Ohio’s FOIA/public records law guards the privacy of workers comp claimants, but with an exception for journalists. Lawyers hire journalist to dredge names. Legal? [John O’Brien, Legal NewsLine/Forbes] Lawyers have sued for direct access to the lists [ABA Journal]
“In a cruel irony, the Obama administration has scuttled one of its own late-term policy priorities — criminal-justice reform — because it opposes affording ordinary people the same defense [FBI director James] Comey invoked for [Hillary] Clinton.” [James Copland and Rafael Mangual, TownHall] “Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat. …All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law — a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.” [Jacob Sullum, earlier on mens rea] In Ms. Clinton’s case, didn’t she at least have a clear intent to violate FOIA and similar public access laws? [Coyote]
So that you will respect us more, we now insist on being anonymous: the Virginia Senate has approved legislation exempting the names of police officers from disclosure under the state public records law. Sponsor Sen. John A. Cosgrove Jr. (R-Chesapeake), noting “that he knew many police officers and their families — said: ‘The culture is not one of respect for law enforcement anymore. It’s really, “How, how can we get these guys? What can we do?” … Police officers are much more in jeopardy.’ … Although other states have made moves to shield the identities of some officers, none would go as far as the proposal in Virginia.” A spokesman for the Fraternal Order of Police union, defending the bill, said that it “is not about trying to keep information from the public, to have secret police.” The immediate controversy that prompted the bill arose when the Virginian-Pilot newspaper in Hampton Roads filed a request for information on police employment, following up on tips that officers fired from one department would find work at another. [Washington Post]
Insta-update: Panel in Virginia House unanimously votes to kill the bill [WAMU, thanks commenter Matthew S.]
“My own anecdote about Justice Scalia is that he once hired me for my dream job because I wouldn’t stop arguing with him.” I set down a few recollections about the great man which are up now at The Daily Beast.
The dream job in question was to help with the editing of Regulation magazine, which in its early years was a project of the American Enterprise Institute (it’s at Cato now). I remember well the magazine’s publication of the classic debate between Antonin Scalia and Richard Epstein on the proper role of the courts in protecting economic liberty, itself based on an “Economic Liberties and the Constitution” conference sponsored by the Cato Institute. By that point Scalia had departed as editor of the magazine and was a judge on the D.C. Circuit, while Epstein continued to teach law at the University of Chicago, where he had been Scalia’s colleague. Scalia begins his piece thus:
I recall from the earliest days of my political awareness Dwight Eisenhower’s demonstrably successful slogan that he was “a conservative in economic affairs, but a liberal in human affairs.” I am sure he meant it to connote nothing more profound than that he represented the best of both Republican and Democratic tradition. But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare, aspirations, or freedoms.
Archives of Regulation magazine are here. During his editorship (which lasted until 1982), Scalia wrote many pieces both signed and unsigned, and his contributions to the unsigned front part of the magazine can often be identified once you know to look for his distinctive style (often there was one such piece per issue). I was at the magazine from its first 1981 through its last 1985 issue.
More: Earlier here. And I’ve adapted this (with some additional historical material) into a new Cato post, to which Nick Zaiac, Peter Van Doren, and Thomas Firey add a second post analyzing some of Scalia’s signed articles for the magazine during his tenure. I remember that his irreverent cover essay “The Freedom of Information Act Has No Clothes” was the one I most worried some senator would wave about to oppose his confirmation, but nothing of the sort happened. In it he wrote, of FOIA, “It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost- Benefit Analysis Ignored.”
- NYC Legal Aid lawyer “represented four defendants in a row who had been arrested for having a foot up on a subway seat” [Gothamist, including report of arrests for “manspreading”]
- Recommendations would expand federal role: “President Obama’s Task Force on 21st Century Policing” [Tim Lynch]
- Profile of Pat Nolan and momentum of criminal justice reform on the right [Marshall Project] Maryland Gov. Larry Hogan shows how Republicans are experimenting with criminal justice reform [Ovetta Wiggins, Washington Post]
- “Though we weren’t at any toll plazas, something was reading the E-ZPass tag in our car.” [Mariko Hirose, ACLU on New York monitoring of car transponders, presently for transport management purposes] DEA license plate tracking has been subject to mission creep [L.A. Times editorial via Amy Alkon, earlier]
- “Texas’s governor signs a bill that will end the ‘key man’ grand jury system, also known as the ‘pick-a-pal’ system.” [Houston Chronicle via @radleybalko, earlier]
- “There’s little dispute overincarceration is a problem demanding immediate redress. Except when it comes to sex.” [Scott Greenfield]
- Massachusetts SWAT teams retreat from position that they’re private corporations and needn’t comply with public records laws [Radley Balko, earlier]
- Judge Royce Lamberth: EPA “offensively unapologetic” about its failures to comply with FOIA requests [Josh Gerstein/Politico, Washington Post, Courthouse News]
- Cato President and CEO John Allison to Senators Ed Markey (D-Mass.), Barbara Boxer (D-Calif.), and Sheldon Whitehouse (D-R.I.): “Your letter of February 25, 2015 is an obvious attempt to chill research into and funding of public policy projects you don’t like. … you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.” [Patrick Michaels, Cato; earlier Allison rebuff to intimidating tactics by Sen. Dick Durbin (D-Ill.)]
