The public is paying the price for local government secrecy

When journalists must sue for access to public records after they’re wrongfully withheld by state and local officials, it’s a raw deal for taxpayers. Not only are they denied information that is public under state law, but their tax money foots the legal bills.

Case in point: In November 2023, the residents of San Jose, California, were forced to finance a $500,000 payment to the San José Spotlight, a nonprofit newsroom, after it prevailed in its public records lawsuit against the city and former Mayor Sam Liccardo. A Santa Clara County judge found that Liccardo — who is now campaigning for a U.S. congressional seat — used private emails and text messages for city business in order to shield the communications from disclosure.

The judge ordered the city to release hundreds of pages of improperly withheld records and pay the outlet’s attorneys fees. But, Spotlight co-founder and CEO Ramona Giwargis said, it’s community members, not the public officials, who are paying the price.

“I heard from a lot of residents later saying that this is unfair. Taxpayers are on the hook now for half a million dollars because city officials didn’t follow the law,” Giwargis told the U.S. Press Freedom Tracker.

In the past 12 months alone, more than $1.6 million in attorneys fees — from coffers filled by taxpayers — was awarded to journalists and news outlets suing state and local officials for public records access, according to our review of these lawsuits.

On March 1, 2023, residents of Worcester, Massachusetts, bankrolled the $180,000 payment to the Worcester Telegram & Gazette to cover attorneys fees, following a county Superior Court judge’s ruling that the city had illegally withheld records concerning police misconduct investigations. Residents also had to foot the $5,000 fine for punitive damages — the maximum allowed by state law — that the city was ordered to pay to the state’s new Public Records Assistance Fund.

Almost exactly one year later, on Feb. 29, 2024, residents of Las Vegas, Nevada, underwrote the Las Vegas Metropolitan Police Department's $620,000 in payments to the Las Vegas Review-Journal, following two separate rulings from the Nevada Supreme Court that the department had violated the state public records law. An attorney for the Review-Journal told the newspaper that such reimbursements for attorneys fees are vital after taking the government to court, but lamented the impact it has on the public.

“It is a shame that governmental entities so often spend public money to fight against transparency when in the end it is taxpayers who are forced to foot the bill,” Review-Journal Chief Legal Officer Ben Lipman said.

For each of these awards, journalists or news organizations first sued for access to public records under the state’s Freedom of Information, or Sunshine, law. A court then determined that officials had wrongfully withheld public records. The parties then reached a settlement or a judge awarded attorneys fees and costs.

David Cuillier, director of the Joseph L. Brechner Freedom of Information Project, has seen firsthand how transparency is dwindling at the state level. He wrote a 2019 report on public records access in the United States using information gathered by MuckRock, a nonprofit news site that files and shares public records requests at the state and federal levels.

He told the Tracker that updated research showed the percentage of state and local records requests fulfilled by government agencies dropped by more than half over a 12-year period: from 63% in 2010 to 31% in 2022. The numbers varied widely between states, he said, with fulfillment rates ranging from 67% in Washington to just 10% in Alabama.

“The planets are aligning for a more secretive universe, because as the government gets more adept at hiding things, there are fewer people pushing back,” Cuillier said. “With newsrooms shrinking and civil society organizations going out of business, these forces that we had to protect democracy and access to information are disappearing.”

Cuillier’s research is considered the most up-to-date, but even he acknowledges one of the greatest challenges transparency advocates face is a lack of data. No comprehensive database exists for public records requests filed or appealed at the state level. What is considered a public record, the exemptions that exist and the timeline agencies must adhere to when responding to requests vary by state, make comparisons challenging, Cuillier said.

But he found one thing remains consistent: The freedom of information process is underfunded at all levels of government.

“It’s not a priority, which makes sense,” Cuillier said. “Why would government officials put a lot of money into something that embarrasses them or exposes them to potential embarrassment?”

A partial explanation for declining fulfillment rates by government agencies may be an increase in the number and breadth of requests, MuckRock co-founder and CEO Michael Morisy told the Tracker.

