It’s time for open records laws to promote transparency

Seth Stern

Director of Advocacy

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The City of The Dalles, Oregon sued a newspaper, on behalf of Google, to block the public from learning how much water Google uses to cool its data center.

Wayne Hsieh

A drought-stricken Oregon city sued a newspaper to avoid releasing records of how much water Google used to cool a data center, claiming the records would reveal trade secrets. Google bankrolled the lawsuit for more than a year before dropping it last week.

Florida child protection authorities refused to release records after the tragic death of a toddler whose family had been the subject of about 25 complaints, falsely claiming the cause of death was still being investigated. This led to litigation which ended in a $376,000 settlement payment to the Miami Herald and other media outlets.

These are just a couple recent examples of government agencies weaponizing exemptions to open records laws to avoid transparency through frivolous legal proceedings. There are plenty more.

Bad faith excuses for secrecy fuel costly litigation

These cases are not close calls. There is no legitimate argument that how much water Google uses to cool a data center is a trade secret. Trade secrets are confidential and proprietary data — formulas, algorithms, etc. — that companies develop themselves.

Google knew full-well that its water usage was not a trade secret when it orchestrated the lawsuit. The Oregon public records law also requires even real trade secrets to be released when in the public interest. The public interest is obvious, especially when Google reportedly plans to build several more data centers in the same city.

But Google likely never intended for the city to win the lawsuit — just to delay legally-mandated transparency. When it ran out of avenues to postpone the inevitable, it instructed the city to drop the suit and paid the Reporters Committee for Freedom of the Press for its representation of the newspaper in question, the Oregonian.

Similarly, Florida child welfare authorities knowingly lied that an investigation was ongoing to claim an open records exemption and temporarily save themselves from embarrassment, at substantial taxpayer expense. Maybe they hoped to drag it out so long that the media would move on and forget about the story.

At least in Florida, citizens can hold their government directly accountable when it decides to spend taxpayer dollars denying information to the public through frivolous stall tactics. “Reverse” public records lawsuits, like the one in Oregon, remove that accountability by allowing Google or other corporations and wealthy individuals who do business with the government to bankroll anti-transparency litigation themselves.

How the secrets are kept is also a secret

Adding insult to injury, the Electronic Frontier Foundation recently reported that many agencies refuse to release their procedures for evaluating records requests. Ironically, they claim the policies themselves fall under the same exemptions they use to justify other denials.

That agencies are citing exemptions to open records laws to avoid transparency on how they administer the very same laws should leave no doubt that the laws, and their exemptions, are in dire need of reform.

EFF’s report also discusses the growing backlogs that prevent agencies from even coming close to complying with deadlines for responding to records requests. The Senate judiciary committee held a hearing earlier this year on the backlog under the Federal Freedom of Information Act but the problems persist.

Reforms are sorely needed

Open records laws are unfortunately functioning more and more like a bait and switch, enabling the government to hide behind the law while punishing journalists and concerned citizens with delays and attorney’s fees.

State and federal legislators who value transparency should:

  • Reduce and narrow exemptions to open records laws.
  • Ensure that anti-SLAPP (Strategic Lawsuits Against Public Participation) laws protect against baseless “reverse” public records lawsuits.
  • Better yet, ban “reverse” lawsuits outright, because those who do business with the government voluntarily subject themselves to public scrutiny.
  • Enact harsh penalties for frivolous objections to records requests, as well as mechanisms to ensure that objections can be resolved promptly.

They should also ensure that agencies devote sufficient staffing and resources to responding to records requests. Of course, the more information the government releases to the public without the need for a request, the lesser the need to devote resources to answering requests.

Finally, some good news

One Tennessee judge has the right idea. The city of Knoxville engaged an outside firm to conduct a search for a police chief and only shared candidates’ names and resumes during Zoom meetings, all for the admitted purpose of skirting public records law.

Chancellor John Weaver ruled last week that Knox News, which sued for the records, can question officials under oath about the search and may be able to subpoena the search firm.

It’s unfortunate that the newspaper had to resort to the courts — and that it will only be able to report on the search after the fact — but at least Knoxville residents will ultimately find out what their elected officials were hiding.

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