Congress Elementary School Dist. No. 17 v. Warren, decided by the Arizona Court of Appeals last Thursday, delivers what strikes me as a well-deserved rebuke to the school district, coupled with an award of attorney’s fees to the citizens. Here’s a quick summary: Three citizens had submitted a bunch of requests to the school district in the 2008-09 and 2009-10 school years: Warren had filed 34, Regis had filed 11, and Rejon had filed 23. Some of the requests were under the state public records act, but others weren’t. “Defendants point out that eighteen of the purported seventy-four requests [the 68 I cite above, plus 6 from earlier years -EV] asked about board meetings or agendas, which the district is required to keep and make publicly available under [Arizona law]. Twenty-four requests were for student records by a parent, which are not ‘public’ records. Sixteen requests sought permission to speak or asked the school board to hold a meeting, form a committee, or respond to earlier requests and did not seek public records.”
The records requests cost the school district a good deal of time and therefore money to respond to — according to the district, “defendants’ prior public records requests required review of nearly 9,000 pages of documents and consumed more than 417 hours.” So the school district sued the three defendants, claiming that their requests were “a public nuisance” and harassment; the district asked an injunction barring the defendants from filing any more public records requests without permission of a court. (The district also sued a fourth defendant, Hoge, who hadn’t filed any requests since 2002-03, when she filed five; she was apparently sued only because she is defendant Warren’s daughter.)
Some such orders are sometimes issued against “vexatious litigants,” who file many frivolous lawsuits. But the problem with the analogy is that defendants’ requests weren’t frivolous: They generally asked only for what defendants had a legal right to ask for. As the court notes, “Although the district complains that past requests were burdensome, it does not assert that all were equally so, that it was unable to comply, or that any of the requests were frivolous or sought information not sanctioned by the legislature.” And, as the court points out, “the district has not been without adequate remedies. It could have denied prior requests and required that defendants bring enforcement actions, and it can deny future requests and raise its objections in the context of each such request…. Additionally, as defendants point out, the district may require that those making public records requests pay for copying certain types of documents; it may provide documents via a website; and it may seek more time in which to respond to an onerous records request.”
More broadly, the Arizona Legislature — like most (and perhaps all) state legislatures — has taken the view that members of the public have a legal right to get public records. It could have limited the number of requests each person files, or allowed government agencies to refuse to respond to requests that take more than some number of hours to fill; but it didn’t. The defendants are just citizens who had exercised their legal rights; and neither the school district nor a court is entitled to stop them for doing this.
Congratulations to the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, and its lawyers Clint Bolick, Carrie Ann Sitren, and Gustavo E. Schneide for winning the case; I know and very much respect Clint because of his work as cofounder of the Institute for Justice.