and reference a law based reason for that denial. As in, there should be an easily addressable list of reasons to deny a specific records request.

going to court is outright intimidation


> you should not have to pay the court costs to fight a system denying you access to public records

True, but that's what it always took if the agency you are asking is stonewalling (and they regularly do). As explained above, the new bit turns out they found a way to do it cheaper, so that they can avoid legal costs shifted to them (probably can be fixed by a law, but didn't happen yet).


There is plenty of precedence for this in the United States and elsewhere. There are even laws against it in a number of states and countries but it is very difficult to write legislation for and enforce.

This category of abuse of our legal system is called "Strategic lawsuit against public participation" or SLAPP.

More information can be found on the Wikipedia page:

https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...

I'm surprised this wasn't mentioned in the article. I am not a lawyer, but it would seem that these types of suits would fall squarely in the SLAPP definition.


"Secrecy breeds incompetence because where there is failure, failure is kept secret" - Julian Assange


Said to apply also to how Assange runs his own operations internally, according to a variety of accounts.

Ironically enough.


We need a Wikileaks for Wikileaks.


metaleaks?


> The lawsuits generally ask judges to rule that the records being sought do not have to be divulged. They name the requesters as defendants but do not seek damage awards.

Weird. Don't you at least have to allege that the defendants did something wrong to start a lawsuit? Even if the requested documents don't have to be released, the requesters didn't do anything wrong. I feel like these lawsuits should be dismissed.


IANAL.

The legal term for that the government is seeking is "declaratory judgement"[0].

"A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal)."

Here the government is asking the court to declare that the subject matter is off limits, and not available to be released, as a matter of law.

Declaratory judgments are probably best known here on HN with regards to patent litigation. If a company receives a 'cease and desist', alleging the non-licensed use of a patent, that company might file for a declaratory judgement that their product does not actual infringe on the patent.

[0] - https://en.wikipedia.org/wiki/Declaratory_judgment


No lawyer hear by a long shot, and couldn't actually find the real court records casually but I think the idea is that the suit is likely some sort of 'cease the initial request' on grounds that the initial request was invalid/conflicts with something else, which then forces the judge to decide the validity of the request under whatever public records law or not..

Still screwy, IMHO, since as I understand it there is a means for the gov't to deny the request, there is usually some appeals process, whatever.. as article states this seems like a way to buck that process and shunt it to another process which has negative consequences for the requestor in the form of legal fees..


I think as the defendant you're entitled to a public defender, are you not? If all FOIA requestors simply used the public defender available to them it might cost the government enough money to cause them to either ax the FOIA program (political implications) or simply comply with requests.


You are entitled to a lawyer in a criminal case not a civil case, I think. This is not a criminal case. So you can't afford a lawyer you have to represent yourself.

And surprisingly unless it is the exact same branch and department of government forcing it to spend money doesn't teach it a lesson, it just cuts education or start asking for more taxes.


In principal the idea would be nice, but all government expenditures are ultimately funded by taxpayers, so there's little reason for them to care how much it costs.


It is weird. Here is a very relevant case that happened back in 2015 in NJ with a different conclusion: https://www.techdirt.com/articles/20150630/16393431506/court...

> The court concludes that the right to bring the issue to court belongs exclusively to the requestor, not the government agency.


It is not weird. As other comments here point out, it's a pretty normal thing called a declaratory judgment.


Probably using the same law to weed out "troublemakers" that ask for a bazillion records simply because they can. A nation of laws and all :) The judges will sort it out and no one can (really) complain.


Yeah I’ve seen this first hand when I was a government contractor. A guy would come into the public information office once a week and request all the data for a thing be printed for him. From 1973-present, every week. It was reams and reams of paper and he could have just asked for the historical data once and the previous week’s data each week if he was really interested in anything besides being wasteful. Afaik it was within his right to ask for it and the office had to comply.


Doesn’t the FOIA allow the government to charge a “reasonable” amount for labor?


I’m not really well versed in the legal side. This also was a regular, well used public info resource, not a singular FOIA request. It just happened to be abused by an individual.


Yes, which at the very least could be the actual cost of the paper and the cost of the person's time fulfilling the request.


I've always been charged for material expenses. YMMV.


The laws that permit these records requests also permit reasonable fees for fulfilling the requests, which pretty easily sorts that issue out.


I think there are two cases that are brought up in this article. The first is that some agencies file suit to stop or delay giving out the records that will make them look bad. The second is that the agency has a legitimate concern that if they disclose the info, then they will violate privacy rights and get in big trouble.

Does anyone have suggestions on how to keep the first case from happening while making sure privacy rights are respected?


> State freedom-of-information laws generally allow requesters who believe they are wrongly denied records to file lawsuits seeking to force their release. If they succeed, government agencies can be ordered to pay their legal fees and court costs. Suing the requesters flips the script: Even if agencies are ultimately required to make the records public, they typically will not have to pay the other side's legal bills.

IANAL, but this seems to me to be a perversion of the intent of the laws. I would assume there are pretty clear statutes that indicate when one party can be forced to pay the legal fees of the other (and that those statutes vary from state to state), but aside from the labels of "Plaintiff" and "Defendant", the roles of "Government" and "Citizen requesting records" seem more natural, and should be what's relevant to the outcome of a contested FOIA request.



Anti-SLAPP is great, but the kind of lawsuit described in the article has nothing to do with it, since the suits do not attack the speech rights but seek to prevent disclosure. That's a completely different (and sort of opposite, since they don't seek to prevent speech but to prevent them from being compelled to speak - or, disclose documents) thing.


Perhaps the solution is for the new policy to be that these datasets be kept online (e.g. gcloud) with public, anonymous read-only users.

Then the entire problem is solved.

This is already done with a number of data-sets and should be the gold-standard.


The problem is that at least some of the freedom of information requests conflicted with privacy rights.


That would be the major fundamental problem, yes. Another more logistical (but still very important) problem would be the costs of availability.

Digitizing, categorizing, paying for storage, etc, could create a spending issue.


The solution is called automated anonymisation of data.


Oh, in that case.. sounds so simple! Nothing could go wrong here.


Definitely complicated, but that should be the gold standard to aim for in the future. A lot is possible that hasn't even been tried yet!


Can these agencies be counter sued for using tax payer money to sue tax payers seeking "their own" data?


This is especially good for those who think government exists to 'serve' them and is their 'servant.' Maybe this will make them wake up to the reality of who is actually the servant (slave). ;)


Oh how the turn tables...


gotta use the lawyer to file on your behalf, but in any case a more streamlined process could be codified. all persons, natural or artificial, will always have the courts as a remedy.




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