Process to resolve public record disputes ‘broken’ in most states, review finds

Dana Holladay Holyfield has worked as a nurse in Alabama for many years, but she has never been paid as low as at Huntsville Hospital.

She wondered what executives at nonprofit facilities were doing and filed a public records request to find out. Because the hospital is managed by a public board, it is subject to the state’s open records law, she said.

After months of obstacles, Holladay Holyfield was faced with a decision: pursue an expensive lawsuit for information, or give up.

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“This should be easy to access,” she said. “I have three children with her, and I take care of my mother-in-law and husband, which means I don’t have her $10,000 to spare.”

Holladay-Holifield’s predicament is emblematic of what experts say is a fundamental breakdown in American democracy. It is a fact that in most states, litigation is the most effective, and often only, option for residents to resolve open government disputes.

“Unfortunately, almost everywhere in the United States, you have to go to court to enforce these laws, and that’s just wrong,” said Joseph L. Brechner, director of the Freedom of Information Project at the University of Florida. David Cuillier said. “If the system requires ordinary people to hire lawyers to make democracy work, then the system is truly broken.”

It has an office that can resolve residents’ complaints by forcing government agencies to submit documents and comply with public meeting requirements, according to a national review of procedures by The Associated Press and CNHI News to coincide with Sunshine Week. It turns out that less than a third of the states.

In most states, if residents believe that authorities are unlawfully withholding information from the public, they have only one meaningful option: to go to court. The system has a chilling effect, preventing civilians from knowing everything from police investigations to how elected officials make decisions and spend taxpayer money.

Alabama is one such state.

In early 2023, Holladay-Holifield began requesting records from Huntsville Hospital, which is overseen by the City of Huntsville Health Care Authority, a public corporation. She petitioned the board, but her attorney repeatedly denied the request. She then contacted many local officials, but no one could help her.

Finally, she consulted a lawyer, but was told that the lawsuit would likely cost thousands of dollars.

Joe Campbell, general counsel for the Huntsville Hospital System, said the facility’s management and board of directors have sought to provide appropriate accommodations for Holliday-Holyfield “without compromising our fiduciary duty to protect the hospital.” Ta.

“We have notified her in writing that we maintain that executive salaries are confidential and not subject to public records requests,” Campbell said in an email.

But J. Evans Bailey, a media law attorney in Montgomery, said a landmark Alabama Supreme Court decision held that all health authorities in the state are subject to public records laws.

“If you’re subject to open records laws and you have documents that show what the salaries of various executives and senior-level people in a government agency are, that should be public record,” Bailey said. Stated.

The system has no teeth.

An Associated Press/CNHI investigation of 50 states revealed a patchwork system for resolving open disputes between governments. Some states, such as Arizona and Indiana, have offices that can review residents’ complaints, but officials cannot be forced to follow the findings.

Others give lawyers general powers to present opinions and take matters to court, but experts say they rarely bring cases or prosecutions.

“One of the real challenges with these laws is that even though they have built-in enforcement tools like civil and criminal liability, they are rarely enforced,” said Chip Stewart, a media law professor at Texas Christian University. ” he said.

These systems can be a burden to taxpayers as well as civilians.

When LaPorte County, Indiana, Attorney Sean Fagan took office in January 2023, one of his first requests was for emails from the department’s previous administration to confirm details of ongoing cases. It was to access.

problem? The emails are on a server controlled by county commissioners, who have refused to hand them over.

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The Indiana Attorney General, the state Public Access Counsel, and the Indiana Prosecuting Attorney Council all agreed that the state’s public records access law gave Mr. Fagan a legal right to obtain the emails.

Commissioners still refused to provide them. The county attorney warned of possible litigation. So does Indiana Public Access Counsel Luke Britt, whose job is to oversee compliance with public access laws.

“LaPorte County has previously ignored the position of our department and other state agencies on this issue, which will likely lead to costly litigation and ultimately leave it to the courts to resolve.” “There is a possibility,” Britt wrote in a brief to the board. Release email.

That warning became reality in June when Fagan sued the commissioners.

But because Mr. Fagan is a LaPorte County employee, taxpayers in and around the state are on the hook to foot the bill. The attorney general’s office has contracted with an outside representative for Mr. Fagan, and the commissioners are using public funds to hire lawyers.

price of victory

Pennsylvania is one of the few states with a strong office to resolve public records disputes. The Office of Public Records will review the appeal and issue a binding decision. It can be appealed to the court. Some experts say this office is one of the better systems for handling such complaints.

Still, there can be costly and time-consuming hurdles.

Simon Campbell, a prolific records requester from suburban Philadelphia, saw his challenge request in the Pennsylvania Supreme Court, a rare venue for open records appeals.

he won.

A Feb. 21 opinion confirms that the Pennsylvania Interscholastic Athletic Association, a nonprofit organization that regulates athletics for 350,000 middle school and high school students, is a public entity subject to the state’s right-to-know law. did. The ruling facilitated the release of thousands of pending financial documents and communications.

Mr. Campbell’s involvement was as a hobby and a despicable act for a bureaucrat to block public access. He took part in the first stalemate battle waged by The (Sunbury) Daily Items, an affiliate of CNHI.

Campbell said the case took four years and cost tens of thousands of dollars in legal fees, which he says he will never recover.

“There can be no society where private citizens have to pay private lawyers to protect laws enacted by the General Assembly, and that’s exactly the reality here,” he said.

difficult to navigate

Systems for resolving open disputes between governments vary widely from state to state and can be complex and difficult to navigate. They may also charge high fees to those seeking information.

Thomas Mattson, a videographer from Salem, Massachusetts, regularly requests body camera footage from local law enforcement agencies. He said such requests are often denied based on investigative immunity.

In Massachusetts, the Secretary of the Commonwealth’s Records Supervisor can make decisions on records disputes, but the ultimate enforcers in such cases are the Attorney General and the courts.

Mattson said he has appealed dozens of denials to the records management supervisor and that a letter from the office is often enough to get compliance.

But he usually charges a fee, sometimes hundreds of dollars.

“That’s what discourages people from looking for these records,” Mattson said. “This is what I do, but a normal person would be frustrated and give up.”

nothing to lose

When Illinois revised its Freedom of Information Act in 2010, it was heralded by government watchdog groups as a national model for how states should approach public access policy.

The law allows the state’s public access adviser to issue “binding” opinions and can require authorities to submit documents and follow public meeting rules. If officials do not comply, the attorney general can take them to court. Civil penalties can reach up to $5,000 per violation.

The agency is one of the few state agencies with such enforcement authority in disputes over transparency.

That power saved suburban Chicago resident Ellen Moriarty about $1,000 in legal fees after the Homer County Board of Supervisors refused to provide her with a copy of a settlement agreement.

After multiple attempts to mediate the issue, the Chief Deputy Attorney General issued a binding opinion in January calling on the trustees to immediately comply with the request.

“I can’t tell you how happy I am that the attorney general is going to see this issue through,” she said.

Moriarty also knows what happens if a binding opinion is not issued.

In 2022, she filed another complaint after the town failed to provide receipts for what it considered suspicious activity regarding attorney fees.

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The attorney general sided with Moriarty in the case, but issued a non-binding opinion. A year and a half later, she still hasn’t received any paperwork from the town, she said.

To enforce this opinion, Mr. Moriarity would have to file a lawsuit.

“I’m a homeowner in town and I’m just concerned about how the money is being spent,” she said. “You don’t have a dollar to lose just to see a record.”