In last week’s blog, I reported on the increase in records requests and the reasons the respondents of our survey see for this increase.* Rising interest in government transparency and growing awareness of citizen’s rights are named as important drivers for growth in received requests. But interestingly enough, 28 percent of the respondents attribute completely different drivers for that growth.
When using the open answer field “other”, some respondents mentioned commercial and personal gain as a reason they issue open records requests. They see contractors using public records acts to find out how other parties scored in the RFP process or use requests to collect competitor information.
Several participants attribute the increase in requests to businesses trying to farm municipalities for information that will help them grow their client base. Also named by one respondent, are property related searches that they attribute to the upturn in the real estate environment.
One respondent stated that open records requests are now seen as a “profit center by many lawyers, and as an additional discovery tool for active litigation."
As said, most of our clients have reported their records requests have more than tripled. Unfortunately, along with the number of requests, they are also seeing an increase in the number of lawsuits related to the request process being filed as well as.
Currently, there have been over 880 FOIA related lawsuits filed at the Federal level in 2019. One client recently stated that it seems the more transparent they tried to be the more requests they receive.
Unfortunately, cities and other local entities are reportedly receiving more and more complaint as this example from the Rhode Island attorney general’s office clearly shows.
Last November, the number of statewide complaints alleging Access to Public Records Act and Open Meetings Act violations has already reached 150 — up from 113 last year and 55 in 2003. The previous record was the 148 complaints filed in 2014.
Although not overall, our respondents also see an increase in complaints and litigation.
Interestingly enough, the rise in the number of complaints or litigation related to open records requests, is mainly seen with organizations that receive relatively little requests. Of the organizations that receive less than hundred requests a year, 58 percent of the respondents indicate they see an increase in the number of complaints. With organizations that receive more requests (>100 a year) this is 42 percent.
When asked about the reasons of the complaints, inadequateness and incompleteness of the responses are mostly named.
Other reasons named are mostly related to requesters not being happy with the outcome. They object to exemptions, confidentiality or seek outcomes that are more “favorable”. “Individuals believe that everything should be released despite our ability to redact certain information”.
If you want to receive all stats, you can follow this link to download an info-graphic with all survey results. For a more in depth overview of the development of the FOIA, you can read this whitepaper.
Or contact me to schedule a demo and I will show you how to respond to public disclosure requests in an efficient and timely manner In the next blog, we will discuss the difference in complexity of managing public disclosure requests.
* The outcome of this survey is provided for informational purposes only, and should not be construed as (legal) advice on any subject matter. ZyLAB expressly disclaims all liability in respect to actions taken or not taken based on any or all the outcomes of this survey.
 Boston Globe: “R.I. is getting more open government complaints than ever. Is that good or bad news?” By Edward Fitzpatrick Globe Staff, November 14, 2019.