Daily Archives: September 10, 2013

Zack Kopplin Files Public Records Lawsuit Against John White

This just in to the newsroom…



September 10, 2013

Re: Zachary S. (“Zack”) Kopplin, Citizen versus John White, in his Official Capacity as Superintendent of the Department of Education, a Department of the Executive Branch of the State of Louisiana

Baton Rouge, Louisiana—On Monday, September 9, 2013, education activist Zack Kopplin filed suit against Louisiana Superintendent John White and the Department of Education in order to compel White to release a series of public records concerning the school voucher program, teacher evaluation methodology, the Louisiana Science Education Act, the influence of lobbyists on policymaking, and policies related to the retention and destruction of public records. The suit is designed—at long last—to ferret out what the process was leading to Jindal’s sweeping education changes—including whether there was a lack of record making or so-called “off campus” records retention, which is a particularly non-transparent practice of some government officials to hire consultants or third party firms to develop and store policy in order to shield policy making from the public.

In late May and early June, Kopplin submitted a number of requests pertaining to education policy, the overwhelming majority of which were either ignored or improperly answered. Kopplin alleges that, during the last several months, Superintendent White and officials at the Louisiana Department of Education have attempted to conceal, delay, and deny the production of public records.

About the Parties

The parties to the proceeding are a Louisiana citizen and the State of Louisiana, through its executive Department of Education. The Department is the highest unit of executive organization for education policy in the state, other than the office of the Governor. The Department is a line-agency-level unit responsible for education policy and is, or should be, the custodian of records related to this suit.

Mr. Zachary Kopplin has been engaged in a citizen campaign to access public records regarding two significant pieces of legislation in Louisiana, which are key “education reform” policies of Louisiana Governor Bobby Jindal: the Louisiana Science Education Act and the Student Scholarships for Educational Excellence Program (better known as the “school voucher program”).

At long last . . . .

The suit is about citizen access to public records and the information surrounding the formulation of controversial government education policy. In addition, if the suit lends itself to the issue, Zack intends to challenge the Governor’s appointees’ use of the recently enacted “deliberative process” privilege—a new privilege in Louisiana ironically borne from claims of opening up additional gubernatorial transparency. The policy does anything but that according to experts and legislators feeling the pangs “fool me once
. . . .”

Zack contends the actions of the Governor and his appointees are part of a custom, policy, and practice to deny civil rights to people similarly situated to Zack, specifically to deny persons seeking public information (in the pursuit of criticism of government policy, First Amendment rights, and the right to petition government for redress of grievances)—and such practices and customs were demonstrably apparent and had occurred in other cases in that: (i) a general pattern of unlawful refusals to grant public records requests, improperly handle them, or invoke the “deliberative process” privilege exists, (ii) a pattern of misconduct toward Zack exists, and (iii) the denials and patterns of misconduct commenced because of protected speech flowing from, and arising out of, Zack’s repeated criticism of the policies at issue in the Public Records Requests.

Definitely the Governor’s process . . . .

In 2009, Louisiana Governor Bobby Jindal publicly asked members of the Louisiana legislature to pass Act 495, a law amending La.R.S. 44:5 in order to carve out specific exemptions for public records disclosures in the Governor’s office. Although Governor Jindal, at the time, claimed the amended law would result in greater transparency, throughout the last four years, he and members of his administration have relied on a tortuous interpretation of the law in an unprecedented attempt at preventing citizens and members of the media from accessing and reviewing a significant number of statutorily defined public records.

In so doing, Governor Jindal has blockaded the public’s ability to truthfully and accurately evaluate policy and fiscal determinations on a wide range of issues, including, but not limited to, health care, hospital privatization, Medicaid spending, higher education, public education, school vouchers, taxation, prison privatization, and coastal restoration efforts. This beckons all to consider Justice Brandeis’ famous admonition: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

In the Capital City Press, LLC v. LSU case, on April 25, 2013, the Nineteenth Judicial District Court ruled that records of the selection of the LSU president were public records, were not exempt, and were subject to a grant of mandamus—ordering production of certain records as requested.

