The unincorporated town of Congress sits at the junction of state highways 71 and 89 in the middle of the Arizona desert, a no-stoplight kind of place if ever you saw one. It is so small, in fact, that the prickly pear cacti may very well outnumber the 1,700 or so souls who call Congress home.
And so it is a rather unlikely setting for a bitter open government dispute that has drawn attention far beyond the gossip being swapped at the local cafe.
"First Amendment, FOIA doesn't apply in Arizona?" asked a perplexed San Francisco Examiner.
What happened is this: The Congress Elementary School District, fed up with repeated records requests from four women — two of whom have children in school — responded by suing them.
It's one example of the tug of war going on nationwide over open records laws. In another case, the Hawaii Legislature is considering a law that would bar repeated requests for President Barack Obama's birth certificate.
In Arizona, the district seeks to prevent the four from filing open records requests without first getting permission from a judge. The prohibition would extend to the defendants' "agents, servants or employees" and also bar the four from filing any lawsuits or claims against the school before a court, administrative agency or "other forum."
"It is absolutely outrageous and outrageously expansive," said the defendants' attorney, Carrie Ann Citren of the Goldwater Institute in Phoenix. "If any of them were hit in their car by a school bus, they would not be able to file a claim unless they went to a court first to ask permission. The two parents will never be able to find out their child's lessons plans.
"The whole idea behind our system of representation and our system of democracy is that members of the community, who have to foot the bill for public activities ... have a right to be able to know what's going on," she said.
District alleges harassment
But the district insists it has complied with the citizens' requests — over and over and over again, they maintain. They now insist it's gotten to the point of harassment, and that the requests are impeding this tiny, rural school district from its ability to function and educate. (The district, by the way, consists of just one school — the yellow and purple building on Tenderfoot Hill Road serving 112 children in kindergarten through eighth grade.)
"The district has done nothing but aid these people in the exercise of their rights. But these particular people have exercised their rights in an unreasonable manner," said Franklin Hoover, the school district's attorney. "At what point does the district have the right to say, enough is enough?"
It's one of the enduring conflicts surrounding public access. Is there ever a situation when following the law incorrectly puts the rights of a few ahead of the larger mission of a public agency?
So-called serial requesters or frequent filers can "literally clog up resources and bring everything to a halt," said Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri School of Journalism.
Davis, who reviewed the Congress lawsuit, stressed he did not believe that was the situation in this case. He called the school district's decision to sue not only rare but said it could have a chilling effect far beyond Congress.
"What it does on the ground is scare the hell out of everybody," he said. "I can only imagine other requesters across the state will be like, 'Oh my God. We can get sued for making an FOI request?'"
Hawaii's Obama case
There have been legislative attempts — unsuccessful, Davis said — to place limits on the number of open records requests filed. A bill now pending in the Hawaii Legislature would allow state agencies to ask Hawaii's Office of Information Practices to declare an individual a "vexatious requester" if they've abused the process and restrict that person's requests for up to two years.
Under the proposal, factors constituting abuse include: filing a large quantity of requests; making duplicative or repetitive requests for the same action when the agency has already responded; and requests submitted for "nuisance value or harassment."
The measure was prompted, in part, by repeated requests made to the Hawaii Department of Health for President Obama's birth certificate — more than 50 e-mail inquiries a month, most made by a handful of people, Health Director Chiyome Leinaala Fukino said in testifying in support of the bill.
"The time and state resources it takes to respond to these often convoluted inquiries are considerable," Fukino said.
One taxpayer's lawsuit
Texas taxpayer Thomas Ratliff can relate to "considerable." In 2007, Ratliff sued the Eanes Independent School District in Austin, saying its practice of responding to voluminous open records requests was an "illegal expenditure of public funds."
Ratliff claimed a small group of residents had made nearly 1,000 requests totaling about 100,000 pages of records. The cost of complying with those requests had exceeded $500,000, according to the lawsuit.
