I teach journalism and media law courses at the University of Kansas, and part of my job is to help students think critically and creatively about the legal problems that mass communicators most often face. We read stories and cases to illustrate abstract concepts, and in that regard I’m now indebted to the Citizens Awareness Foundation (CAF)—which has, reportedly, contributed greatly to the body of knowledge on how not to use public records laws.
Consider these excerpts of a Nov. 9 story about the Florida-based nonprofit organization:
[It] was founded to “empower citizens to exercise their right to know,” according to its mission statement. The South Florida millionaire backing the foundation hired one of the state’s most prominent public records activists to run it, rented office space, and pledged to pay the legal fees to make sure people had access to government records.
But a review of court records and internal communications … shows that the foundation is less interested in obtaining records and educating the public than in working with a partner law firm to collect cash settlements from every lawsuit filed.
The article, by Tristram Korten and Trevor Aaronson of the Florida Center for Investigative Reporting (FCIR), goes on to report that since January the CAF and a sister group have filed over 140 lawsuits in Florida alleging violations of the state public records law; that the CAF had a quota of 25 suits per week to refer to the affiliated O’Boyle Law Firm, and that suggestions to refer cases to other firms were rebuffed; that the firm demanded settlements that would have generated large profits; and that the CAF and firm are housed at a company owned by a man best known for sending 1,300 record requests to a state attorney’s office and for suing his hometown after sending it 1,200 requests.
The main problem here is one I underline in my media law courses: It’s important for journalists and others to be good citizens under FOI laws. That is, putting aside how you’re entitled to use them, you shouldn’t use FOI laws in arbitrary or unreasonable ways—you’ll poison the well for everyone. Misuse can encourage legislators to write more FOI exemptions into law, or make record custodians more resistant to requests.
So, there are institutional and public-interest rationales for the press to police how FOI laws are used. That’s partly what motivated Korten and Aaronson to call out the Citizens Awareness Foundation.
“I thought [its] behavior could have damaging implications in the future, creating the perfect excuse for someone in government to say, ‘See, this law is being abused and we should do something,’” Korten told me in a recent interview. “In that sense, we basically watchdogged the records law to protect it in the public interest.”
(We should note here that Joel Chandler, an open government activist who was hired to run the CAF and then left because of ethical concerns, said he thought the FCIR article was “very good.” But, he said, in his view it “sort of gave a pass” to the state contractors, which he said should be well aware of their open-records obligations, and many of which “have not acted in good faith, either.” A lawyer for CAF and the O’Boyle firm, contacted yesterday by CJR, did not offer a comment about the FCIR story.)
Notably, it’s not uncommon for law firms to start up in states where the public records law has penalty or attorney’s fee provisions. One example is the Allied Law Group based in Seattle, WA, which is best known for its open-government work. That firm doesn’t arbitrarily bring hundreds of suits annually just to generate income—it has a reputation for selectively bringing suits that not only serve client needs but also advance the FOI cause.
According to FCIR’s reporting, the foundation/law firm tag-team is a different animal.
In many cases, the firm used an April 2013 amendment that expanded the state’s already strong public records law by requiring government contractors (1) to “keep and maintain” records that “ordinarily and necessarily would be required by the public agency” to carry out its functions, and (2) to provide access to records “on the same terms and conditions that the public agency would provide.”
Korten and Aaronson reported that the firm would send a request to a contractor, and if the contractor didn’t comply, a settlement demand would follow; and if the contractor dragged its heels or refused to settle, the firm would file suit. There’s nothing wrong with any of that, per se. But the devil’s in the details noted earlier: the weekly litigation quota, the CAF’s parasitic relationship with the O’Boyle firm, and so on.
Concerns about the firm’s practices have prompted officials to revisit the records law. State Attorney General Pam Bondi issued an opinion in June, finding that the April 2013 amendment applies only when a contractor is “acting on behalf of” a government agency. And State Sen. Wilton Simpson, R-Trilby, is preparing to introduce a bill to clean up the amendment’s language.
It would require the appointment of a custodian to maintain a contractor’s public records, and would require a requester to take certain steps before filing suit (e.g., notifying the custodian of intention to sue, and giving the custodian time to remedy the problem). What the bill can’t do is focus on the requester’s intent: to collect information vs. to collect fees. That would violate the state constitution.
Simpson has been conferring with trade associations, including Florida Business Watch, a network of government contractors. Its president, Beth Rawlins, the daughter of journalist Tom Rawlins, said she supports the general direction of Simpson’s bill.
“I have a strong respect for open government and accountability,” she said. “But this situation is so egregious—the Citizens Awareness Foundation has abused [the 2013 amendment]. This kind of legislation is necessary, and I don’t see it as mutually exclusive from open government.”
Simpson also has been in touch with the Florida-based First Amendment Foundation (FAF), which works to preserve open government statewide. His chief legislative aide, Rachel Perrin Rogers, said it was the FAF that urged Simpson to solicit the June opinion from Bondi. “The senator favors open records, so, for our bill, whatever the clean-up is, it shouldn’t limit access to records,” Perrin Rogers said. (I could not reach anyone at the FAF for comment.)
His commitment to open records notwithstanding, Simpson might not be the ideal person to spearhead the bill, because he could be directly affected by it, depending on how the courts decide what it means to “act on behalf of” a government agency. In August 2013, Steve Miller reported for the FCIR that an asbestos removal company owned by the senator earned $267,432 in state contracts between 2007 and 2012; and from February 2013 to August 2013, Simpson secured another $520,000 worth of state contracts.
However this plays out, I hope the FCIR stays on the story, and I hope other outlets—including the numerous publications around the state that republished the investigation—pick it up. The misuse of the records law, the officials’ response to it, the contractors who want to do business with the government, and the citizens who want to see how the government is operating in their name—it’s all important.
As Korten told me: “It felt unusual to write a story on the public records law from the other side of the street—to focus on people treated unfairly under the law. But the public interest called for it. We all should take notice when something’s jeopardizing the robustness of our sunshine laws. They’re not self-sustaining—they require attention.”
Greg Marx contributed reporting.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.