Greenberg: More Thoughts on FOIA Reform

The state’s editorialists continue to react to my proposals to expand our Freedom of Information Act rights (see previous posts here and here).

A thoughtful editorial from Conway’s Log Cabin Democrat begins:

“State Rep. Dan Greenberg files more bills having to do with the state’s Freedom of Information Act than any other legislator. Sometimes we wonder if the Little Rock legislator is as big a fan of open government as he is an opponent of what he perceives as the good ol’ boy network.”

Both of these seem like good motivations to me!

An op-ed column by Meredith Oakley in Sunday’s Arkansas Democrat-Gazette was less thoughtful  Oakley echoes one of the Log Cabin Democrat’s criticisms – that a blizzard of citizen FOIA requests would bring things to a halt in the attorney general’s office. As I argued before, I see little reason to believe this is true.

(**Kinkade editorial intrusion: If you’re interested in reading Oakley’s column in its entirety, here’s a link to the Arkansas Democrat-Gazette’s nightmarish labyrinth of a website. Good luck finding the piece over there, because I gave up searching**).

I’m puzzled by Oakley’s argument that it won’t cost people any money if they sue over denial of FOIA rights and have a strong case: “As for money,” she writes, “appellants whose cause is just shouldn’t be out any, because the FOIA requires the court to hold the defendant responsible for reasonable costs incurred by the appellant, or plaintiff.”

Regrettably, I think Oakley is just wrong on the facts here. Let me explain.

The citizen-requester who wants to hire a lawyer to try a FOIA claim should be prepared to shell out around $10,000 in legal fees. Even if the plaintiff prevails in trial court, the state with its full-time staff and virtually bottomless pockets may appeal, and the plaintiff will be compelled to shell out thousands of dollars more to defend the win. And even if the plaintiff prevails on the merits and receives a fee award, the governmental defendant may appeal only the fee award, based on the complex three-part test described below.

The FOIA provides almost no chance for a successful plaintiff to recover costs or attorney’s fees. First, there is no recovery at all permitted against the State “or any of its agencies or departments,” only against local governmental entities. Rep. Lindsley Smith tried to change this by amending the FOIA in 2007. Her bill was vigorously resisted by Attorney General Dustin McDaniel and other state agencies, and it failed.

Second, even when a defendant is an agency of local government, the bar for recovery of costs or fees under the FOIA is very high. The plaintiff may recover only when (1) the plaintiff “substantially prevailed,” and (2) the position of the defendant was not “substantially justified,” and (3) no other circumstances make recovery “unjust.”  This vigorous, conjunctive three-part test gives the defendant three opportunities to avoid a fee award, and the plaintiff an enormous burden—especially without an attorney.

On the merits of the three-part test, it is extremely difficult for the plaintiff to prevail. Courts tend to defer to governmental entities, heightening the burden on the plaintiff. Experience suggests that if the governmental defendant can articulate any rational basis for resisting the FOIA request, even in part, then the court will not make a cost or fee award.

In sum, the FOIA provides little promise of cost or fee recovery, and indeed no possibility of recovery at all when the state or one of its agencies is a defendant. The plaintiff is overwhelmingly likely to be on the hook personally for thousands of dollars in costs and legal fees to pursue review of a denied request. Litigation is thus expensive and inefficient to hold out as the sole means of FOIA enforcement.

States that have most effectively handled FOIA enforcement have developed new bureaucratic entities: FOIA commissions. Unless Arkansas is prepared to front the costs for such a more elaborate enforcement mechanism, tweaking the current system at least to expand the scope of advisory or administrative review on the part of the attorney general’s office is a small but important step.

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7 thoughts on “Greenberg: More Thoughts on FOIA Reform

  • January 13, 2009 at 2:49 pm
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    In 2008, the Texas Attorney General issued 17,668 routine FOI rulings interpreting that state’s open records law. That seems like a lot to me.

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  • January 13, 2009 at 4:12 pm
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    That does sound like a lot, spankmonkey, but it’s a pretty shifty number given that Texas has a population of about 24 million people. If Arkansas required the same rate of response for its 2.8 million residents, that would be a couple thousand rulings. That may or may not be a lot for the AG’s capacity — I don’t know. But it sure ain’t 17,668.
    D.

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  • January 13, 2009 at 4:33 pm
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    Let’s say that it’s 1,000 rulings in Arkansas – that’s three per day.

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  • January 13, 2009 at 5:11 pm
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    Once again, for about the third time now, REP. GREENBERG, all I am asking is this:

    Currently, a state representative may seek an AG’s opinion regarding an issue of law in this state. Why is it not easier than doing a whole bunch of legislation for the citizen who happens to be turned down to simply turn to his or her legislator and seek their assistance in filing an FOIA. The legislator could 1) advise the citizen in the legislator’s humble opinion, the FOIA is full of hooey and decline to submit the request to the AG on that basis, 2) advise the citizen in the legislator’s humble opinion, the FOIA was declined on merit and decline to submit the request to the AG on that basis, or 3) agree with the citizen that something is smelly about the decline and issue a request for an AG’s opinion regarding the legality of the declined FOIA request. This procedure is followed time and time again. Why won’t it work here?

    If I have a question regarding the legality of an issue, I may seek out my legislator and request he or she file a query with the AG. Is the citizen who wishes to further the declined FOIA attempt not doing the exact same thing?

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  • January 13, 2009 at 5:22 pm
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    And, while we are on the subject, you Mr. Legislator, are now smack-dab in the middle of a legislative session. A major segment of legislative sessions, as I seem to remember, are legislative committee meetings where legislators gather to hear the pros and cons of matters being brought before the legislature.

    Would it not be fairly simple to do the following:

    1) Request from every state agency, board and commission the number of FOIA requests they received during the previous calendar year,
    2) Request a breakdown from every state agency, board and commission resolution of each request, i.e., complied with, denied, reason for denial, and any still in progress.
    3) Place all the numbers generated above into columns and then total the columns at the bottom of the page.
    4) Determine the number of total denials as compared to a) the total number of submissions, b) number of days in the year, c) total number of work days in the year, and d) anything else that stands out. Items that stand out might be a single agency, board or commission that has a large number of denials, etc.

    Use the information above to determine if there even is a problem with a large number of denials.

    I still say the easiest and cleanest method is to go to the legislator and have him or her make the request of the AG’s office. Of course, legislators would then be in the trick-box of either pissing off a voter or pissing off the AG. Ouch, a legislator in a trick-box…no wonder this is why I get few answers about using a legislator in the loop.

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  • January 13, 2009 at 5:25 pm
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    And, Mr. Legislator, don’t hide behind trying to say agencies, boards or commissions might not have the information. Surely any governmental body in this state keeps accurate track of the number of legal submissions they receive and act upon in the course of a year.

    Wait, based on some of the recent legislative audit findings, they don’t even manage to keep track of the taxpayers money. If you use this excuse, you might just have a point after all.

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  • January 15, 2009 at 2:08 pm
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    Cameron you obviously haven’t had many dealings with the state of Arkansas. There are still many departments which are not properly computerized, and even if they are do not properly track data.

    I hope all of Representative Greenburg’s FOIA bills pass. Open Government is a good thing, not that it will make it run any more efficiently, but a good thing none the less. We especially need to get the Every Cent Exposed law passed for the exact reason you mentioned of “losing” taxpayer money, which should have the additional benefit of exposing more corruption.

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