Advancing transparency reforms through collaborations of diverse voices
The National Freedom of Information Coalition and state open government coalition members advance legislative and policy reforms in state and local public institutions. These reforms are intended to increase transparency and access through improved laws, policies, and judicial remedies in public information administration and dissemination. They are targeted to increase press freedom and public engagement. Public agencies and officials can also realize economic and political benefits by adopting reforms that increase access and efficiency.
Research and input from the state coalitions, and from the journalism, civic and government communities identified six core topics and challenges where legislative and policy reforms are needed. NFOIC’s objective is two-fold: 1) Enact open government reforms in state legislative and executive branches through a national collaboration of diverse stakeholders; and, 2) Help build the next generation of First Amendment advocates by expanding diversity and inclusion that increases ideas, priorities and voices heard. Information is power, and that power should be distributed among all Americans.
The six core policy topics are:
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Economic Development
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Criminal Justice
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Public Record Fees
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Litigation Alternatives
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Technology
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Compliance and Enforcement
Every year, corporations across the U.S. are awarded millions in subsidies and other economic incentives by state and local governments. These transactions between government and business are the public’s business. Billions in public funds are used to attract and retain businesses across the states. Yet, with open records laws varying from state to state, many of the incentives and deals are conducted without public knowledge or oversight. And many government-run economic development boards and agencies are exempted from their state open government laws in order to conduct their business outside of public inspection.
Suggested areas for reforms include legislation that makes economic development agencies and activities using public funds covered by the same open government laws of other government agencies and officials; and balancing executive policies that provide the public with details of offers to attract and retain businesses while ensuring the competitive practices of public institutions are not jeopardized.
NFOIC’s research paper, “Invisible Incentives: How Secrecy Impedes Evaluation and Accountability of Economic Development Subsidies” examines the practice of offering public financial and in-kind incentives to attract and retain companies and jobs in communities –mostly without public oversight.
Unchecked law enforcement accountability can undermine a free and open society. From the riots in Ferguson, MO and now Minneapolis, MN and other cities, to protests after police shootings in Baltimore, Dallas, and Louisville, the issue of transparency in policing has heightened in recent years. The use of technology such as body cameras and flawed data used in proactive policing that discriminates against certain residents in communities challenge privacy and civil rights. Exempting files that should be public records, such as use of force and disciplinary actions prevent disclosure to the public creating a veil of silence and suspicion resulting in lack of trust and support between the police and the public.
Recommendations that support innovation to enable responsible expansion of police transparency and accountability and making more trusted data available at the state, local and national levels to provide comparable information across police departments are generally ignored.
The added lack of access to judicial records, incident reports and personnel information makes the criminal justice system one of the opaquest public institutions year after year, as reported by journalists in NFOIC’s National FOI Survey.
In June, NFOIC and the Brechner Center for Freedom of Information presented an online conversation about police transparency reforms. The panelists included Valerie Lemmie, Director of Exploratory Research, Kettering Foundation and Chair of the NFOIC DEI Committee; the Honorable Leslie Herod, Colorado State Representative (D-Denver); Susan Hutson, President, National Association for Civilian Oversight of Law Enforcement; Frank LoMonte, Director, Brechner Center for Freedom of Information, University of Florida; and Nabiha Syed, President of The MarkUp, an independent investigative publication. Use this link to watch and participate in the conversation.
Public records belong to the public. But policies affecting their collection, organization and dissemination vary not only from state to state but also within the same jurisdiction. What happens when an average citizen can’t afford to pay exorbitant fees to simply have access to information? In many states, nothing. Fees often make it more difficult for residents to find out what is happening in their own communities and can be used as a mechanism for government officials to keep information a secret. Cost should not be a barrier to accessing public information in a free and open society.
