Ed department public records fight shows cracks in Wyoming’s system

It took more than a year and a half for a state court to find the Wyoming Department of Education’s superintendent and a staff member intentionally withheld public records showing state funds were used to hold a partisan political event.

Public records shouldn’t be difficult to obtain, with a state law on the books that spells out how requests for documents from public agencies must be handled.

But it was a long, expensive ordeal, both for the two retired attorneys who filed a lawsuit and the Wyoming attorney general’s office, which defended the WDE’s action. The average person simply doesn’t have the resources to fight an agency for records it’s legally required to provide.

Last month, 1st Judicial District Judge Steven Sharpe ruled in favor of plaintiffs Rodger McDaniel and George Powers, the lawyers who sought public records relating to then Superintendent of Public Instruction Brian Schroeder’s “Stop the Sexualization of Our Children” event. 

It was billed as a “press conference,” but only one reporter asked a question. It was a blatant political rally on Oct. 25, 2022, shortly before the general election. I know because I was there, taking in every cringeworthy moment of Schroeder’s attempt to smear public teachers and school librarians as promoters of pornography.

Speakers included Elana Fishbein, founder of No Left Turn for Education. Her group’s visit to the capital city, including airplane tickets and lodging, was paid for by the state of Wyoming.

Also featured were members of the far-right Freedom Caucus, led by its chairman, Rep. John Bear (R-Gillette), plus representatives of Moms for Liberty. The Southern Poverty Law Center has designated Moms for Liberty as an anti-government extremist group. 

The rally was originally scheduled for a state-owned auditorium in Cheyenne, but WDE staff warned Schroeder that his plan to use public funds and a state facility could backfire. That led to the decision to move it to a hotel.

Schroeder, former head of a Cody Christian school who was appointed superintendent by Gov. Mark Gordon in January 2022, later announced he was looking for $3,000 in private funds to pay for the event. But state money had already been spent.

Sharpe ruled the defendants committed too many errors, lapses and contradictions between their testimony and their emails and texts. “The ‘stubborn facts’ in this case plainly show that WDE spent money on the event, and then engaged in efforts to conceal and avoid revealing those facts,” the judge wrote.

The efforts were clumsy, and didn’t stop Powers and McDaniel from further pursuing their case.

Powers said he had never filed a public records request before. “There was a lot I had to learn about the limitations of the Wyoming Public Records Act,” he told me.

Powers said he left the standing-room-only rally angry. “Then when we ran into this stone wall and [the WDE lied] to us, that really pissed me off,” he said. “So we filed suit, and they kept coming up with this steady drip, drip, drip of documents.”

Schroeder had already lost his primary election bid to keep his job before the rally was held. The event appeared to be Schroeder’s last-ditch effort to convince conservative parents to support removing LGBTQ-themed books from schools. 

“It was held with public funds just before an election in Laramie County with three or four [Moms for Liberty] candidates who were embracing this rush to vilify teachers, librarians and all the people who were ‘perverting’ our youth,” Powers recalled.

After a court hearing, Sharpe ruled Linda Finnerty, the department’s public information officer who was also in charge of public records, and Schroeder acted in “bad faith.” But another hearing was held to determine if they had done so “knowingly or intentionally.” 

“Those were the magic words to trigger the penalties and damage clauses of the law,” Powers explained. The judge determined WDE staff members were aware public money had been spent a full year before Finnerty released documents admitting that fact.

The plaintiffs requested public records from Schroeder’s private phone. The attorney general advised him to comply, but the superintendent listened to a private Cheyenne attorney and initially refused. Sharpe found Finnerty knew Schroeder used his private phone to organize the partisan event, yet she did not include those records in her initial public records search, nor turn over her own devices.

Schroeder ultimately provided his phone to a third party for inspection.

Schroeder and Finnerty were both fined $700. The WDE, Schroeder and Finnerty were each ordered to pay the original complainant, McDaniel, $100 for nominal damages.

Powers received nothing for his time and money, except the satisfaction of winning a landmark public records lawsuit. He believes it’s the first time a Wyoming court found a state agency and its officers knowingly or intentionally withheld records in violation of state law.

The maximum fine for violating the law, by the way, is only $750. “Give me a break,” Powers said. “Furthermore, who’s going to pay that? It’s not individuals; it’s just more public money.”

Powers wanted to know how much money and how much time the state spent on the case. The attorney general disclosed in a letter to Powers that expenses totaled nearly $8,000, and attorneys and staff logged nearly 900 hours.

Powers said he and McDaniel spent between 300 and 400 hours on the lawsuit. There is no provision in the law to award a successful plaintiff costs and attorney’s fees.

But there clearly should be, and it would be easy for the Legislature to add. It would be a deterrent to state officials and employees.

“If you thought you didn’t want to give up [records] that are going to be embarrassing, well, how much will you be embarrassed when you have to pay $40,000 in attorney’s fees because of what you did?” Powers said.

There is no uniformity in how Wyoming agencies or departments respond to public records requests. Powers said one request he made resulted in such a broad search that it turned up 4,000 documents. He said the WDE wanted $1,000 before it would examine the records, which he refused to pay. Another search with more appropriate keywords was agreed to by the parties.

“You know how you kill public records requests?” Powers asked. “You make it so expensive that people can’t ask for them. You bury the good stuff in the chaff, and you charge people $40 an hour to go look for it.”

Most people, no matter how much they believe the public should have access to records, can’t afford to file a lawsuit. Newspapers often used to, but most Wyoming news organizations today don’t have the financial resources except in vital cases, or if they work together to share litigation expenses.

Speaking of money, it’s interesting to note the $2,500 it cost to hold Schroeder’s rally was eventually paid for with private funds. While it’s clear the superintendent should have heeded warnings not to use public money, the sole legal question before the court was access to public records and if they were intentionally withheld.

Like Richard Nixon and his political cronies in Watergate learned, it’s the cover-up that got them into the hottest water. Now the Wyoming Legislature needs to add a sufficient penalty for violating the Public Records Act. Hopefully, that will keep this incident from being repeated.