Three FOI successes to celebrate during Sunshine Week

Photo: AP

It’s easy during Sunshine Week, the national effort to promote awareness of open-government issues, to feel exasperated by the many recent and ongoing attempts to shield public information from public view. State lawmakers tried to kill a program that helps citizens resolve FOI disputes. States are keeping secret their execution protocols. A police chief prohibited a citizen from photographing public records as he reviewed them. The list is long, and I even wrote in January that government secrecy was the most serious threat last year to a free press in the US.

But it’s not all doom and gloom. There is also cause for celebration this week—bright spots around the country where people are using FOI laws to great effect, where smart-minded FOI bills are being passed or introduced, and where judges and other public officials are breathing life into the right to know. So, instead of focusing on the clouds over Sunshine Week, as I’ve done in the past, I want to take stock of some FOI success stories that show the importance of toiling in these vineyards, of working to ensure that government remains open.

First, people are using FOI laws to great effect, journalists and citizens alike. Consider, for example, Charlotte resident Sean Strain. He got involved at his children’s middle school and requested data on how kids from low-income families perform on state exams—only to be told those data weren’t publicly available. Strain pressed local school officials and learned that the data were available, and now he’s among a group of parents pulling public records on test scores in order to watchdog the school board. The Charlotte Observer reported on Strain’s efforts and, helpfully, produced a “user’s guide to public education records,” commenting, “Citizen access to public data lets people do their own analysis of crucial issues.”

On the other coast, The Desert Sun, which covers Palm Springs and the surrounding Coachella Valley in California, has filed more than 280 requests under the state public records law and the federal Freedom of Information Act, all since 2013. Powering the requests are an investigations team and a data analyst who tracks the status of every request, with weekly meetings about the unfulfilled ones. Those dedicated resources (and journalists) have allowed the paper to uncover that the Palm Springs mayor took money from a developer who benefited from city policies; that Coachella Valley’s unfunded pension gap has grown to more than $350 million; and that 55 farmworkers died in California’s fields between 2008 and 2014. 

This isn’t glamorous work. But Strain’s pursuit of school records and The Desert Sun’s investigation of unfunded pension gaps—and many other examples, like The Democrat & Chronicle’s use of New York’s records law to gather data on 216,268 crime reports in the Rochester suburbs—are critical to democratic accountability and self-government, in the ordinary day-to-day sense. And all of it exemplifies FOI’s potential.

Second, smart-minded FOI bills are emerging around the country, with a major one advancing Tuesday. The US Senate passed a bill to reform the federal Freedom of Information Act, a move that means both chambers of Congress have now passed such legislation. The update codifies a presumption of openness, requiring agencies to err on the side of disclosure in close cases. In addition, the bill creates a one-stop FOIA-request portal for all agencies and restricts the time that certain records are exempt from disclosure, among other things. The Senate and House versions likely will go to conference, and President Obama, despite his administration’s opposition to key parts of the bill, would be nearly compelled to sign it—as the self-proclaimed leader of the “most transparent administration in history.”

Meanwhile, among the states, scandals and the Center for Public Integrity are the driving forces behind a number of new ethics and transparency bills. One of the center’s projects, the State Integrity Investigation published most recently in November, was a data-driven analysis of accountability and transparency in government—with grades given to each state. The investigation found that most states’ ethics and FOI laws are “riddled with loopholes,” making them difficult to enforce in the public interest. Since then, Minnesota and Colorado lawmakers, and the Washington attorney general, have cited their states’ grades in their calls for bills that would make government more open and strengthen conflict-of-interest rules. Two papers, the Minneapolis Star Tribune and The Seattle Times, mentioned the State Integrity Investigation in editorials supporting the bills.

And in Lansing, Michigan, where the Flint water crisis and a sex scandal involving former lawmakers have dominated headlines, a coalition of 37 legislators introduced this week 10 bills that would subject the governor’s office and legislature to state public-records laws. Both are exempt under current law: When the water crisis flared earlier this year, Gov. Rick Snyder agreed to release related executive-branch emails, but he was not legally obligated to do so. According to the Detroit Free-Press, similar legislation has been introduced in every session for years, and whether the bills will pass is not clear. But this is the first time that so many lawmakers have signed on.

Third, judges and other officials are breathing life into the right to know, at every level of government. A federal appeals court handed down an opinion in August that makes it easier for nontraditional publishers to claim FOIA fee waivers, and a federal trial court ruled at roughly the same time that a city could not claim a copyright in its public records. In Pennsylvania, the state Office of Open Records, a quasi-judicial agency that hears appeals from people who have been denied access to records, held that the state FOI law permitted requesters to photograph records rather than pay for copies, joining six other states that have said the same. Oh, and a New Jersey state judge dismissed a lawsuit filed by a government agency against a records requester asking for relief from any obligation to respond to the request.

All good decisions.

Judges aren’t alone, either, in working to ensure that the government remains open. The FBI created an online form to make it easier for people to submit FOIA requests, and San Diego created a public-records portal that hosts all requests submitted to the city and any responsive documents. More than 2,500 miles away, the Library of Virginia hosts an archive of records created on its social-media accounts in connection with its public business, capturing the content in a way that is consistent with the Virginia Public Records Act. That’s a progressive way to retain social-media records. It’s refreshing to see public agencies be proactive on FOI issues—and to see judges vindicate FOI principles. 

None of this means, of course, that we have achieved open government or that there’s no room for improvement. But, it’s not all doom and gloom, and we should take time this week to appreciate the bright spots—the people, the bills, the favorable government actions. We have to take the successes where we get them. 

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.