The "Forcing Transparency" session is part of the legal track, and focuses on how to use "open government, public records, and freedom of information laws to get statistics, policies, internal documents and more." It's given by attorney Kate M. Neiswender. From official bio:
Kate Neiswinder is an attorney specializing in land use, business litigation and environmental law. Kate was the Chief Consultant to the California Senate Committee on Natural Resources and Wildlife. In the course of this work, she defended and litigated under California's landmark 1998 Animal Shelter Law, the nation's first law making it illegal for shelters to kill animals if rescue groups are willing to save them.
Starting in five minutes...
And here we go.
"I'm not a recovering lawyer. I actually continue to practice." (Laughter."
Said in our swag bags is a disc with more info on using the Freedom of Information Act (FOIA) to get public records.
Said she feels very frustrated when she doesn't have power. So often public agencies have all the power and hold their cards close to their chests. "It's maddening."
Wants to give us tools not to get mad, but "get even."
We want public records to monitor what's happening in shelters. In CA, we have the Hayden Law, which creates a system to make the shelter run better. Lengthened holding periods, required shelters to give access to rescue groups. Other law mandated all shelters spay/neuter before adoption and prompt and reasonable vet care, and some other things.
But no one was following the law. Even when she'd show them the law. Then in 2004, they sued Kern County Animal Control.
First made series of public records act requests. Found out they weren't following law. Prelude to litigation.
But she's learned rescuers are also using public records laws to get shelter statistics to go to their legislators to try to change things in their areas by showing what other counties are doing.
Legislators are only human and flawed, but if you can provide them with statistical evidence of what's happening in their jurisdiction they will often step up.
First, who can we get public records from? State and federal government, and any public entitity.
Federal government, FOIA. All 50 states and DC have some kind of public records act or "Sunshine Law."
Recommends IRE.org and one First Amendment Center.
Praised reporters for doing most to get public records. In survey, say that their legal requests for information are often ignored or denied. This, she says, proves how important those records are, and access to them.
The ultimate remedy is filing a lawsuit, but you have to carefully take all the steps before that. Lawsuits are expensive. Reporters say that greatest obstacle to enforcing public records laws is cost of litigating. But this is a constitutional issue and you have a RIGHT to these records.
First: KNOW YOUR LAW.
California has a really good public records act.
Go to your law and see what your state's procedure is,and how much you can get. Most public records can be obtained if you name them, describe them, correctly. Start with Google, state name and "public records act." Many of your best resources are tied to journalists in your state. Ask a friend who is a reporter.
(From Christie: Society of Professional Journalists has good resources on this.)
Every state is different. If you live in MD, don't think you know what VA is like.
What is a record?
What you're asking for is as important as knowing the law. A record includes written docs, emails, computer records, kennel cards, medical records, adoption records. But they are not required to do a complication of records, answer questions, do an audit or survey.
Chameleon is a shelter computer system. If they've got Chameleon say you want all their Chameleon records for a given time period. Computerized records makes this SO much easier.
You want specific information that will help you with your outcome. For example, we had a suspicion from rescue workers that the people who were euthanizing animals did not have any training to do so. In CA, it's the law that a shelter worker have a min of 8 hrs training to do euthanasia.
First, we asked for names of all shelter workers. Then asked for every document you have for people named in request one have training. We got one certificate for 8 people. It was very helpful because it's truth they're not following the law.
Law is black and white. Judges don't want to hear shelters didn't do a 'good enough" job or didn't provide "reasonable vet care." Those are a gray area. Stay out of it. Try to show they BROKE THE LAW. Not that animals aren't being treated fairly, but black and white clean that they broke the law. "Didn't hold the dog for four days, law says you have to. " "They don't have required training." Etc.
One shelter didn't have computer, gave us hundreds of kennel cards. "It was a bear, but it's doable."
Recommends using a copy service if you have to review and copy public records on site, found under "Attorney services" on google. Says they're usually very reasonable, and it's something they do all the time.
When to use public records laws?
Holding periods. Often anecdotal information from rescuers that animals are not being held as long as required. Use public records laws to find out how long animals are being held.
Medical records. We had anecdotal info that animals were being held without treatment of broken bones etc. Always ask for big chunks of time... 1-2 years in time. Judges don't like records older than that.
Controlled substances. Put in mirror requests to the county or state, and also to the DEA (Federal request). Compare what they say to the DEA to what they report locally.
We had one shelter where a rescue worker said a shelter worker was euthanizing dogs for a rescue after hours for no cost. And technically, the minute there is an owner surrender, EVEN FROM A RESCUE, the animal has to be held for 4 days if you have worker-friendly hours, 6 if you don't. (In CA.) So a mirror request to DEA and locally can provide proof of this.
Many shelters in CA use inmate labor. In San Luis Obispo County there was evidence inmates were getting into the drugs, and they were losing a lot of euthanasia solution. Go to the DEA.
Staff qualifications. Ask for copy for policy and procedures manual that tells what staff is given when hired. What are qualifications to become employee?
Statistics. Again, not always useful for courts, but very important for your legislatures.
It's also important to know your shelter. Knowing what shelters do on a day to day basis can make it easier for you to know what to ask for.
Note: (Took questions from audience at this point -- had huge wave of jet lag so took a little blogging break. Sorry.)
Said you will often find shelters don't know the laws in many cases, and in some know it but choose to ignore it.
