Government & Politics
 

If you exercise your right to view government records, should you get sued? This woman was.

Four months ago, Gwen Payne was driving through Tallulah, Louisiana, selling a text-message marketing service to businesses when the local paper caught her eye.

The Madison Journal, like many small-town papers, boasts an anemic staff and doesn’t have a working website. Gwen stopped in to talk texts and walked out a volunteer reporter.

In just a few months, Gwen revealed that promised projects were unlikely to materialize and questioned why the city wasn’t applying for certain grants. Cheered on by locals on Facebook, she made the ruling class uncomfortable. She started getting tips on more stories, so she emailed her first public records request to the city.

For her trouble, she became the latest victim of a disturbing trend around the country: the reverse public records lawsuit. The city of Tallulah sued her for trying to access records of how its officials were spending taxpayer money.

Suits like this are taxpayer-financed abuses of government power. And they’re becoming more common.

Trouble in Tallulah

Gwen was doing the sort of work that is unfortunately hard to come by these days, especially in an 8,000-person town like Tallulah. Its truck stops are barely a blip on Interstate 20 between Jackson, Mississippi, and Monroe, Louisiana. Nearly half of its residents live below the poverty line. When you turn on the faucet, the water often comes out brown.

Gwen explained to a stunned public that a $22 million water treatment plant was not on the horizon, despite the mayor’s promise three years ago that it would be built. It turns out the money had never been appropriated by the Louisiana Legislature, and the project itself sat at a low priority at the state bond commission.

Her attention shifted to the city’s finances, particularly the mayor’s travel. She asked for all credit card statements, tax receipts, grant letters, and travel vouchers for four years. The city rejected her request.

Then she was served with the lawsuit.

It made wild claims about the mayor’s power to be the boss of everyone in city hall. It sought $40,000 so she could exercise her right to check in on what government officials are doing — paid up front, please.

She called the Louisiana Press Association’s freedom of information hotline. I man the hotline as the press association’s general counsel, so we had a long talk on a Sunday afternoon.

My first reaction was that her request was incredibly broad. I told her that while she was entitled to all of those records, she would have better luck eating the elephant “one bite at a time,” as a favorite judge of mine likes to say. So she narrowed her request  to one year’s worth of travel records.

I do a lot of this work, and I’m used to records custodians denying a request if they think (rightly or wrongly) that it is “overly broad.” In Gwen’s case, even though she had offered to work with the city to get the records over time, as the city made them available, she just got sued. The city didn’t even bother to mention her narrowed request in the lawsuit.

The city argued Gwen should be charged “research fees” to review things like bank statements and travel vouchers, and she should be monitored while reviewing the documents.

This isn’t how the law is supposed to work

The Louisiana Public Records Law provides that an aggrieved requestor can sue a public body if it fails to turn over public records within a certain time. The Lens, one of my clients, has used this law once or twice to get records they wanted — and to report on things that matter. (The Society of Professional Journalists funded one of those lawsuits.)

If the requestor wins, she generally gets attorney’s fees and costs. But you have to have the money, or pro bono counsel, to even get started. In short, there’s a high barrier to entry for a citizen requestor. In many cases, citizens who get a denial from the government are just stuck.

When I have seen suits against a requestor, they’re filed because government officials are concerned that no matter what they do, they will get sued. In this case, the rush to the courthouse by the mayor of Tallulah appeared calculated to get Gwen to back off.

In the suit, the mayor asked the judge to declare him the supreme boss of Tallulah’s city hall. He had gotten into a heated disagreement with Gwen the first time she showed up to look at spending records. She was escorted out by a friendly police officer.

My partner Dave LaCerte and I filed a demand against the city for Gwen. We sought sanctions against the mayor and the city clerk for what we argued was an abuse of government power.

At a hearing soon after Independence Day, the city agreed to produce the records Gwen sought in her narrowed request and to pay our fees and costs, which exceeded $10,000. We agreed to waive our request for sanctions on the mayor or the clerk, which we knew would be extraordinary.

No consequences, no restraint

The judge dealt with the issue at hand. But the larger problem — which is out of his control — is that it’s not their money. By they, I mean the government officials.

It’s not their money; it’s ours, and they’re going to keep spending it. Practically speaking, there’s no downside to filing harassing lawsuits like this. In Louisiana, public officials don’t pay court filing fees, and they have free lawyers. Free to them, but not to us.

I basically negotiate with, and sometimes sue, governments for a living, so I know their mindset. I’ve seen the most fastidious budget-checkers defer to their attorneys, even if the cause of action is on legal life-support.

The lawyers get paid, either through their full-time salaries or by the hour. And sometimes, like in Gwen’s case, taxpayers get the bill.

This was the second reverse public records lawsuit I have defended in the last few years. The state legislature (briefly) considered banning them last year, and I testified in support of that bill. The legislators were shocked—many of them audibly—to learn that Louisiana governments sue citizens for exercising the constitutional right of access.

The ban did not pass, but an amended version now allows a defendant to get attorneys’ fees if she’s sued by a public body and wins, like we did in Tallulah.

Still, Gwen’s case shows that public officials carry a big stick—your money. It’s enough to scare anyone, especially a volunteer reporter like Gwen, from asking too many questions.

People shouldn’t be afraid that seeking records of government spending could get them sued. And we should hold our government officials accountable when they waste our money filing frivolous lawsuits. Such actions are antithetical to liberty; they’re tyranny.

Scott Sternberg of Sternberg, Naccari & White, is a New Orleans-based attorney who specializes in litigation, open government and public affairs law.

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