Setting aside the merits of the legislation—which are not at issue for purposes of this lawsuit—Zack alleges the office of the Governor and the Louisiana Department of Education have maintained a stance tending away from transparency and cooperation when it comes to the public’s right to gain records. Importantly, Zack maintains there seemingly is also a thicker wall when it comes to learning how decisions are made—or the process to create certain policies. Zack and his associates believe the public is better served when the process is illuminated, as well as the records provided, because in the public domain the process by which decisions are made can be as important as the final decision. Along the decision continuum, many important public policy debates may be central to discussions like academic policy.

Indeed, in an LSU Law Review comment, titled, “From Sunshine to Moonshine: How the Louisiana Legislature Hid the Governor’s Records in the Name of Transparency,” author Kevin Blanchard provides the basis for much of the backdrop for the deliberative process and methodically uncovers the ways in which Governor Jindal and his legislative allies colluded to undermine the state’s public records laws.

Zack thinks the Governor’s (or his appointees’) failures to provide requested public documents, or failure to sufficiently, properly, or unconditionally respond, or provide proper objections, renders the State liable. Relatedly, to the extent improper objections or claims of privilege, e.g., the “deliberative process,” were used explicitly or internally, Zack intends to use this action to have those matters declared violative of statutory and constitutional law of the State of Louisiana, as applied and facially, because—

  • Deliberative process, as created by Louisiana statute, has been used (as applied) in a manner violating the fundamental right to public records guaranteed by Article XII of the Louisiana State Constitution;
  • Deliberative process, as created by statute, is facially unconstitutional and violates the fundamental right to records guaranteed by Article XII of the Louisiana State Constitution; and/or
  • Deliberative process, even as created by statute, is being used in a manner beyond the scope of its limited authorization by statute, and is therefore, as applied by the Department of Education, unconstitutional and violates the fundamental right to records guaranteed by Article XII of the Louisiana State Constitution.

Technical Notes

Some technical points about this suit:

  • In Louisiana, any person of age can make a request; one does not have to be a Louisiana citizen.
  • <li>The law is construed liberally in favor of the requestor, so that doubts must be resolved in favor of the requestor.  Any claims of privilege or exemption must be proved conclusively by the custodian.</li>
    <li>There is a long line of decisions holding that record keeping cannot be delegated away to circumvent the public records laws.</li>
    <li>In Louisiana, public records information is a fundamental right, not merely a statutory one.  See generally La.Const. art. XII, § 3 provides, in part, as follows: “Right to Direct Participation.  No person shall be denied the right to … examine public documents, except in cases established by law.”  </li>
    <li>This suit claims the Department of Education is engaged in a pattern of misconduct relating to the dissemination of public information.  See La.R.S. 44:31-32. </li>
    <li>Citizens aggrieved can file special, or extraordinary relief, proceedings in Louisiana courts.  Courts of record within their respective jurisdictions may declare rights, status, and other legal relations.  La.Code Civ.P. art. 1871.</li></ul>

    Thoughts and Comments

    Throughout the last three years, Kopplin’s research and advocacy have generated national and international attention, and his ongoing campaign to repeal the Louisiana Science Education Act has attracted endorsements from nearly eighty Nobel laureates and the world’s leading science organizations.

    “In May, Zack asked the Department of Education for e-mail records about his repeal campaign against the LSEA. A few weeks later, they responded to him. They sent him one e-mail exchange about the Louisiana Science Act, between two of their staff members, and twenty pages of news alerts,” said Greg Rozas, Kopplin’s lead attorney. “The repeal campaign was making international news. Three years in a row, Superintendent John White and Governor Bobby Jindal sent staff members to testify about these bills in front of the Senate Education Committee. Yet, if the response is credited as true, it means the Department of Education only had one e-mail discussion responsive to his request.”