But don't assume they know the law.
What you can't get:
In most states, you can't get annual reports, pay scale, disciplinary records in personnel files.
Can't get names of adopting parties in CA, other places.
Names of complaining parties are privileged.
Helpful hint: Offer to allow redactions.
Which agencies must cooperate? All state and fed'l agencies, public shelters, private shelters with public contract, counties, cities, DEA.
Federal gov't is different from states, cities and counties. FOIA is Freedom of Information Act. Sample letter in packet she provided.
Often good to start with broad brush stuff, like Chameleon records. You might see something in those that prompts additional requests -- such as, "Gee, they're killing all the ferals." You're not limited -- you can make a new request every day for a year. They may get annoyed with you, but it's your right.
Not going to candy coat this: They make you wait. They delay. Don't waste your time to force them to give records more quickly than they're going to give them to you, unless they're stonewalling and it drags on for months. Because by the time you file a lawsuit, they'll have given you the records -- and they know it. So don't get too excited about time lines.
There is no fee for access, but fees for copying. In your letter offer to pay the cost of copying so they recognize you're aware of the law.
If agency withholds records, have to tell you what they're withholding, and why. When you get to this point, you're probably talking to someone who works for the government or a shelter director. They tend to feel threatened because you're a lawyer and they know a lawsuit is coming. So try to get to talk to a LAWYER, and try to get a lawyer to talk to them for you. City attorney, county counsel, will know the law and that they have to release records.
My clients tend to get very emotional about these issues. "Don't get mad, get even." Don't raise your voice, or a fuss. Be quiet, reasoned, rational. Gov't thinks animal rights people are table-pounding and irrational. Be ultra-rational and cooperative.
Eventually you'll file a lawsuit and pounding the table doesn't work. You need the law. The black and white stuff.
With FOIA, they have to provide you something in writing within 20 days. Most shelter-related FOIA requests will be to the DEA.
If a private organization holds a contract animal control, just go straight tot he city or county and request the information from them, not directly from organization.
For a 501 C 3, you can ask for their federal tax return -- can get a lot of info that way. Pretty amazing. Go to Guidestar.org, get 990s,can see if there is federal or state grant funding, and go to the gov't grantor and ask for information.
Some private shelters are the worst offenders and it's very infuriating, but they often are doing work for cities and counties and you can get it that way.
And once you get this information, you can put it on the web. It's public information. Just be careful disseminating personal information about an individual. Be very shy of that, talk to a lawyer in your jurisdiction.
Keep record of every phone call you make. Keep a log. Write down who you talked to, when, what was said. Keep every letter, every email. If you file a lawsuit, you have to show you were reasonable and they didn't give you what you asked for.
Lawsuits. Once you get to that point, you've made your calls, written everything down, now it's time to file a suit. What kind of suit?
Fighting public entities is a specialty. To find a lawyer, go t0 environmental lawyers who are used to suing government. Very few lawyers do animal law -- there's no money.
Don't just pick any lawyer. You need someone who knows how to fight government.
You'll file a petition for writ of mandate. You are suing the government to perform a ministerial act. There are no damages. You get an order, a writ, and it says City, immediately release the following records to this person.
It's an expedited procedure, it's very fast. You need to find someone who is familiar with this.
The cost is an obstacle. In most jurisdictions, filing fee $200-500. My recommendation is if you have an organization, use the organization to sue, not yourself. If you are trying to sue for something that is for the benefit of the public, it's better to have an organization so at the end of it all, I was suing on behalf of an organization that was formed to protect environment, companion animals -- better claim on getting fees awarded.
You can do this without an attorney. It would take a smart person quite a bit of time on the Internet and in a law library. You may be able to find an attorney who is willing to give you some help but not appear in court.
Remember as you look for records, you may end up in front of a judge. Never forget. This is why you always act very reasonable. Every letter you write, every call. Never forget. Stay calm, measured. Passion is wonderful, but it's a young man's sport. The older I get, the more I know: stay calm.
Getting excited, passionate, is a mistake. Don't do it. They already think animal rights people and environmentalists are crazy, emotional.
When I changed my presentation style, I started winning in trial court all the time.
Kern County case one of my favorites. It was 2004, six years into Hayden. No one had filed a suit under the law.
We had three rescue groups, two dog, one cat, told us this was the worst shelter in the history of time. Locked gate, wouldn't show you any animals, all owner relinquished killed on impoundment, holding periods not met, 97 percent of cats killed. Never followed Hayden. Anecdotal evidence untrained people euthanizing.
Put together a temporary restraining order motion. You only give them one day notice telling shelter you're asking for an order stopping all euthanasias at the shelter.
Had a very nice cooperative county counsel, which is not usual!
Judge had 6 photos of his dog in his chambers! They got the restraining order, and then stopped euthanasias temporarily.
The shelter started working with them. County counsel was working with them. Judge sympathetic. Don't go to court at that point -- keep lawsuit hanging over their heads to motivate them.
We got a lot of reform at that shelter, although it's still far from perfect. We did finally go to trial, though, because we couldn't solve some of them. We lost on vet care, because there was no vet who examined the animal on intake and could testify that care provided was not up to the standard of care. Expert testimony is a big area in law.
We got them on violation of holding periods, drug laws, feral cats... but we couldn't do it on the "gray area" of vet care. Law likes black and white.
Ultimately, litigation is a means to an end, a tool.