“Requesters now are just used to getting a lot of information instantly thanks to Google and the internet. I think people are filing larger requests for larger amounts of information and agencies are not very well equipped to review and produce that,” Morisy said. “I have lots of sympathy for individual agency staffers who are not given the tools to do their job, but not for the overall problem.”

In San Jose, where the nonprofit Spotlight was awarded $500,000, a director in the city manager’s office told the Tracker via email that public records requests create a substantial workload for city staff, who must process them on top of other work.

Staff must manually search for, collect and review records from across different systems, as well as redact and/or withhold information based on California government statutes, said Sarah Zárate, director of the San Jose City Manager’s Office of Administration, Policy, and Intergovernmental Relations.

Zárate noted that staff fielded nearly 5,400 records requests during the 2022-2023 fiscal year, compared to around 4,250 in 2019, according to city records.

To address the rising number of requests, at least three states — Connecticut, Maryland and Utah — have passed laws to allow agencies to deny what they characterize as excessive and abusive requests or to penalize those who submit them. Similar litigation has been proposed in eight other states — Arizona, Colorado, Iowa, New Hampshire, New Jersey, Pennsylvania, Texas and Washington.

In Iowa, the state’s Public Information Board considered a bill in the fall of 2023 that would allow agencies to disregard requests for up to a year from anyone determined by the board to be “vexatious.” Laura Belin, who reports for and publishes the Iowa blog Bleeding Heartland, raised concerns at the time that government officials could ignore her requests by simply having her declared vexatious.

Her concerns weren’t without basis: Belin filed a lawsuit, alongside the Iowa Capital Dispatch and Iowa Freedom of Information Council, after Gov. Kim Reynolds’ office ignored nearly a dozen requests filed over the course of a year. Reynolds’ office ultimately agreed to a settlement in June 2023 that included a payment of $135,000 to cover the petitioners’ legal fees. (Yes, taxpayers once again footed the bill.)

The New Hampshire House of Representatives took a different tack, passing a bill in February 2024 that imposes a $25-per-hour fee for record productions that officials estimate will take longer than 10 hours. In an editorial, the New Hampshire Union Leader newspaper urged lawmakers to reject the bill — which is now being reconsidered and faces a second vote — raising concerns that officials could overestimate the hours in order to discourage requests.

The resulting overestimated fulfillment fees are a means to dissuade requesters. “High fees are a way to reduce requests without denying them,” MuckRock’s Morisy said.

In Connecticut, journalists and other records requesters can appeal denials, redactions and high cost estimates to a designated commission with the authority to make and enforce rulings. But for those in much of the country, the only place to fight for access is in the courts.

While the potential legal expenses can deter journalists or news outlets, even the threat of a lawsuit can sometimes be enough to spur a government agency into releasing records that are being withheld. Victoria Baranetsky, general counsel for The Center for Investigative Reporting, told the Tracker that she has repeatedly found clients receive “first-class service” once they involve the courts.

“We have seen countless cases where records requests go completely unanswered for countless months until we file a lawsuit,” Baranetsky said. “It takes a lot of time and persistence to go through a lawsuit. It’s still worth the fight, very often, but it’s a constant fight.”

To lessen the financial burden of a lawsuit, some states have implemented fee-shifting, or the awarding of attorneys fees and costs to the prevailing party. According to Cuillier’s research, states with mandated fee-shifting have better compliance rates with public records requests than those where it is optional or nonexistent.

But the solutions offered by fee-shifting still ultimately burden taxpayers with the cost, Spotlight’s Giwargis told the Tracker, while having little impact on officials’ behavior.

“Even though they keep getting sued, it doesn’t stop or change anything. For the city, it’s just a blip on the radar,” Giwargis said. “What does it take? If not legal action, then what remedies do we have to hold them accountable?”

For Giwargis, the next remedy was working with a state senator to draft a bill proposed in January 2024 to improve transparency and provide structure for complying with the California Public Records Act.

“We need to put more teeth into these policies so that there is some kind of repercussion that actually makes a difference,” Giwargis said.