IJ Fights to Bring Government Data to Light
In the course of IJ’s work, we often need to get information from the government. That is particularly true of our strategic research work, where we collect huge quantities of data to present the most comprehensive information about, for instance, civil forfeiture or occupational licensing. And there are also times when we seek information about legislation—for example, to see if politically connected businesses are working with lawmakers to shut out their competitors.
You will not be surprised to learn that the government is less than delighted to receive our requests. Indeed, sometimes, it will refuse to provide things that we are entitled to under federal or state law, or it will produce documents with nearly all the information blacked out. But Americans are entitled to know what their government is doing. And although IJ rarely sets out to litigate under state or federal freedom of information laws, along the way, we often establish important precedent that makes it easier for IJ and others to find out what their officials are up to.
This spring, we finally ended our lawsuit against the IRS when it turned over a forfeiture database we originally requested in 2015. At first, we secured only a partial victory in the trial court and had to go up on appeal. The IRS had claimed that its information was not a “database,” and since we asked for a “database,” it did not need to turn the information over. It also redacted (blacked out) 99% of the information that it did provide. On appeal, the U.S. Court of Appeals for the D.C. Circuit criticized the IRS for quibbling over technicalities and also held that it could not just redact huge categories of information.
The ruling sets important precedent for anyone who is trying to get large quantities of digital information, particularly when it has some relationship to law enforcement. It also got IJ what we had asked for: Since losing on appeal, the IRS has agreed to produce all the information we originally sought, and we have just begun analyzing the data.
Another recent victory comes out of Louisville, Kentucky. Years ago, IJ teamed up with Louisville food truck owners to challenge a law that prohibited them from operating near restaurants. The city changed the law, agreeing that food trucks could operate and that they would not be treated differently from restaurants. But as soon as the ink was dry on the federal consent decree, the city proposed an ordinance that would in fact restrict food trucks and treat them differently.
Curious as to how this proposal came about, we asked, in 2018, for the emails from the city councilmembers under the state open records act. They refused. Once again we were forced to sue, and we won. The court held that councilmembers didn’t just violate the state’s open records law—they violated it willfully and will have to pay statutory penalties for their misdeeds. We hope to finally get those emails soon.
When we sent in our records requests, we didn’t anticipate spending years in litigation just to get basic information about federal and municipal government activity. We’re glad we did, though. Not only do we have important information we can use to educate the public, but we also set precedent about the importance of government transparency and the impermissibility of using the law to hide public documents.
Dana Berliner is IJ’s senior vice president and litigation director.
In both of these cases, IJ was represented by outside lawyers, both members of IJ’s Human Action Network and attorneys at Latham & Watkins (IRS) and Dentons (Kentucky).
Also in this issue
Subscribe to get Liberty & Law magazine direct to your mailbox!
Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.