By Jonathan Peters, CJR
This article first ran on August 2, 2016 on the Columbia Journalism Review's website.
Michigan’s primary elections, taking place today, may offer few competitive races. But one of them has offered a look at an unusual type of legal action—one in which a government entity sues a local media outlet in response to a public-records request.
These cases aren’t unprecedented. Often, they arise when a local government entity says it fears being sued after responding to a records request, and decides to go on offense. But they are, fortunately, uncommon, in part because courts generally have tended to take a dim view of the legal maneuver—which is what happened here.
The case began when The Daily News, in Greenville, used the state records law to request the personnel files of candidates for sheriff in two counties. The paper’s plan, the publisher said, was to “research whether there was anything in the candidates’ career history that might support or put in question their ability to uphold the highest standard of behavior and judgment required to hold the office of sheriff.”
One county released the files immediately. But Montcalm County, where Deputy Charlie Mahar and Undersheriff Mike Williams are opposed in the primary, responded differently. According to court papers and a storyin The Daily News, the controller-administrator released the candidates’ work histories but not their disciplinary or commendation records, which are kept in the sheriff’s office. Mahar’s attorney had asked the sheriff not to release those.
Shortly thereafter, the county invited The Daily News to submit a modified request for only the last four years of Mahar’s and Williams’s personnel files. The paper refused to do so, and then Montcalm County sued the paper—asking the trial court for a declaratory judgment to resolve what it characterized as a “statutory conflict.”
"Never about concealing information"
In court papers and at a hearing, Montcalm County attorney Timothy Monsma argued that the county faced a conflict between the state FOIA’s disclosure requirements and another statute protecting employee privacy rights in discipline records over four years old. He said Michigan courts have not resolved the inherent conflict, and that the county faced inconsistent obligations and liabilities.
“This case was never about concealing information or preventing the disclosure of public records,” Monsma told me. “The county took no position on whether the records should or should not be disclosed. However, the county considered this the best way to protect the taxpayers’ resources, by avoiding additional subsequent litigation, while also providing the interested parties (i.e., the candidates and The Daily News) with an opportunity to be heard on the issue.”
Meanwhile, attorney Joseph Richotte, who represented The Daily News,argued—in court papers and at the same hearing—that the county had no right to sue the paper. FOIA lawsuits are of two kinds, Richotte argued: one brought by a requester after access has been denied, and a second, known as a “reverse FOIA,” brought by a third party who claims “a common-law or statutory right” to block the release of records about themselves.
A declaratory judgment action filed by a government entity itself to resolve a conflict doesn’t fit either of those categories. Therefore, Richotte said, the court lacked jurisdiction because Montcalm’s action wasn’t even authorized by law.
The judge, who had temporarily blocked release of the personnel files, agreed. In his ruling, the judge ordered the county to release or deny access to the requested records, in whole or in part, under the state FOIA—in other words, to respond to the paper’s original request, following the path set out by the FOIA, rather than a declaratory action. That was the proper course, he said, for any records dispute.
After the court ruled, Montcalm County did respond—and it released the personnel files the paper had sought. Monsma, the county attorney, told me, “Although we do not agree with [the court’s] conclusion, we respect the … ruling, and further appeals would not provide the cost-effective or expeditious resolution that the county was hoping to procure.” The county released the files, he said, because “the public interest and statutory language seemed to weigh in favor of disclosure.”
And for the record, the files did contain some notable items, as The Daily News reported.
For example, Mahar’s file revealed that he was once disciplined in connection with an affair he had with a woman he met while investigating a criminal sexual conduct complaint she filed against her husband. Mahar and the woman sometimes met during his patrol shifts, making him unavailable to take calls and radio dispatches. Meanwhile, Williams’ file revealed that he was once disciplined for losing nearly 11 grams of cocaine, given to the department by the DEA for a training exercise involving a drug-sniffing dog.
Frustrating the purpose of FOIA
I have some sympathy, in this case, for the county’s desire to clarify its obligations and minimize its liabilities. But that can’t come at the expense of open government—and beyond the facts of any particular dispute, the practice of suing requesters undermines public-records law.
As I wrote last year, these lawsuits filed against record requesters create a real risk that the free flow of information will be chilled. You can even liken the actions to SLAPPs, because they force requesters to surrender or hire an attorney to defend them, a burden that many can’t bear.
Moreover, these legal actions frustrate the purpose of the typical FOIA statutory scheme, which gives the requester alone the choice of going to court, and requires the government to pay the litigation expenses if a requester prevails.
A declaratory action is basically an end run around that scheme. It creates a scenario, as Richotte argued in a motion, in which “every person who requests a public record now does so at the risk of being sued”—in an action, no less, that could require them to pay their litigation expenses even if they prevail, because declaratory actions do not follow the same fee-shifting rules.
Even if you’re sympathetic to the government, that’s too high a price to pay.