Outdated laws and policies exacerbate the problem. Public record laws created before the internet prevent the cost-efficient management and dissemination of public records. Some states have not adjusted their fee schedule to accommodate electronic records. Poor record keeping and retrieval practices pass the cost to obtain records to the journalist or resident. Redaction fees can be extremely high due to government lawyers reviewing records when technology solutions can do the same at a fraction of the cost.
Model legislation and agency best practices should be required to bring all states into the realities of 21st Century governance.
Should an agency’s denied public records request be the last word? Should there be another option for the public to appeal a denial?
Independent state open records ombudspersons are a way some states combat this issue with designated and independent offices to provide a clear appeals process for the public fighting to gain access to public records. But sometimes, their independence is undermined by the public institution they support.
Unfortunately, many states don’t have an appeals process when a record is denied by an agency, leaving the petitioner no option but to file a lawsuit. This creates a financial burden not only on the requestor, but also the taxpayer. Many public institutions use this lack of an appeals process as a way to discourage further pursuit of public records.
This increases the financial burden on the petitioner especially in most states where there is no fee shifting provision and the public must absorb the legal fees win or lose. In states that have fee shifting where the public agency must pay the litigants court costs when it loses, limited research has shown these states are more likely to offer the record to forego losing a court battle. In many cases, states with no fee shifting provisions use this method to not only draw out records requests but usually win the gamble that the journalist, news organization or resident will not pursue litigation in order to avoid unrecoverable costs.
One new area that is growing is government agencies undertaking reverse or revenge FOI lawsuits against a public record petitioner to prevent disclosure and discourage the filing of public records lawsuits against the agency.
Recommended reforms include 1) Requiring an appeals process in every state, including a truly independent ombudsperson; 2) Fee shifting provisions that put the financial burden on the government agency if it loses a public records lawsuit; 3) Preventing public agencies from suing a citizen or public record petitioner; and 4) Requiring Alternative Dispute Resolution (ADR) processes in place of litigation that could include enforcement powers and not just advisory powers to rule on denied public records requests.
Technology — when used to support public engagement, interaction among public officials, or managing the collection, organization and dissemination of public information — can streamline administrative and democratic practices. But in many cases, the use of emerging public information and communication technologies empowers public officials and agencies to violate open government and FOI laws and policies governing these practices, like using personal emails or messaging apps as a way to bypass public inspection of government business.
In other cases, agencies ignore the benefits to gaining efficiencies and cost savings from the correct use of technology. For example, open data and record request portals readily provide public access to public records, establish or advance professional standards, and help create best practices within executive branch agencies. Growing evidence shows the economic and political benefits that come from proper use of these technologies as described in a recent white paper exploring these online public request portals and how they are increasing cost-affordable access to public records for petitioners and for stewards.
State and local governments across the nation inconsistently comply with their own open government laws. Sometimes it’s due to a lack of training and education about the laws. But other times, it’s intentional.
Enforcement of existing open government laws is critical to discourage violations. Yet violators are rarely charged, and when they are, punishment is usually a slap on the wrist. A 2017 Knight Foundation research report on State FOI found 77 percent of surveyed transparency experts believed adding fines and punishment to existing open government laws were required. Just enforce the laws that are already on the books, they said. Punishments are rare but charging a public official with violating their open government laws may be even rarer. Given the scarcity of prosecutions over the history of state freedom-of-information laws, two current cases in Georgia and South Dakota occurring at the same time seems remarkable. Abiding by open government laws takes an effort on the part of the public official and agency. However, if they believe that they can get away with ignoring those laws, what incentive do they have to taking the easy route than abide by them?
Suggested reforms include establishing an independent person/agency with enforcement powers or empowering an existing one; increasing and enforcing monetary fines in lieu of criminal penalties to individuals if that will increase compliance; and, improving training and education – officials and government employees who handle public record requests would know how to follow FOI policy.
Read more about this important topic in NFOIC’s new white paper, Blueprint to Transparency: Analyzing Non-compliance and Enforcement of Open Records Laws in Select U.S. States.