Contrary To Popular Belief: FOIA’s Are NOT Free

Elizabeth Scheinberg with Children & Educators First asked me to repost an article she wrote yesterday.  This is in response to Transparent Christina’s post last week about John Young’s FOIA petition.

Red Font/bolding is for emphasis.

TransparentChristina has shared some posts about a recent CSD FOIA with no comment mechanism.  It’s a tactic we often see associated with political bullies, a markellian method to stifle public discourse.
  
So, let’s have at it: FOIA is NOT Free. I disagree with TC.  I wasn’t present at the meeting and didn’t hear the public comment.  However, I can offer a rebuttal on generalities:

FOIA is a fantastic tenet of our democracy. With little exclusion, FOIA creates a lens for the public to look through and evaluate the performance of both elected and appointed officials. It is invaluable. But, it does come with a price tag. 

A recent CSD FOIA ran the district upwards of $3000.00.  Not a lot when compared to the budget of that beast, but significant enough to those who care.  I care. CSD is in a financial crisis.  And while I love FOIA (and I really, really do) I can’t justify what my district was forced to expend to satisfy a malicious and mostly frivolous FOIA. (Already noted in a previous post that 1 facet of the FOIA was conceded to by CSD; as for the other two issues, the DOJ found for the board, not the complainant.)

Forced to respond?

Yes, TC contends that “the public body has to DECIDE whether to respond via counsel to the allegation.”  That’s true on face value. But, only on face value. The body could choose to ignore that notification and request for evidence sent by the Department of Justice.  This will produce two outcomes, neither preferable to the engaged constituent:

  1. First, the body runs the risk of creating a public perception that it is above the law, above even the Department of Justice.  This route will tarnish the body’s public perception = a public less willing to support it.
  2. The body run the risk the FOIA opinion will be founded on whatever evidence the complainant provides – legitimate or fraudulent. I had the pleasure of communicating with the Department of Justice this past week. The department was most helpful in explaining what happens when the subject of FOIA does not respond to the DOJ’s inquiry.
    DOJ’s explanation:

     “opinions will be based on the evidence available.”

    Refusal of the body to participate = radical neglect that defeats the entire judicial process around FOIA.  It impugns the SPIRIT of FOIA! And leaves it open for manipulation because the only “evidence” provided will be that of the complainant.   

The COST of FOIA:
 
Moreover, regardless of the body’s decision to respond or not, the FOIA has already begun to cost tax payers’ dollars. How? When the FOIA petition reaches the DOJ, the department is obligated to assign an attorney to investigate the allegations. The hours consumed by the investigation of the petition and research into both the application of the law in the past and present and the evidence presented drain resources (financial and manpower) that could be dedicated to a host of other investigations occurring within the department. While the DOJ may budget funds to a FOIA department, the absences of a current petition does not mean that department personnel are idle.  It is fair to say their talents are used elsewhere within the department. The cost clock is ticking.  

Thus, the Outcome of the body not responding does not mean FOIA is FREE.  There is still a cost born by the tax payers – the cost of DOJ’s investigation is supported by tax payer provided funds!

Superfluous FIOA and Malicious Intent:

I’ve written my fair share of FOIA over the years.  It’s a necessary process and a right guaranteed by our democracy.  It holds public bodies accountable for their collective and individual actions.  However, it can also be abused. In the case of the Christina FOIA, there has been a limited dialogue and deep misunderstanding propagated by those who wish to claim winner-ship of the FOIA.

The petition stated 

Based on these 2 concerns in combination, I am asking for clarification of the previous FOIA opinion in order to ensure the CSD BOE acted properly. It is my ardent hope that we did so, but I feel we need to confirm this in light of the Appoquinimink FOIA opinion. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/

It appears the petitioner is acting in the best interest of the pubic body. However, in the comment section of this post, the petitioner goes on to make this accusation:

…Board members need to understand their roles and those that withhold information from others simply impede the governance necessary to help children. Worse, others don’t seem to take past experience in governance and apply the positive parts while discarding the negative. I’m not speaking of any single member, but some about all.
It’s a disease, and I think I know how you feel about those that flout the FOIA statute and act to secretly traffic information that board members need to make informed decisions. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/

And there you have it: That this petition provided clarification to the petitioner on several fairly recent FOIA opinions issued by the DOJ was secondary to the petitioner’s assertation that his fellow board members failed to learn from past experience and more importantly that they “secretly traffic information” to eachother. The DOJ opinion essential deems this malicious accusation to be unfounded.  It did not opine of any secret or otherwise information trafficked between the body’s members.

This was a superfluous and malicious filing. Had the body voted to ignore the Department of Justice’s communication, the body would have lost its opportunity to provide widely important exculpatory evidence and the finding might have been radically erroneous. 

FOIA IS NOT FREE.  And while it is open for abuse, the thoughtful and correct course is for a body to respond always.  It is only way to reach a unbiased finding based on evidence and law.

And if someone is telling you otherwise, they probably have oceanfront property in Tennessee to sell you too.