Government Agency Says It Will Cost $1.5 Million To Compile Birth/Death Data, Then Refuses To Release It At All
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The easiest way to thwart a public records request is to demand a ridiculous amount of money up front. The McKinney Texas Police Department tried to chase away a request for records on a controversial cop by asking for $79,000 to fulfill it. Florida's state attorney's office stiff-armed a mother requesting official documents related to her own daughter's suicide by telling her it would cost at least $180,000 to round up the records. Even the federal government gets in on this action, with the FBI telling MuckRock it would cost more than a quarter-million dollars to deliver its records on government contractor Booz Allen.Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request.Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015.The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.”The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost.A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million. Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%.A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease. If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed.At that point, the DHSS decided it was no longer interested in working with Reclaim the Records.A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether. I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us."Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business.Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.”“By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated. Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission.What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it.
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posted at: 12:00am on 22-Dec-2016
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Winery Loses Trademark Suit Against Other Winery Over The Term 'Signature'
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I'm going to keep ringing the warning bell about how the explosive growth in the beer and wine businesses has resulted in a similar explosion in trademark disputes until people start listening. An industry that has benefited from so much interest and competition is eventually going to find itself with a massive litigious roadblock on its hands if something isn't done. That said, the typical trademark dispute in the alcohol spaces normally deals with fairly creative names, artistic labels, or cross-industry trademark concerns. Less common are the types of trademark disputes in which the trademark in question is laughably broad or common.Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of.Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label.
In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”. In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed.As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me.
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