Randall "Buck" Wood, an attorney who helped draft the Texas open records law, took on Ratliff's case because he wanted to try to convince the state Legislature that the Public Information Act needed to be brought up to date for the Internet age. E-mail and electronic filing simply made it too easy to request documents, Wood said.
A "cottage industry," he called it, citing the case of a parent who inundated a school district with requests after their daughter was passed over for cheerleader.
The lawsuit eventually was dropped after the Legislature amended the information act to allow governmental bodies to bill for requests that take more than 36 man-hours in a 12-month period. Recognized news media outlets were exempted.
"At some point, it crosses the line," said Ratliff, who is poised to take a seat on the Texas Board of Education. "We don't want government entities becoming a personal Kinko's for somebody's hobby."
Trouble with uniform standards
The question, of course, is how to determine where to draw any line.
As Davis points out: "To a clerk in a big city, a vexatious request might be one thing. To a clerk in a very small town, it might be 10 or 12 requests. How in God's name are you going to apply a uniform standard for what is too much?"
Added Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press: "Every once in a while you get an ornery public official who ... raises hell saying, 'this person is annoying us to death.' But there's nothing in the law that says taxpayers can't be annoying."
Officials in Congress insist that they're suing not because citizens are annoying but because they're downright disruptive.
The lawsuit, filed in Yavapai County Superior Court, accuses Jean Warren, Jennifer Behl-Hoge, Cyndi Regis and Barbara Rejon of "engaging in a coordinated campaign to harass and impede" the functioning of the district through "multiple" complaints and abuse of the public record request system. A judge has set an April 5 hearing on the defendants' motion to dismiss.
The lawsuit cites some 100 public records requests in eight years, as well as complaints to the state Department of Education, the Arizona Attorney General's Office, the fire marshal and the state ombudsman.
Steely eyes, unwavering resolve
Warren, 59, lives with her husband and dog about a mile or so from the school, at a place called Shooting Star Ranch. She is a self-described housewife with steely gray-blue eyes and unwavering resolve.
Warren filed most of the requests cited, some of which aren't public records requests at all but rather requests for things such as "have handicapped parking available" or to provide an e-mail address "to write instead of faxing."
Other requests asked for school board meeting agendas and minutes, documentation regarding staff training, a list of spending for school computers, serial numbers for air conditioners that were replaced, warranty information for the new air conditioning units, documentation demonstrating specific problems with the old units.
She is, undoubtedly, unrelenting. But she also says she is simply exercising her rights.
"I'm just an average citizen wanting to make sure that the money we're paying is being used appropriately," said Warren, whose grandson once attended Congress. "I stupidly thought you ask for a record, you're gonna get it. I never thought it was going to go this way."
School board cited
The Congress school board was cited for noncompliance with open access laws in 2002 and 2007 by the Arizona Attorney General's Office for holding executive sessions without proper notice or agenda, holding "special meetings" outside of regular board meetings and discussing school business after adjournment.
In 2009, the state ombudsman chastised the district for taking too long to respond to records requests, including one parent's request to see records related to her daughter's counseling sessions. It took 16 months for the district to report that the records were housed at another agency.
Toni Wayas, who serves not only as principal but as superintendent of Congress Elementary School District, insists she is doing her best to respond, and maintains she has made available more than 100,000 pages of records to the defendants.
The Congress school is a source of pride for many here with its low student-to-teacher ratio, improving test scores and initiatives like the one that provides laptop computers to every student in the third grade through eighth.
"This is the school of my dreams," gushes Wayas. "We have things to brag about. We have nothing to hide."
She's responsible for just about everything at the school: budgets, reports — and responding to requests for information. She has just 18 other full- and part-time employees.
"In some cases it might take me 20 hours for one response," she said. Each request might include multiple bullet items, "So is it truly 100 requests? No. You should multiple that by five or nine, and then it's getting at the volume."
"We are trying. Honestly. But to have public requests so unreasonable that a tiny district with 112 kids must hire a full-time clerk to process them is not reasonable," she said. "I wish I could identify what it is they want."
For Warren, the answer is simple enough: "It would satisfy me if they would just follow the law."
