The State of the Public's Right to Know
Friday, March 13, 2015
Posted by: Angie Muhs
By Sonny Albarado
Chair, APME First Amendment Committee
On the eve of the 10th anniversary of Sunshine Week, a couple of themes become apparent in a review of pending state legislation affecting the public’s right to know.
First, the rush to equip police officers with body cameras throws new light on the long-running tension between privacy rights and public-access rights.
Current Oklahoma law, for example, makes police audio and video recordings public, with limited exceptions, but an attempt to gut the law in this year’s legislative session sparked an outcry from open-government advocates. Now, proponents of restricting access and supporters of openness are negotiating a compromise, according to The Associated Press.
Lawmakers, police, prosecutors and open-government advocates in Utah and Washington also are grappling with trying to balance privacy concerns and the public’s right to hold law enforcement accountable.
The second theme that emerges from pending legislation also involves the double-edged gift of technology.
Technology makes it easier for officials to respond to public records requests because electronic documents can be quickly gathered and emailed to the requester.
But technology makes it harder for officials when responding to a request for, say, three years worth of emails because state access laws typically require short turnarounds on responses.
In Arkansas, for example, county officials are seeking to amend the state’s Freedom of Information Act to allow a records custodian to take up to 14 days to fulfill a records request if the official determine the request is “unduly burdensome.”
The officials say voluminous requests from a handful of requesters – not journalists – make it impossible to meet the FOIA’s current requirement that records be made immediately available or within three days if the records are in use or in storage.
The officials say a very few requesters ask for records that require them to “substantially and unreasonably divert” their staffs from the regular duties. These requests verge on harassment, the officials say, and the requesters don’t respond to the kind of negotiations for more time that most journalists accept.
The law prohibits public agencies from charging records requesters for staff time to find, retrieve or copy the records. Agencies are allowed to charge the actual cost of copying the records.
The state FOI Coalition has asked the officials to withdraw their bill and work with coalition members to arrive at a mutually acceptable solution.
In other states, pending legislation seeks to put other stumbling blocks in the way of citizens who want access to public records, especially large requests.
In New Hampshire, a letter writing effort by the New England chapter of the Society of Professional Journalists helped table indefinitely a bill that would allow state agencies to charge an upfront fee for access to most public documents.
The New Hampshire bill would allow an agency to charge for the labor to retrieve and copy records, including the time spent redacting exempt information. The agency then could provide a requester an estimate of the time needed to respond and the cost.
The legislation also would allow the agency to require the requester to pay all or part of the cost before retrieving or copying the records.
“The bill, if passed, would impede not only the media’s, but the taxpaying public’s ability to hold their elected representatives and public servants [accountable],” said a statement from New England SPJ President Danielle McLean and SPJ Region 1 Director Rebecca Baker.
Across the county, according to an AP Sunshine Week report, state agencies throw out egregious cost estimates on retrieval and copying of obviously public records.
Some of the costs may be legitimate (if requested records are stored in offsite servers and require extensive redacting, for example), but the long history of recalcitrant and secretive public officials – from governors to former secretaries of state – makes it hard for journalists and citizens to trust the validity of the price tags. Plus, many citizens resent what they see as being charged twice for information they’ve paid for with their taxes.
In Florida, which once had one of the best sunshine laws, higher education officials are following the example of universities in other states in trying to keep hidden from the public their searches for top administrators.
Identical Senate and House bills in the Sunshine State would create a public record exemption for information that identifies applicants for president, provost or dean of a state university of college and would exempt parts of meetings of governing bodies at which applicants would be vetted or identified.
“At no point is a list of applicants released, so we can’t know who is or isn’t applying,” said Barbara Petersen, president of Florida’s First Amendment Foundation.
Petersen and the foundation are concerned that the legislation sets a precedent: “If candidates for a university president position in Florida won’t apply because of our open government laws, the same holds true for all public positions – county administrators, city managers, school superintendents, etc. etc.
“And this legislation presumes that those who have served our universities and colleges since 1967 (when our sunshine law was enacted) weren’t and aren’t the best they could be.”
Taxpayers hopefully can see the faulty logic in the bill’s premise. Universities seem particularly adept at arguing for exemptions to state public-access laws, as evidenced in university president searches in Louisiana and other states in recent years.
Government agencies in Illinois are seeking to exempt themselves from being required to post public notices in newspapers. Under proposed legislation, local governments would be required to post public notices only on their own websites.
While this may sound like a step into the 21st century and progress, the bill poses a greater threat to the public’s ability to know what government is doing than many efforts to exempt specific records from sunshine laws.
It’s just too easy for a local government or official to hide information on their websites.
Not all of the legislative news is so fraught with threat to the public’s ability to know what government is doing.
In Colorado, for example, House Bill 1061 would prohibit records of municipal domestic violence convictions from being sealed. That would be good news for victims and the public.
Another Colorado bill (SB 83) would make private organizations that receive funding directly from governments on behalf of government employees subject to the state’s Open Records Act. That’s an issue that several states already have codified.
Unfortunately, that bill was postponed indefinitely in committee, a signal that usually means death for legislation.
In Arkansas, another bill that was withdrawn by its author had the noble goal of requiring closed-door sessions of local government to be recorded. If the bill had stopped at that, it might have earned the support of open-government advocates.