A new article in the Seattle University Law Review by former Brechner FOI Project Director Frank LoMonte looks at what is described as a “hole in the heart” of federal and state freedom-of-information laws: The absence of legal requirements to actually retain high-value records – or any meaningful penalty for failing to do so. In the words of one federal appeals court: “There is little value in the right to inspect public records if there are no public records for citizens to inspect.”

While FOI law enables frustrated requesters to go to court when their requests are denied, the article describes how courts have refused to find any comparable remedy for a requester when records are not merely withheld but destroyed. The result, LoMonte concludes, is that custodians are perversely “better off” erasing records they find inconvenient to disclose, rather than just withholding them.

He highlights an ongoing California case – City of Gilroy, in which a police department destroyed video footage of officers removing homeless people’s campsites while a requester was still fighting to obtain the footage – to spotlight the need to fortify FOI laws so that agencies cannot simply destroy documents that they know requesters are seeking.

The article provides recommendations for better laws to address the situation.

Posted: May 29, 2025
Category: Brechner News
Tagged as: Brechner FOI Project, Brechner Freedom of Information Project, FOIA, Frank LoMonte, Government Transparency, open records laws