SUNSHINE WEEK, THE ANNUAL CELEBRATION of freedom of information, is upon us, which means journalists and others are cataloging recent and ongoing government efforts to operate in secrecy. In its final year, the Obama administration spent over $36 million to defend decisions to withhold records under the Freedom of Information Act. Minnesota lawmakers are considering bills to restrict public access to tax court proceedings and to government contractors’ financial records. In New York, an appeals court ruled that state and local agencies may use a classic CIA tactic—neither confirming nor denying the existence/nonexistence of records—to evade requests. A county in Michigan sued a local newspaper in response to a records request. And a Knight study released this week shows that roughly half of FOI experts believe access to information is worse today compared with four years ago—and nearly 90 percent believe the Trump administration will make access worse.
Still, there are bright spots around the country: court decisions, laws, bills, and other efforts breathing life into FOI principles. And it’s important to recognize those successes where we get them, because it’s all too easy to feel discouraged by the persistence and scale of FOI challenges. Progress, however fitful, is being made.
So, instead of casting clouds over Sunshine Week, I’m focusing on the bright spots—the reasons we should feel encouraged to keep toiling.
First, a number of state and local governments have made it easier for journalists and citizens alike to access their data, with the goal of increasing democratic engagement and accountability. Prince George’s County re-launched a website that allows users to download and search all manner of public data and visualize them. Boston launched a beta site upgrading its existing data portal to allow users to apply filtering and visualization tools to its data, and to create charts and graphs. And the city of Anchorage developed a site that includes data on crime, homelessness, property values, and inspection results for certain businesses (e.g., restaurants). Each of those sites is a work in progress that recognizes an essential truth about FOI: data must be usable, not merely available.
Second, state and federal courts have protected the right to know. The California Supreme Court ruled that emails sent or received through a public official’s private account are subject to disclosure if they relate to official business. The influential US Court of Appeals for the District of Columbia Circuit reached essentially the same conclusion in a different case. And in a rare enlightened FOI decision from the Ohio Supreme Court, it held under the state open meetings law that members of a public body may not conduct official business through prearranged private email communications if a majority of the body’s members are involved. That would, the court said, “result in the public being left in the dark.” Using the courts to secure access rights will be increasingly important at the federal level if the Trump administration, as FOI experts predict, makes access worse. (The administration has already removed some data from agency sites).
Third, smart-minded FOI bills and laws have been proposed and passed, respectively, to ensure that the government is open. The most significant came in the summer, when President Obama signed into law the FOIA Improvement Act of 2016, which amended the FOIA to speed up processing and production of records and to limit exemption claims, among other things. At the state level, a Colorado bill would make public any findings by labor officials that an employer cheated its workers on wages, historically treated as a trade secret exempt from disclosure. And the Kansas Senate is considering a bill that would clarify when and how a public body could meet in private. Days ago, it was sent from committee to the full Senate, with a recommendation to pass it. These measures are good for openness, and they have some political advantages for their sponsors: Public opinion polls on FOI have shown strong support for decades for government transparency and for the laws guaranteeing it.
Finally, a major FOI bright spot is the variety of people and organizations that animate government openness every day by requesting records, attending meetings, and telling stories about what they’ve learned—a group that includes journalists, gadflies, citizens, civil society groups, and students.
As a media law professor, students are a special source of encouragement for me. I use a mixture of readings and hands-on activities to teach FOI issues, and all of my students prepare at least one request under state or federal law. The experience seems to demystify the process for students, who mostly believe at first that preparing and filing a request is something like creating the Philosopher’s Stone. To educate those students is not only to empower them, but also to distribute the burden of using and securing FOI rights.
By the end of each semester, my students are basically the FOI version of the Kool-Aid Man, crashing through all the government walls they can find. And as one student told me last year in an email, “It’s honestly exciting when you finally get the information you requested.”
His email went on: “My friend and I made a drinking game out of redactions: one sip for every line we couldn’t read. By the end, neither of us could see, let alone read.”
On that note, cheers, and happy Sunshine Week.