by C.J. Ciaramella
Last month, a Missouri state circuit judge did something nearly unheard of: She punished a public official for flouting transparency laws.
State Circuit Judge Patricia Joyce ruled that Cole County prosecutor Mark Richardson “knowingly and purposefully” violated the state’s open records law when the prosecutor denied a records request by Missouri resident Aaron Malin seeking communications between the prosecutor’s office and a regional drug task force.
The $12,100 penalty wasn’t much as far as civil lawsuits go, but it was the largest ever handed down in Missouri for violating public record law.
And it was sweet vindication for Malin, a 24-year-old law student (and previous Reason contributor) who has filed nine public records lawsuits since 2014 against Missouri drug task forces and prosecutor offices for refusing to turn over documents on how they fight the drug war.
Those laws are supposed to guarantee public access to the government’s business, but Malin, through voluminous records requests, found the drug task forces were operating in virtual secrecy. One task force tried to deny its own existence to dodge a record request. Others refused to share budget information or were failing to keep records they were required by law to maintain. Malin is suing another task force for falsifying meeting minutes.
Such stonewalling is regrettably common across the country, but Malin’s litigious crusade to make Missouri law enforcement comply with transparency laws is notable not just because of his persistence, but because of the results.
One of the biggest problems with federal and state freedom of information laws, is they have no teeth. Public officials almost never face consequences for stonewalling records requests, beyond the inconvenience of being sued.
“We hope that this case will serve as a deterrent to government officials who consider not being transparent,” Tony Rothert, legal director of the ACLU of Missouri, said in a statement following the ruling. “The Sunshine Law ensures an open government and helps establish trust between the government and the people it represents.”
Malin’s quest began in 2013, when he was driving to a local conference on drug legalization. At the highway exit ramp to the conference, he was stopped at a “license and registration” checkpoint set up by police.
“It was almost certainly unconstitutional,” Malin says in an interview with Reason. “They were stopping every car just to check drivers licences, and of course smell their cars to develop probable cause for a search, on suspicion that people attending the event might very well be in possession of marijuana.”
Malin suspected the checkpoint was set up just to harass and potentially arrest conference goers, so he fired off a public records request to find out more about it. He was surprised learn that it had been set up by the local sheriff and a regional drug task force. Missouri had 27 drug task forces—multi-jurisdictional law enforcement agencies, funded by a combination of federal and state grants, prosecuting the drug war across the state.
“No one was aware we had these drug task forces in operation,” Malin says. “Even the people who approved their budget weren’t aware of what they were. They have incredible multi-jurisdictional arrest power and limited oversight and transparency. They’re essentially given block grant funding and told, ‘Here’s a quarter million dollars a year. Go fight the war on drugs and kick down some doors.’”
Malin decided to dig into how these drug task forces were funded and how they operated. He began filing freedom of information requests to prosecutors’ offices, drug task forces, and local law enforcement agencies. While some were prompt and professional, many ignored Malin’s requests or offered increasingly strange rationales for secrecy.
Some drug task forces claimed they were wholly exempt from state public record law. Another denied his request for routine quarterly reports, citing a section of Missouri law that protects records involving terrorism.
The St. Louis Metropolitan Police Department tried to dodge Malin’s request for information on its drug task force by claiming the task force didn’t even exist, an interesting but not very compelling metaphysical argument. Malin had records showing the department received $200,000 in state grants in 2013 for the task force. The official authorized to accept the grant was none other than the SMPD official who said the task force did not exist.
In 2014, Malin started filing lawsuits with assistance from the state chapter of the American Civil Liberties Union. Of the five ruled on, one was dismissed for technical reasons. The other four went against the drug task forces. In January, a judge ruled the East Central Missouri Drug Task Force violated the state’s sunshine law when it refused to allow Malin to attend its public board meeting.
Until October’s ruling, though, courts had declined to issue penalties because the violations weren’t found to be intentional. It turns out ignorance of the law is an excuse sometimes. Malin says he still counts those cases as victories.
“We got the main thing we were asking for. We got the documents,” Malin says. “There was a ruling on the books that drug task forces were entities subject to the sunshine laws, which was something they’d been denying for years.”
Malin says he’s filed maybe more than a thousand public records requests to Missouri law enforcement groups over the past couple of years. His tactics have not won him any friends among police. For Missouri law enforcement, Malin is an axe-grinder, a gadfly using public record law to bury their offices in paperwork.
“He knows what he’s doing,” Lt. Jason Grellner, president of the Missouri Narcotics Officers Association and a candidate for sheriff in Franklin County, told the St. Louis Post-Dispatch last year. “Basically he is just harassing the task forces.”
Malin’s even being counter-sued by one sheriff’s office in what’s known as a “reverse FOIA” lawsuit. The sheriff’s office is asking a judge to rule on whether it must release records Malin is seeking on behalf of the mother of a drug task force officer who died under mysterious circumstances. The sheriff’s office also named the mother in its lawsuit. As Reason wrote in September, there’s been a worrying uptick across the country of local governments filing lawsuits against records requesters, but as far as Malin knows, his is the first reverse FOIA suit in Missouri.
Malin has just one response to the haters: Scoreboard.
“If I were really just harassing these task forces,” he says, “I wouldn’t be winning the lawsuits.”
This article was originally published on Reason.com on November 6, 2017; reprinted with permission from the author.
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