“Just because a cat has kittens in the oven doesn’t make them biscuits.”
It’s a quote attributed to Malcolm X, reprised by Kelsey Grammer in an episode of the number one sitcom Frasier, but actually has its origins in New England. It means, “Just because you were born here, it doesn’t make you one of us.”
It could just as easily be updated to apply to State Superintendent of Education John White’s lame explanation of a settlement of a lawsuit by the Louisiana Department of Education (LDOE) against citizens James Finney, a technical college math instructor and Mike Deshotels, a former educator and past executive director of the Louisiana Association of Educators.
White was quoted in the Baton Rouge Advocate as saying the ruling by 19th Judicial District Judge Janice Clark “merely resolved what had been a conflict between two laws” because federal law instructed the department not to release data that could be used to personally identify a child while state law mandated the disclosure of all public records.
Department legal counsel Joan Hunt said in a Wednesday email to members of the state Board of Elementary and Secondary Education (BESE) that a declaratory judgment was sought to resolve “tension” between free disclosure of public records and protection of student information according to federal law.
Neither Deshotels nor Finney ever requested information that would identify a single student.
And John White knew that. Period.
Since becoming Superintendent of Education in January 2012, White has made a career of stalling on compliance with public records requests if not denying them outright.
LouisianaVoice was once forced to sue white over public records and won an award of $2800 ($100 per day for each day delayed per request), plus court costs. The only downside of that judgment was that White was not held personally liable, meaning the $2800 and court costs were picked up by Louisiana taxpayers.
But in suing two Louisiana activist citizens (who admittedly had been something of a nuisance to White with their monitoring of the department), White reached a new low in attempting to avoid being held accountable for the manner in which he runs the department.
His lawsuit, in terms of disgraceful acts, ranks right down there with those judges in Monroe who sued the Ouachita Citizen, a newspaper in West Monroe. The newspaper’s sin? It made public records requests of the court.
Do we detect a disturbing trend here? You bet we do. The Louisiana Department of Education, district courts, and other public bodies have virtually unlimited financial resources at their disposal and most, like the Department of Education, have in-house legal counsel like Joan Hunt. They can initiate lengthy—and costly—legal action against any citizen and people like John White and district judges don’t have to pay a penny of the costs of litigation, courtesy of Louisiana taxpayers.
Private citizens do not enjoy that same advantage. It’s not a level playing field. And even if the public body does not sue, it can drag its heels on compliance, forcing the citizen making the request to either give up or enter into expensive legal action with no guarantee the court will uphold the public’s right to know.
At last Monday’s hearing, Judge Clark let it be known that her patience was wearing thin with public officials who attempt to hide behind legal maneuvers in an attempt to avoid compliance with the law.
The LDOE attorney opened by saying the department had “informal guidance” from the federal government that “we do not have to comply with FOIA (Freedom of Information Act) requests.”
Perhaps sensing the mood of the court, the state withdrew its demands for attorney fees from Deshotels and Finney, adding that “only two people are interested in the data.”
Judge Clark said it was an “improper purpose” to deny information to the public as a retaliatory action.
“Counsel should meet and work this out,” she said. “The public (meaning the court) takes a dim view of public officials using public resources to delay compliance with public records laws.”
Deshotels attorneys J. Arthur Smith and Chris Shows met outside chambers for more than two hours with LDOE attorneys but were unable to arrive at an agreement on the release of the requested documents.
When informed of the continued impasse, Judge Clark, visibly angry, said, “I am issuing a subpoena for John White to be in court at 9:30 tomorrow (Wednesday) morning for cross examination.”
When White got word of that, it was something akin to Moses coming down from the mountain with the 10 Commandments. Suddenly minds came together and miraculously, there was accord and LDOE agreed to three stipulations which settled the suit filed in April by White and the department against Deshotels and Finney. http://www.theadvocate.com/baton_rouge/news/education/article_536e2fac-b5e2-575c-87f6-1a991bf0f455.html?sr_source=lift_amplify
The first stipulation mandates that the suppression of data in the economically disadvantaged and English language learner or English proficiency sub-groups of the Education Department’s multi-stat reports is not in compliance with the Louisiana Public Records Act.
The department agreed not to suppress student enrollment data in responding to requests made under the act in the second stipulation.
The final stipulation says requested data will be made available to the public dating back to 2006.
Deshotels said the declaratory judgment filed against him and Finney was never about clarifying the legal issues relative to certain public records and student privacy as claimed by White.
Instead, he said White’s action was “purely an attempt to discourage citizens from seeking to independently research the claims and conclusions made by White and his staff.” “If citizens are forced to face legal challenges and high legal fees for seeking public records, the Department can continue to manipulate and spin what should be factual information about the operation of our schools.”
Sadly, Judge Clark’s ruling will do little to expedite timely compliance with future public records requests to other state agencies.
Even as this is being written, former commissioner of administration Kristy Nichols has already cost the state more than the original judgment against her in another lawsuit by LouisianaVoice.
LouisianaVoice received a pittance in a lawsuit in which the Division of Administration (DOA) under Nichols had dragged its heels for more than three months on several separate public records requests.
LouisianaVoice calculated DOA owed some $40,000 in penalties for non-compliance but was awarded less than $2,000, plus costs and legal fees, by the court. Even then Nichols appealed the decision. And although the court held Nichols personally liable, meaning she alone was responsible for the penalty, the state is picking up the tab for that appeal, which partially upheld the district court ruling.
Nichols, still not satisfied, and still not paying a cent of the legal costs (though LouisianaVoice is paying its legal costs, applied for writs to the Louisiana Supreme Court.
As of this date, the state has spent far, far more than the penalty imposed on it in trying to avoid paying the penalty and LouisianaVoice has spent more than it will ever be awarded, provided the Supreme Court even upholds the lower court.
And while the obvious question is: Is throwing good money after bad a wise way to spend state funds? An original penalty of less than $2000 has now cost the state several times that in defense costs and the tab is still running.
And John White’s obfuscating dribble notwithstanding, that’s what Louisiana citizens are faced with in trying to hold its state government accountable.