- Smithfield Foods questions plaintiffs’ lawyers’ client recruitment methods in North Carolina farm-nuisance suit [Wilmington Star News]
- “Can Market Urbanism Revive U.S. Cities?” [Scott Beyer]
- Addressing sweetheart don’t-force-us-to-regulate consent decrees: “Sunshine for Regulatory Decrees and Settlements Act” would “require regulatory agencies to give public notice when they learn of a lawsuit that could eventually impose a federal rule” and “[give] outside parties an opportunity to intervene in the court case” [American Action Forum, U.S. Chamber in 2013]
- After nine-year battle, Interior’s Fish and Wildlife Service will let Native American pastor use sacred eagle feathers [WSJ via Becket Fund, Kristina Arriaga, Daily Caller, earlier on eagle feathers and the law here, here, etc.]
- “Yes, Gov. Whitman, states may choose which federal laws to implement” [Jonathan Adler]
- Illinois school district warns parents that in doing investigations under new cyber-bullying law it may require students to hand over their Facebook passwords [Vice Motherboard; earlier on “cyber-bullying”]
- Powerful, from Christina Hoff Sommers: how a shoddy NPR / Center for Public Integrity campus-rape study fueled legal fury of Department of Education’s Civil Rights Division [The Daily Beast; more, Bader] Nancy Gertner, retired federal judge and prominent progressive voice, on due process for college accused [American Prospect] Questions for New York Sen. Kirsten Gillibrand [KC Johnson, Minding the Campus]
- Smith College: “the word crazy was censored from the transcript, replaced with the term ‘ableist slur.'” [Kevin Cullen, Boston Globe]
- “Community College Courtesy of the Federal Taxpayer? No Thanks” [Neal McCluskey, Arnold Kling]
- “Families Of Two Newtown Victims Sue Town And School Board” [CBS Connecticut via Skenazy; recently on suits against gun businesses]
- More coverage of open records requests as way to go after ideologically disliked professors [Inside Higher Ed, our take last month]
- Washington Post piece went viral, but it’s dead wrong: “No, A Majority of US Public School Students are Not In Poverty” [Alex Tabarrok] Look, a not-yet-published paper that claims to confirm something many of us want dearly to believe about school finance. But will it have the staying power of Prof. Hanushek’s? [WaPo “WonkBlog”]
Should we cheer or boo when outspoken professors at state universities become the target of public records demands filed by antagonists seeking their emails and correspondence? As we had occasion to note during the Douglas Laycock controversy in May and June, there’s plenty of inconsistency on this question on both left and right. Some who cheer FOIA requests when aimed at scholars supportive of the environmental and labor movements, for example, later deplore them as harassment when the tables are turned, and vice versa.
If there’s any group you might expect to take a consistent position on these questions, it’s the American Association of University Professors (AAUP), its members being prospective targets of such requests and thus at the very center of the issue. So what’s their opinion?
In 2011, when politically liberal University of Wisconsin historian William Cronon was the target of a FOIA request by state Republicans, AAUP sent a strongly worded letter on its letterhead denouncing the move as a threat to academic freedom. The group likewise came to the defense of environmentalists targeted by conservatives.
This spring, an AAUP document on “Academic Freedom and Electronic Communications” (see pp. 12-14) was moderately critical of FOIA requests targeting University of Texas sociologist Mark Regnerus and his journal editor over a much-criticized study providing social conservatives with ammunition against changes in family law favorable toward gays. Since no one suspects the AAUP’s leadership of sympathy with the content of Regnerus’s work, this suggested that the skepticism toward FOIA might be founded on principle.
Not long afterward, however, when prominent (and politically unclassifiable) University of Virginia law professor Doug Laycock came under FOIA attack from gay rights activists who disapproved of his courtroom work on religious liberties, the AAUP was quoted in the press talking in a more vague and reticent way of “balance” and saying it weighs in on particular controversies rather than taking general stands.
Now turn to the University of Kansas, where Art Hall, executive director of the Center for Applied Economics at Kansas University’s business school is under FOIA attack, accused of being too close to the free-market economics favored by donors from the Koch family of Wichita (who have also given much support over the years to the Cato Institute, which publishes this site). So what do you know? The state AAUP chapter is actually leading the charge against Hall, its members have raised funds to support the public records demand, and its state president vocally insists that there’s no danger whatsoever to academic freedom in allowing, as a group once put it, “fleeting, often casual e-mail exchanges among scholars to be opened to inspection by groups bent on political attack.”
You might start to wonder whether the AAUP is going to hold to any consistent position at all beyond the convenience of the moment. (& George Leef, Phi Beta Cons; reprinted at Minding the Campus) Update: Judge halts process to review proposed email release [Will Creeley, FIRE]
The nonprofit Citizens Awareness Foundation 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 obtained by the Florida Center for Investigative Reporting 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 O’Boyle law firm has filed more than 140 requests on behalf of the foundation and a related group this year, including barrages of requests against engineers and road builders. The general counsel of the Florida Engineering Federation wrote in May that it was “debatable whether they are truly seeking records or just attempting to obtain legal fees for a violation,” a concern shared elsewhere:
“It’s a sad game of ‘gotcha,’ the only purpose of which is to generate an attorney fee claim rather than obtain any actual public records,” said Bob Burleson, president of the Florida Transportation Builders’ Association.
A former executive director of the foundation has resigned, citing ethical concerns. Among numerous small government contractors targeted by the demands are charities and social service providers; an environmental remediation firm says the law firm included a nondisclosure demand that would prevent it from comparing notes with others to receive the fee demands. Ten years ago we reported on a practice in California in which bounty-hunting requesters aimed public records requests at school districts in early summer, then followed with legal fee requests based on the districts’ having missed the short deadline for responding.