CHEYENNE — Plaintiffs in the Wyoming Department of Education records request lawsuit filed their affidavits and response to the defendants Friday, alleging state officials couldn’t demonstrate that they have made “responsible or good-faith effort to identify and produce responsive public records.”
George Powers of Cheyenne, one of two plaintiffs in the case against the state agency, said agency officials also couldn’t justify their repeated violations of the Wyoming Public Records Act.
“The evidence shows that these defendants have made repeated misrepresentations of material facts,” Powers concluded. “They have falsely denied the existence of documents that clearly exist. They have falsely claimed that public funds were not used to support this event. They have failed to produce other documents, which should exist, such as the documents accounting for private funds allegedly used to repay the WDE accounts that had been diverted to pay for the event.
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“If this case is an example of how the WDE and its representatives handle their duties under the (public records law), then it is time for this court to see that they put an end to those practices here and now.”
Powers filed a complaint and petition for access to public records with Laramie resident and Cheyenne pastor Rodger McDaniel in Laramie County District Court in March. Their complaint was against the department, WDE Chief Communications Officer Linda Finnerty and former State Superintendent of Public Instruction Brian Schroeder for failing to properly provide records connected to an anti-sexualization press conference held last October.
Schroeder hosted the event at the Little America Hotel and Resort in Cheyenne. It featured keynote speakers from the out-of-state No Left Turn in Education organization, concerned Wyoming parents and lawmakers preparing for the 2023 legislative session.
Plaintiffs were seeking — and still are — materials showing the planning and organizing of the event, how department funds were utilized and extensive communications between the superintendent, department officials and outside parties. Their first inquiry to the Wyoming Department of Education was in October, before the event was hosted, and has led to months of back and forth as records have slowly been presented to Powers and McDaniel.
However, the plaintiffs don’t believe the WDE officials have upheld their duties under the Wyoming Public Records Act.
“The failure of the WDE, Schroeder and Finnerty to provide the requested public records has been done knowingly and intentionally,” according to the plaintiffs’ complaint. “Defendants’ refusal to provide plaintiffs with access to the responsive public records justifies an award of penalties and damages, in addition to requiring defendants to immediately produce full and complete responses to the plaintiffs’ request without further delay or cost to plaintiffs.”
Schroeder and Finnerty disputed this accusation in their affidavits filed on June 15 and said that, as far as they could determine, “I have no records in my custody or control to either Mr. McDaniel’s October 20 or December 2 public records requests that have not been provided.”
“I have never withheld or directed any other person at the department to withhold records or instructed that they should not disclose records in the department’s custody and control,” both defendants stated.
Powers breaks down not only their affidavits, but the materials he has been provided, in a 34-page document showing how he finds this not to be the case.
An example of Powers directly questioning defendants’ statements was, “Finnerty tries to explain why she suddenly remembered in February 2023, that Penny Rodriguez and others in the WDE had been sitting on a pile of responsive financial records, more than three months after she responded to the original request for records and expressly denied that any such records existed.
“Finnerty made material misrepresentations of fact.This latest attempt to excuse her failure to find and produce these records with a suggestion that this all was just the result of mere oversight is simply not credible. Finnerty does not address or even acknowledge her October 18, 2022, email to (WyoFile reporter) Tennessee Watson in which she stated that the event was being funded by the state on the authority of Schroeder.”
McDaniel’s response filed Friday was much shorter, but he backed up Powers when it came to certain documents about how funds were being used by the department.
“Two days before my records request, Finnerty responded to an inquiry from Tennessee Watson of media organization wyofile.org,” McDaniel wrote. “Reporter Watson asked Finnerty whether state funds were being used for the event. Finnerty then emailed Auer, Hamel, Carroll, and Maloney, the WDE officers whom, per Paragraph 9 and 11 of Finnerty’s affidavit, she claimed told her they had no records about the media request, telling them, ‘First media inquiry, I’d love to talk about it.’” “Finnerty later responded ‘Yes,’ acknowledging she was aware that public funds were being used and thereby creating a public record demonstrating as much.”
Close to two weeks later, Finnerty emailed former Deputy State Superintendent of Public Instruction Chad “ Auer specifically asking about financial information in response to my request. Auer responded, ‘Emails is [sic] sufficient. Since this was a privately funded event, probably no need to do financials.’” “Thereafter, Finnerty falsely represented to me that no records existed, when she wrote, ‘I do not have any records regarding funding for the event, as it was not WDE funded,’ in response to my request for ‘any information detailing the source of funds used to pay her expenses or honoraria or any other cost for her (Elena Fishbein to come to Wyoming).’’
This was one of many concerns expressed by the plaintiffs when it came to both fulfilling records requests and “misrepresenting” information.
Powers questioned why there were two personal email accounts connected to Schroeder and not searched through; what kind of training Finnerty had as the records keeper; how Finnerty could not provide any explanation for her failure to produce financial records, when she had reviewed and approved the charges for travel expenses herself; and why many searches were “unduly limited and insufficient,” whether that be with terms or technology used.
“The WPRA was enacted to provide the people of Wyoming with a means to obtain records that would document what the public employees and officers of Wyoming were doing,” he said. “The people of Wyoming have a right to expect that their public servants will respect the right of the public to know what their public servants are up to. When their public employees do not live up to that expectation and violate that public trust, then it becomes the court’s responsibility to enforce the WPRA.”
McDaniel added in his affidavit that public records are rendered meaningless if public employees refuse to take their responsibility seriously.
“The members of the public should not have to file lawsuits in order to access public records, as was in this instance,” he said. “Members of the public less informed about the law and less tenacious than the plaintiffs would not have pressed the issues. No one would have ever learned that the WDE had inappropriately used public funds for this event and/or that there was a concerted effort to prevent the public from ever learning the facts.”