    In addition to Rozas, Kopplin is also represented by Chris Roy Sr., the vice chairman of the Louisiana State Constitutional Convention, and Allen Smith, both of whom are civil rights attorneys based in Alexandria.

    “In Louisiana, a citizen’s ability to access public records is considered a fundamental right,” said Chris Roy Sr. “From almost the second after he took the oath of office, Governor Jindal and officials in his administration have tried to re-interpret well-established law in order to stifle our fundamental right to be informed. As an attorney and as someone who was fortunate enough to help craft our State Constitution, once I was asked, I felt personally and professionally obligated to help represent Mr. Kopplin. This is larger than education policy. It’s about the integrity and durability of our public records laws and ensuring that there are meaningful ways to hold our most powerful officials accountable.”

    Last year, in response to a similar public records request submitted by the Associated Press, Superintendent White’s office asserted that the requested records were protected by the “deliberative process privilege.” White’s denial of the request and his attempt at invoking the “deliberative process privilege” made national news, and subsequently, he claimed he would release the records after the school year began. “To me, the manner of response distorts settled law and the purpose and intention of our State Constitution,” said Rozas. “Believe it or not, Louisiana has always enjoyed robust public records laws. A few years ago, Governor Jindal pushed through and enacted an extremely vague statute on ‘deliberative process.’ He told legislators it would increase government transparency. Instead, they’ve repeatedly attempted to convince us that this ‘privilege’ is actually a blanket exemption, covering practically everything that Governor Jindal, anyone on his executive staff, and anyone under the direction of his executive staff have ever read on any and every policy issue. It’s not only absurd; it’s shameful and undemocratic. They’re not basing their argument in Louisiana law; instead, they’ve constructed this ‘privilege’ around the deteriorating scaffolding of a single paragraph presented as dicta in a relatively obscure thirty-three year old D.C. Circuit case involving the relationship between FOIA and the Department of Energy.”

    Kopplin’s petition is expansive and includes more than 80 pages of exhibits. “It’s one of the most extensive and meticulously researched pleadings on a public records dispute that I’ve read,” said Chris Roy Sr. “Even if a court never needs to get to the Constitutional merits, this case provides a blueprint for others, and it shows how a straightforward law can be distorted and misapplied.”

    Added Roy, “I have often thought debate is the lifeblood of democracy and proper compromise its soul; but deceit is its true threat, that the other two in their proper spheres routinely countervail.”

    Allen Smith III, attorney for Kopplin, said his “involvement is based on his commitment to public interest suits and the ‘David and Goliath’ aspect of the case.” Smith also said he enjoys any chance he gets to work with his family and a legal mentor, referring to Chris Roy Sr. About Kopplin, Smith said, “You have to respect a young man who wants to take on ‘city hall’ based on principles. It is what people try to instill in young persons all the time—so, I felt like I should do my part to promote good trouble making,” Smith said jokingly referring to Kopplin’s grant.

    “Pretty early on, I knew this would be a ‘war of attrition,’” said Kopplin. “The hope was that if they didn’t legitimately respond to my questions, then I’d eventually stop asking them. But I never thought I’d need to file a lawsuit, and I never imagined the Department of Education would attempt to conceal so much. I had tried working with them. I even drove in from Houston to meet personally with their staff.”

    In February, Kopplin won the first-ever national “Troublemaker of the Year” award in recognition of his efforts on behalf of science education in Louisiana. The award also included a $10,000 prize to be used to make “the good kind” of trouble. “It’s the single biggest paycheck I’ve ever received in my life, and I had intended to use most of it to build a website and purchase and publish public records on science education policies across the country,” said Kopplin. “Instead, I’m being forced to sue my own home state. I’d prefer to spend my time and energy in the classroom and not the courtroom, but the records I am requesting are absolutely crucial to understanding issues and policies that affect the quality and the competitiveness of our entire state elementary and secondary education system. I want to thank Semyon Dukach and the Troublemaker Award for making this case possible. The Troublemaker Award is meant to help students cause positive ‘trouble’ to support the public good. I can think of no better way to do this than to launch this suit for transparency and public access to information.”

