The ‘really dangerous’ precedent for reclaiming public records

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“NO TAKE-BACKS” is a common rule on the elementary school playground. It is not the rule when it comes to public records in the state of California, where public agencies can and do try to claw back documents after they’ve released them, and where one school district recently asked a court to award it $450,000 from a citizen who had obtained records the district later withdrew.

The California Public Records Act states that if a record is released to the public, then a government agency can no longer claim that record should be exempt from future disclosures—a common clause in state and federal public records laws. But in 2016, the Supreme Court of California ruled in Ardo v. City of Los Angeles that if a public agency inadvertently releases a document that should have been exempt, it can demand that the recipient give the document back, or else destroy it.

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A bill currently working its way through the California Legislature, Senate Bill 1244, sought to change that. The author, Democrat Bob Wieckowski of Fremont, wrote the bill so that it would limit almost any ability for public agencies to take back government records. Had it become law in its original form, news organizations would no longer face the risk, however remote, that a public agency could sue them to take backs records it had released.

By the time the bill passed the Senate Judiciary Committee on May 8, it had been amended to completely remove that provision. What’s left of the bill states that if a fight over records winds up in court, the loser can be ordered to pay the winner’s court costs and attorney’s fees only if the loser is a public agency. Someone who requests public records could never be ordered to pay a government agency’s legal bills, even if a court rules against the request, unless the request is clearly frivolous.

News media, civil liberties, and open government advocates supported Wieckowski’s bill before the amendments and still support it after them. The opposition—consisting of interest groups representing every type of public agency in California—dropped away after the bill was amended, and its backers now expect it to sail through the legislature.

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“This bill is still a good one,” says David Snyder, the executive director of the First Amendment Coalition, a California nonprofit. “It’s not as strong as we would have liked, but it’s better than nothing, that’s for sure.”

 

There doesn’t seem to be any legal route for a government agency to order a news organization not to publish information because the agency didn’t mean to release it. But that doesn’t mean agencies don’t try.

 

CALIFORNIA IS UNUSUAL in having a clear precedent that allows for some clawback of public records releases. David Cuillier, the director of the University of Arizona School of Journalism and a professor there who teaches courses on public records and government transparency, says he’s not aware of any such provision in federal law.

Cuillier asked a group of journalists, lawyers, and academics on a Freedom of Information Act listserv if they’d ever encountered public records clawbacks with federal agencies or states outside of California. Most said no; the few who said yes reported attempted clawbacks, but not successful ones. For example, a Washington state court ordered in 2016 that the nonprofit news site MuckRock remove documents that the court ruled were protected trade secrets. The order was quickly reversed.

Cuiller says the status quo in California is “really dangerous,” and thinks the potential new law, as it stands now, doesn’t do anything to fix that. The inescapable problem is that reversing a public records disclosure means telling people they can’t share information the government legally and voluntarily gave them.

“It’s hugely problematic from a First Amendment perspective,” Cuillier says. “Anytime you have the government telling a citizen they can’t legally communicate information they legally obtained, that’s prior restraint, and it’s really un-American. There’s no way this can be enforced.”

Cuillier is right; there doesn’t seem to be any legal route for a government agency to order a news organization not to publish information because the agency didn’t mean to release it, outside of narrow exceptions like matters of national security. But that doesn’t mean agencies don’t try.

“News organizations are increasingly getting letters like, ‘We didn’t mean to send you this, give it back,’” says Nikki Moore, legal counsel for the California News Publishers Association, a sponsor of Senate Bill 1244. “At this point, they constitute a nuisance, but what happens when those nuisance letters go to a college newspaper or a small paper that doesn’t have the resources to fight, or who might just be intimidated into giving it back?”

 

WE ALREADY KNOW what can happen if a demand to give back records goes to a private citizen, and not a news organization. Wieckowski’s bill was prompted by a case out of his Bay Area district. In the summer of 2014, Elizabeth Brazil of Newark, California, asked the Newark Unified School District for emails and other documents under the California Public Records Act.

Brazil was a supporter of the Newark superintendent of schools, Dave Marken, who had recently resigned under pressure from the school board, the San Jose Mercury News reported at the time. Brazil wanted documents, including emails, that she thought would shed some light on Marken’s departure. (Marken offered to rescind his resignation if the board would stop micromanaging, and the board declined his offer; a month later, he tried again, and the board welcomed him back.)

Newark Unified turned over the records, and almost immediately tried to take some of them back. More than 100 documents should not have been released, the district said, because they were covered by attorney-client privilege or attorney-work product privilege.

After the school district won an appeals court decision in its favor, it asked the court to order Brazil to pay $450,000 in legal fees the district had racked up pursuing the case. The judge did not award the district the money; still, the fact that it could have was a wake-up call to journalists and open government advocates in California.

“It would have been utterly crippling,” says Paul Nicholas Boylan, Brazil’s attorney. “She would have had to sell her house to pay that. Half a million dollars for a normal person is an incredible amount of money.” Boylan maintains that some of the records should have been public all along, and Brazil is still fighting for access to them. Newark Unified did not return a call seeking comment.

 

If public agencies know they’ll have to pay their own legal bills, bringing these cases becomes riskier for them.

 

THE BRAZIL CASE illustrates the advantage news organizations have over private citizens in a case like this—beyond having First Amendment lawyers on call, of course. When Brazil and her allies got the district’s records, delivered on a thumb drive and CDs, they shared them only among themselves. That made it possible for a court to order them returned or destroyed. The lesson for news organizations, and for private citizens who could start their own news blogs: If you have something good, publish it. Get the toothpaste out of the tube, and let the public agency try to convince a judge to put it back in.

“When I have a release of records case, usually journalists are involved,” says Boylan, Brazil’s lawyer. “When the records are released, I make sure they publish them on the internet. Once it’s been released for legitimate news-gathering purposes, that changes things.”

While Wieckowski’s bill won’t eliminate public records clawbacks in California, its supporters hope it will make them less likely. If public agencies know they’ll have to pay their own legal bills, bringing these cases becomes riskier for them.

Though controversial as it was originally written, Wieckowski says he hasn’t heard from anyone who opposes the bill now. Newark Unified going after Brazil for $450,000 was “a horror story,” the state senator says.

The public agencies that opposed the original bill said it would have punished them for innocent mistakes, by forcing them to release records that might have sensitive medical or financial information about their employees or constituents. Wieckowski says he hopes to write another bill on the topic next year that addresses some of those concerns.

“You have to balance privacy and transparency, and I think this was not quite cooked yet,” he says. “We got half a loaf this time, and we’ll take that.”

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.