[IP] more on ] Ask government for public records, get sued [fs]
Title: more on ] Ask government for public records, get sued [fs]
------ Forwarded Message
From: Hank Levine <hlevine@xxxxxxxxxx>
Date: Sun, 27 Mar 2005 14:13:11 -0500
To: <dave@xxxxxxxxxx>
Subject: RE: [IP] Ask government for public records, get sued [fs]
If the AP article is correct, this is a tempest in a teapot, a big-time misunderstanding by civil liberties zealots [among whom I am normally proud to be counted].
What’s at stake is not a city’s or state’s right to sue anyone in the normal sense of the word – dragging them into court where they face the threat of having to pay damages or a fine, or go to prison, or be ordered to perform [or not perform] some act. The suits that are being talked about seek what are known as Declaratory Rulings, which are ruling from a court that declare what the law is. The idea is to let a state or agency get a ruling from a judge about its obligations before agreeing [or refusing] to turn over records that someone thinks are public and someone else [presumably the agency] thinks are not.
Suppose the state freedom of information act says that cities or state agencies need not turn over records that concern matters that are the subject of ongoing “law enforcement” investigations. The state gets a request from the Capitol News for records concerning the environmental activities of John Brown, who as it happens is the subject of a civil investigation for polluting a local river. Was the term “law enforcement” intended by the state legislature to cover civil as well as criminal investigations? If the state can’t seek a declaratory ruling on the question, then the only thing it can do is refuse to turn over the records and await a suit by the Capitol News. But if it has the right to seek a declaratory ruling, it can go to court – with the Capitol News as a nominal defendant that is at risk of getting its request turned down, but little else – and find out from a judge whether the law was indeed intended to shield records of civil as well as criminal investigations. That’s arguably more efficient than waiting around to get sued.
There are legitimate issues surrounding the right to seek a Declaratory Ruling on a request for [potentially] public information, but the notion that doing so somehow infringes on the right of the person who asked by intimidating them or dragging them into court isn’t one of them.
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