    Tropical Update: Gabrielle Comes Back Humberto Hesitates (UPDATED)

    As you know, if Tropical Storm Humberto, which is out in the eastern Atlantic at the moment, turns into a hurricane AFTER noon tomorrow, September 11th, it will break the record for latest first hurricane in the Atlantic hurricane season for the period of good records. Everyone was expecting Humberto to ramp up hurricane intensity today, but strengthening of the storm has stalled a bit, and Humberto is not as organized as expected.

    Officially, the National Weather Service predicts that Humberto will be a hurricane later today. But it is possible that this won’t happen. We will be watching closely.

    Meanwhile, Gabrielle, which was a tropical storm that got downgraded to blobby thing, is back as a tropical storm and is menacing Bermuda. Gabrielle is showing unexpected intensity and is larger than expected, and is and will be a very powerful tropical storm, but is expected to stay at sea.

    By the way, Humberto is moving northwest but is expected to turn west before falling apart and returning to tropical storm status. Then, it will be a blobby thing that is no longer a named tropical storm out in the middle of the Atlantic. I’m not sure what forecasters thing, but I suppose it is possible that exHumberto could return as Humberto 2.0, like Gabrielle did. This seems to have happened a few times this season. I wonder if we are going to see a new record: Number of times a storm gets unnamed then returns.

    UPDATE: Humberto is a Hurricane, and apparently became one over night. Humberto was upgraded in this morning’s 5:00 AM update. In order for Humberto to have broken the record of being the latest first hurricane in the Atlantic over the period of records, this upgrading had to happen after noon time today. So, no record was broken this year, but just barely!

    Major Computing Entities as Public Goods

    What if you went to drive to work one day and the highway on ramp was closed, and a big sign across it said “Highway is closed. Sorry for the inconvenience.”

    Well, you would find your way to a different highway entrance. But say that one was closed as well.Then, you check around and find out that all the highways in your state are closed because the state decided to close them. No more highways for you.

    Or, one day you go to check the mail and there is a single post card, and nothing else, in your mail box. The post card reads “The United States Postal Service has permanently suspended operation. Sorry for the inconvenience. Have a nice day.”

    Or one day you go to turn on the TV and … well, never mind, you get the point.

    This morning I received an email from Socialite, a software application, telling me that the software app would not be developed further, could no longer be updated, and was no longer for sale. The main reason for Socialite’s demise is summarized in this text from their web site:

    In 2012 Twitter announced API changes and made it clear that traditional Twitter clients, such as Socialite, should not be developed. Some of these new rules made developing Twitter support in Socialite 2 impossible, so after much deliberations we stopped the development of Socialite 2.
    End-of-life of Google Reader in 2013 was the last nail in the coffin of Socialite, as without it Socialite loses much of its appeal.

    Now, I don’t use Socialite, so this does not matter to me, but it is part of a larger problem that has been a difficulty for everyone. First, with respect to Twitter, it seems to me that Twitter does change its API now and then, which in and of itself causes havoc in the development community. Furthermore, it seems that these changes in Twitter API are not necessarily improvements, but rather, sometimes involve removal of functionality. One could even argue that Twitter has a policy of changing, and sometimes even “breaking,” it’s API in order that software projects that make use of it no longer work.

    I remember a few years back when Twitter was still pretty new and there were all sorts of great ideas for using the Twitter environment to do things like citizen science. But it seems to be the case that any long term use of Twitter, especially if that use requires use of the API (but even if it does not), isn’t worth attempting because any investment one puts into the project could be obviated at any time by Twitters policy. That policy, it seems, is “Innovate with Twitter at your own risk.”

