Judge: WDE violated Public Records Act, tried to conceal evidence

CHEYENNE — Defendants in the public records lawsuit led by former lawyers George Powers of Cheyenne and Rodger McDaniel of Laramie have been found to have “knowingly or intentionally” violated the Wyoming Public Records Act.

The lawsuit, filed against the Wyoming Department of Education, Communications Director Linda Finnerty and former State Superintendent of Public Instruction Brian Schroeder, was related to records detailing the origin of funds for a press conference titled “Stop the Sexualization of Our Children.”

The event, organized by Schroeder in October 2022, was influenced by conservative groups like Moms for Liberty and No Left Turn in Education (NLTE). Though he initially denied using public funds to finance the news conference, text messages made public through the lawsuit showed that Schroeder used state money to fund the event.

According to a “Finding of Fact and Conclusions of Law” filed Wednesday by District Judge Steven K. Sharpe, “The Defendant WDE violated the WPRA through the acts and omissions of its agents and employees, including but not limited to the acts and omissions of Finnerty and Schroeder.”

Evidence showed that during Schroeder’s time as state superintendent, he used state funds for a partisan event, a fact that was intentionally covered up by Finnerty during a public records case.

Though the documents were eventually provided, it required a lawsuit to do so, and Sharpe found that the evidence against the two proved that fact. In a statement to the Wyoming Tribune Eagle, Powers said he felt Sharpe described it best in a court document:

“As John Adams once famously stated in a closing argument: ‘Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.’ The ‘stubborn facts’ in this case plainly show that the WDE spent public money on the October 25 Event (at Superintendent Schroeder’s urging), and then engaged in efforts to conceal and avoid revealing those facts when they initially responded to Plaintiff McDaniel’s requests for public records.”

Sharpe found that Finnerty “limited her initial search for public records to Schroeder’s official cellphone and his official email account” and excluded other WDE employees from her search.

The court assessed a penalty of $700 each that the WDE, Finnerty and Schroeder will pay to the Laramie County public school fund. In addition, the court awarded McDaniel nominal damages in the amount of $100 each from the WDE, Finnerty and Schroeder.

The court did not award Powers any nominal damages, as Sharpe found his arguments were more a response to McDaniels’ first two records requests, rather than evidence of personal loss.

“Nominal damages in the total amount of $300 to Rodger does not in any way reflect the seriousness of the violations that occurred here,” Powers told the WTE.

Sharpe was unable to award McDaniels and Powers compensation for attorneys’ fees, expenses and additional court costs incurred over the course of the lawsuit because, according to a court document, “The WPRA does not contain any statutory authority for the court to do so.” The court instead assessed penalties and awarded nominal damages.

“I’m very happy to have prevailed, but I think that there’s more work to be done. This lawsuit was only successful because Rodger McDaniel and I have the time and resources to pursue it; ordinary citizens would not have had that opportunity,” Powers told the WTE. “If the Public Records Act is going to be effective, it must be amended to allow for an award of costs and attorneys fees when our public servants have knowingly or intentionally violated the public’s right to know.”

Evidence filed in the lawsuit proved that Finnerty and Schroeder knowingly withheld records.

In her initial search, Finnerty used narrow parameters to search Schroeder’s official cellphone and his official email account, according to court documents. The example used in court was the exclusion of Elena Fishbein, a speaker at the event who was specifically named in the records request.

Finnerty knew that Schroeder was using his personal phone for emails and text messages regarding the event and still did not include that device in her initial search. She also neglected to include her own devices.

“Many of Finnerty’s failures in responding to the initial request for records continued and were repeated when she responded to the second request for records on January 1, 2023. The searches were again overly narrow and flawed,” according to the judge’s finding of fact.

Finnerty continued to conceal and withhold responsive records, including evidence of an airplane ticket purchased.

Schroeder and Finnerty’s actions were a violation of the WDE Employee Handbook, which requires employees to “follow the highest standards of honesty, integrity, and fairness when engaging in any activity concerning the agency, particularly in relationships, whether they be with customers, the public, or other employees in person, by telephone, or electronic.”

Schroeder neglected to help Finnerty find public financial records regarding the event, even though he knew the records existed, according to a court document.

McDaniels and Powers had made requests for public records stored on his personal phone, including emails and text messages, but Schroeder refused to provide them even after being advised by the Wyoming attorney general to do so, according to court documents.

Schroeder made repeated false and misleading statements about the use of state money for the event. He publicly claimed that the event was financed with private money prior to any private sources donating to reimburse the WDE.

WDE staff, including Finnerty, had questioned his decisions, which Schroeder was aware of as they had tried to “warn” him, according to court documents.

The WTE has not been able to contact Schroeder, Finnerty or McDaniel for comment.