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Public universities, local governments turning to preemptive lawsuits to skirt transparency

Oct 4, 2017

File a FOIA request, get sued.

A journalist, taxpayer, or government watchdog group can use the Freedom of Information Act to request records from a public body — maybe a government agency or state university, for instance.

The response? The public body sues the requester.

It’s happening in Michigan and spreading through the country. But what does this mean for a free press and transparency of public information?

Robin Luce-Herrmann, attorney at Butzel Long and general counsel to the Michigan Press Association, joined Stateside to discuss the FOIA lawsuits.

When a FOIA request is placed, Luce-Herrmann said the public body receiving the request normally has three choices in how to respond.

“They can provide all of the information, they can provide some of the information, or they can deny the information in its entirety,” she said, “And instead of that, we’re seeing a pattern where public bodies don’t take the choices that the legislature gave them in the FOIA statute, and instead they go to court to sue the requested for the request.”

Already there have been multiple cases of FOIA filers facing lawsuits in Michigan, including Greenville Daily News, ESPN, and MLive. These lawsuits can be costly for the requesters.

Normally, if a FOIA request is denied, Luce-Herrmann said, then the requester has the option to pursue the documents in court. Then, if the documents are successfully released, the requester is entitled to compensation for the attorney fees.

In a lawsuit filed by the one facing a request, however, this isn’t the case.

“In these kinds of cases, the public bodies essentially prevent the requester, even if they get the records, from recovering their attorney’s fees and costs,” Luce-Herrmann said, “And of course they are dragged into court and incur the court costs and attorney’s fees without ever having made a decision to pursue the documents in a court of law.”

Luce-Hermann says these lawsuits could also discourage people from sending out a FOIA request for fear of a lawsuit if the public body “doesn’t like the request or has issues with the request.”

“It has a lot of negative repercussions for the requester,” Luce-Herrmann said.

Listen above for the full conversation.

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