Newsletter: Fighting for the Public’s Right to Government Records

The phrase “better late than never” can sometimes apply to the release of public records. But delays in disclosure can mean the public doesn’t have the information it needs when it’s most timely — and that’s why we’re always fighting for government transparency.

On Friday morning, one years-long fight we’ve been engaged in led to a major victory for accountability. The D.C. Circuit Court of Appeals ruled in our favor — in a successful appeal argued by Democracy Forward — overturning a lower court’s judgment that allowed federal agencies to withhold certain communications with Congress under a FOIA exemption typically reserved for agency employees.

  • Back in 2017, we sued for messages exchanged between Trump administration officials and members of Congress or staff about their efforts to repeal or weaken the Affordable Care Act.
  • HHS and OMB applied heavy redactions to all substantive exchanges, arguing that communications fell under the “consultant corollary,” a judge-made extension of the FOIA exemption protecting certain deliberations.

Today’s ruling makes clear that government agencies cannot use the “consultant corollary” to evade public disclosure of records, when the so-called consultants have their own interests in the outcome of decision-making.

  • “We’re pleased the D.C. Circuit agreed with our position and sided with transparency and free information, as the government’s withholdings in this case extended beyond the plain language of the statute and undermined the entire purpose of the law,” said our interim Executive Director Chioma Chukwu.
  • “This is a huge win for transparency, accountability, and democracy,” Democracy Forward President and CEO Skye Perryman said. “This ruling is precedent-setting and will help make sure government officials are not able to hide behind the ‘consultant corollary’ — a loophole that was being used to hide important public documents about health-care reform.”

Amended Lawsuit Against Florida Governor
Earlier this week, we amended our ongoing lawsuit against the office of Florida Gov. Ron DeSantis, adding three additional public records requests that have gone unanswered.

  • We sued DeSantis’ office in February over its pattern of unlawful delay in responding to public records requests, detailing 12 requests we’ve submitted to DeSantis’ office that, at the time of filing, had been pending for at least 11 months — some for as long as two or three years.

Our lawsuit now also seeks the release of:

  • Communications between former Senior Adviser for Public Safety Larry Keefe and a list of certain individuals and and entities, including companies selected to execute the next phase of the DeSantis administration’s migrant relocation program;
  • Communications related to former State Attorneys Monique Worrell and Andrew Warren as well as records reflecting guidance about the suspension of any Florida state attorneys; and 
  • A handwritten log of public records requests submitted by executive branch agencies.

The DeSantis administration’s “unjustified and unlawful delay” in responding to public records requests is only one example of the governor’s persistent efforts to avoid transparency, from the state’s exemption of his travel and security records from disclosure to his dubious claims of “executive privilege.”

Last week, a Florida appeals court heard oral arguments in J. Doe v. DeSantis, a case challenging DeSantis’ executive privilege claims.

  • The case arose after an anonymous Florida citizen submitted public records requests to DeSantis’ office in October 2022, seeking information related to statements the governor made about his process for appointing justices to the state Supreme Court.
  • We joined several public interest groups in filing an amicus brief last summer, which points out that the Florida constitution includes no such exemption and that no previous court has recognized it under Florida law. The brief urges the appeals court to reject the lower court’s ruling allowing DeSantis to withhold certain records. 

New Jersey Legislature Passes Public Records Act Overhaul
This week, the New Jersey legislature passed a bill that would overhaul the state’s Open Public Records Act, sparking criticism from pro-democracy groups and transparency advocates.

  • If signed into law, it would make it harder for public records requesters to be awarded attorneys fees in cases where the government is found to have withheld documents.
  • The bill would also allow the government to charge fees for some requests and permit courts to limit requests from certain groups or individuals.

The bill is one of many measures aimed at restricting the public’s access to government records that have recently been proposed or introduced in several states.

On the Records

Kristi Noem’s Home and Office Renovation Expenses
We received about 130 more pages of receipts from 2021 through 2023 related to South Dakota Gov. Kristi Noem’s office and home renovations. You can read the records here.

  • Previously, we obtained records that showed Noem’s office spent about $60,000 between January 2019 and September 2021 on decor and furnishings for her office and residence. 
  • The Argus Leader also found that more than $8,100 was spent on a sauna, which the governor’s office did not include in the documents it released to American Oversight.

