by Paul Alan Levy
In releasing documents electronically pursuant to a public records request, a local government body in New Jersey made a rookie error: using software (presumably Word) to perform redactions in a manner that was easily undone when the requester opened the provided PDF documents using his own device. The documents revealed some settlement discussions between the government body and a local developer, as well as a sleazy effort to avoid disclosure by proceeding ex parte to secure confidentiality from a local judge who was hearing a lawsuit about the development controversy. In response to a motion not served on the counsel for the requester, a known opponent, the judge gave her advance blessings to confidentiality under the Public Records Act. When the developer discovered the redaction error (because a member of the public angrily discussed the documents at a public meeting), the developer rushed into court and persuaded the judge to issue a restraining order barring the requester from disseminating the documents and demanding both return of the documents and identification of everybody to whom the requester has given copies of the documents.
In similar circumstances, some FOIA requesters reflexively cooperate when agencies promptly ask for return of inadvertently released documents, but does the First Amendment authorize courts to order a clawback if the requester refuses?
In a motion to dissolve the restrainer order, the requester argues no, citing such cases as Florida Star v. BJF, Smith v Daily Mail, and Bartnicki v. Vopper, and arguing as well that the injunction is a prior restraint and that the demand to identify potential additional targets for restraining order motions would violate the recipients’ First Amendment right under Dendrite v. Doe to remain anonymous. In addition to the First Amendment grounds the motion argues, based on an extensive affidavit from the requester, that the redactions were improper and, in any event, that the cat was already out of the bag. We were glad to help the requester’s lawyer, Michele Donato, with the First Amendment and technical aspects of the argument.
The trial court did not dissolve the order, AND it ordered that the affidavit and brief filed with the Court be sealed. Because we are stepping in as appellate counsel, in an excess of caution lest our clients be blamed for my posting of these sealed documents, I have deleted the links to those papers that have been posted here. Look for an updated blog post shortly