    The second part of this is, of course, Google Reader being shut down by Google. This is a little different. I might be wrong, and do correct me if so, but Twitter seems to be somewhat arbitrary in its API changes, and seems to do very little to support and encourage development with its framework. Google, on the other hand, seems to encourage development of projects and activities based on its services. Nonetheless, a lot of people were surprised when the widely used Google Reader, which served as a key component of many development projects, was axed. Getting rid of a project few people use and that seems to not have really taken off is one thing (and Google has done that a number of times, which is an obviously likely outcome of diverse innovation which Google seems to do). But Twitter is not Google. Twitter is the kind of project that could easily have been one of many services offered by a company like Google. Twitter, when it changes itself in a way that destroys functionality, is not dropping support for one of many projects. It is making itself irrelevant and annoying as a tool for incorporation in other projects.

    So, what is the difference between roads and mail service on one hand and Twitter and Google on the other? The former are public goods, funded publicly and regulated by the government. Similar projects exist in most countries around the world and they integrate across national boundaries. The latter are projects of private companies that have every right to change their services, restrict use, or even shut down entirely.

    Amazon is similar. Over time, Amazon has become one of the major, if not the major, supplier of two things one does not usually associate with a book store: Servers and cash registers. If you use a service that requires computer servers and/or storage of data, such as Netflix, you may well be using Amazon indirectly because they provide servers for a gazillion clients. When a bunch of Amazon servers go down, the Internet can choke majorly, though fortunately this happens rarely. Similarly, when you make an on line purchase at any on line company other than Amazon, there is a reasonable chance that you are using Amazon indirectly, as they provide the on line purchasing system to a lot of other vendors. And, now and then, you might even buy a book from Amazon.

    When Amazon decides to change what it does or how it does it, which they can do arbitrarily within the range of existing contracts, a lot of things can, potentially, change. A minor example of this happened recently to those of us based in Minnesota, when Amazon, not by necessity but simply to make a point, shut down associates in the North Star State. That was part of my income stream (though a very small part, I quickly add) and Amazon simply sent me an email one day saying that this would no longer be a thing, and there was nothing I could do about it.

    Twitter, Amazon, Google, and similar things are like the railroad, mining, and lumber companies of yore, run by a small number of highly influential individuals who happen to be in charge by a combination of luck and whatever else makes you one of those people. The thing is, these corporations effectively serve as public goods, just like our roads, our power grid, our water and sewage systems, our public mail service, our fire departments, etc. but they are not public entities.

    At the moment, we who use the Internet, software, etc. are at risk of the arbitrary decisions of a handful of modern Robber-Barons who got into their present position for reasons other than being thoughtful, sensitive, public servants. All hale the free market.

    Is there anything that can be done about this? Possibly. Here are a few ideas.

    1) The US Senate can pass a resolution requiring Obama to bomb Twitter. That would not solve anything, and of course it can’t really happen, but the debate in the Senate would be high entertainment.

    2) The government can take over Amazon, Google, Twitter and a few other companies, sort of like how it took over the companies that built roads and canals (and to a lesser extent, railroads) in days of yore.

    3) A version of the government takeover in which the government doesn’t really take over but “authorities” are created, like the ones that handle ports, airports, etc. today (those entities were originally private, in many or most cases).

    (These two options, 2 and 3, seem impossible, many will think they are bad ideas. And they will be bad ideas right up until the moment Google is about to go bankrupt or is embroiled in some sort of scandalous legal difficulties of some kind, and a “bailout” is needed. A thing like Google will never need a bail out of course. Like banks. And car manufacturing companies. They would never need a bail out either.)

    4) Alternative services, like Amazon, Google, Twitter, etc. can be developed by non-profits using an OpenSource GPL-like model. Those services would probably not be big, or widely used. But they would be there. Then, one day, when the big players falter or become too annoying in one area or another, the OpenSource alternatives can grow a little here and there, and eventually, become the norm.

    5) See below (this is where you put your ideas in the comments):