Other Stories We’re Following

Election Denial and Threats to Democracy
  • At Justice Alito’s house, a ‘Stop the Steal’ symbol on display (New York Times)
  • Nearly 80 officials overseeing elections in 7 swing states doubt 2020 results (CBS News)
  • West Virginia voters must pick from GOP candidates who still dispute 2020 outcome (Associated Press)
  • Rudy Giuliani still hasn’t been served his Arizona indictment (Washington Post)
  • Gillespie County election costs balloon after switch to hand count (Texas Tribune)
Voting Rights
  • Arkansas Supreme Court upholds 2021 voting restrictions that state judge found unconstitutional (Associated Press)
  • Democratic filibuster of initiative petition bill exceeds 41 hours, sets new record (Missouri Independent)
  • Felon voting-rights group drops lawsuit after state plans to develop eligibility rules (Orlando Sentinel)
  • Republicans take aim at the ‘convenience’ of voting with sweeping election reform ballot measure (Arizona Mirror)
  • Michigan House panel weighs bills reforming election recounts (Michigan Advance)
  • US Supreme Court allows Louisiana to use congressional map with two majority-Black districts (Democracy Docket)
  • Wisconsin Republicans change their tune on ballot drop boxes ahead of state Supreme Court ruling (NBC News)
  • GOP tries to ‘correct the narrative’ on use of mailed ballots after years of conflicting messages (Associated Press)
  • ACLU signals effort to target disparate ‘notice and cure’ policies for flawed mail ballots (Votebeat)
In the States
  • DeSantis signs bill scrubbing ‘climate change’ from Florida law (Washington Post)
  • Iowa county jail’s fees helped fund cotton candy and laser tag for department, lawsuit says (Associated Press)
  • Georgia mandated training for police on stun gun use, but hasn’t funded it (Associated Press)
  • ‘A governor who doesn’t seem to have much interest in governing Arkansas’ (Politico)
  • 50-hour filibuster forces more negotiations on GOP-backed initiative petition changes (News from the States)
  • Under scrutiny from legislators, Texas university leaders attest to how they’re complying with the state’s DEI ban (Texas Tribune)
LGBTQ Rights
  • Missouri anti-LGBTQ advocate Vicky Hartzler appointed to US religious freedom agency (Kansas City Star)
  • Mississippi school district faces Title IX lawsuit after trans teen barred from attending band concert for wearing a dress (CNN)
  • Mississippi enacts transgender bathroom ban in public schools (NBC News)
  • New Ohio Senate resolution asks feds not to include sexual orientation, gender identity in Title IX (Ohio Capital Journal)
  • ‘MAGA antics’: Utah auditor chides transgender bathroom law as hoax reports mount to nearly 12K (Utah News Dispatch)
  • New Hampshire Senate passes bill to restrict transgender athletes in grades 5-12 (Associated Press)
Abortion and Reproductive Rights
  • Louisiana moves to make abortion pills ‘controlled dangerous substances’ (Washington Post)
  • Anti-abortion group is behind calls labeled a ‘scam’ by state election official (South Dakota Searchlight)
  • Abortion-rights measure validated for the ballot, but challenge expected (South Dakota Searchlight)
  • Arizona Supreme Court pushes back enforcement date for 1864 abortion ban (NBC News)
  • How a Denton divorce could imperil IVF access in Texas (Texas Tribune)
  • Amarillo City Council must vote on abortion travel ban following successful voter petition (Texas Tribune)
  • Abortion bans are repelling the nation’s future doctors (Washington Post)
  • Despite state bans, abortions nationwide are up, driven by telehealth (NPR)
  • Planned Parenthood is fighting Missouri Attorney General’s demands for trans patient records (St. Louis Public Radio)
  • Commission debates where to build Arkansas Capitol’s upcoming ‘monument to the unborn’ (News from the States)
Civil Rights
  • Business titans privately urged NYC mayor to use police on Columbia protesters, chats show (Washington Post)
  • North Carolina Senate panel approves controversial bill that targets protests, bans masks in public (NC Newsline)
  • Texas inmates are being ‘cooked to death’ in summer heat, lawsuit alleges (NPR)
  • Albuquerque is throwing out the belongings of homeless people, violating city policy (ProPublica)
Government Transparency and Public Records Law
  • Republicans spike bill to shield Louisiana government records from public (Louisiana Illuminator)
  • Georgia Supreme Court justices appear skeptical of Athens DA’s claim of open records exemption (Georgia Recorder)
  • Altered votes on public records bill draw criticism (New Jersey Monitor)
  • New Alabama law will require state agencies to respond to open records requests (Alabama Reflector)
Immigration
  • Migrant apprehension policies inside Mexico that lowered US border numbers called ‘not sustainable’ (Texas Public Radio)
  • Legality of Texas’ floating barrier on Rio Grande goes before full 5th Circuit appeals court (Houston Public Media)
  • US to speed up immigration cases of recent border crossers in new program (Reuters)
Trump Accountability
  • House Democrats launch probe of Trump’s dinner with oil executives (Washington Post)
  • After blaming his 2020 loss on mail balloting, Trump tries to make GOP voters believe it’s OK now (Associated Press)