Fixing FOI: Big ideas for a new era of transparency

Bring in the cats and dogs, and batten down the hatches: The forecast for government transparency calls for increasing clouds with a chance of heavy storms.

This year the John S. and James L. Knight Foundation commissioned me to study the state of freedom of information in the United States, where it’s going and what can be done to improve it. The first phase of the report, issued in March during National Sunshine Week, relied on a survey of 228 journalists and FOI experts, along with interviews with more than 100 other experts.

The findings weren’t entirely surprising, but they’re still critically important to journalism:

• Access to government records is worse today compared to four years ago, about half said. Only 13 percent said it’s gotten better, and 41 percent said it’s about the same.
• Nearly 4 out of 10 say they’ve seen a rise in public records request denials in the past four years.
• Nearly 9 out of 10 predicted access would get worse under the Trump administration.

The most pressing problem noted by study participants was long delays by agencies in responding to public record requests, followed by excessive redactions, agencies ignoring requests, and excessive copy and search fees.

Ted Bridis, an investigative reporter for The Associated Press, summed up the outlook for the years ahead under President Donald Trump: “I think it’s going to be a backyard brawl.”

While it’s too early to really know whether access to public records has gotten worse under the new administration, anecdotally it appears we are fast on our way to a more secretive America.

What is more important, though, is figuring out ways to improve FOI. Fortunately, a lot of smart people have some pretty good ideas.

FIX THE BROKEN PROCESS

Study respondents overwhelmingly said that public record laws and processes need an overhaul in several key areas:

• Pass attorney-fee provisions. While a bit wonkish, this solution was the most highly rated solution in the study and has perhaps the most significant potential impact on access throughout the nation.The idea is for state public record laws to require that the agency pay for the requester’s attorney fees when a requester sues for public records and prevails. In states that have such provisions, attorneys are more likely to step up and sue on behalf of a requester because they have a good shot at getting paid. News organizations are more likely to sue, as well, if they think they can get their attorney fees back.This, more than anything, would empower requesters to enforce the law without the need for litigation funds or legal expertise. We need a concerted effort to get these provisions passed in every state public record law, similar to how the Student Press Law Center is passing student press freedom legislation through its New Voices campaign.
• Create and enforce tough penalties. We need stiff penalties in the laws, such as in Washington state. There, a judge can impose a fine of up to $100 per day for each record illegally denied. A failed amendment to U.S. FOIA in 2016 by the House of Representatives would have resulted in employees being disciplined or fired for violating the law. Many public record laws already have legal repercussions for noncompliance, but they are rarely enforced.
  
• Provide alternative resolution. The system is stacked against the requester when it requires citizens to hire an attorney and go to court. In Connecticut, people can contact the Freedom of Information Commission to resolve disputes without going to court, and the commission can require agencies to cough up records. Mexico has a similar independent agency with teeth.Ohio has started experimenting with a system where denied requesters can file a complaint for $25 with the Court of Claims and get resolution without hiring an attorney or going to court. A television reporter from Cleveland was able to use this process to get disciplinary records out of City Hall.

EDUCATE AND EMPOWER

If citizens and politicians don’t support open government, and journalists and record custodians are unfamiliar with the laws, then freedom of information might just end up a farce or a tragedy, or perhaps both. Respondents provided ideas to prevent that:

• Train. Everyone — on both sides of the counter — needs to better understand how FOI works. The second-highest-ranked solution in the study was providing more training to record custodians. Even more important, fostering a culture of transparency in government could make significant strides toward proactive release of documents and data. Journalists reported that more training for requesters, as well, could even the playing field.
• Expand public education. Too often we forget that government gets a lot more public record requests from citizens than from journalists. Rarely does anyone help the average person learn what records are available and how to get them.Curriculum about FOI should be developed for K-12 and college courses, as it is required in the Mexican state of Sinaloa. Sunshine Week should be expanded year-round, state coalitions for open government should be better supported, and social media campaigns could spread the word, as we see elsewhere in the world. Check out, for example, the stunning public service FOI video made in India.
• Lobby and advocate. The Second Amendment has the National Rifle Association. Who lobbies for the First Amendment and FOI? Study respondents noted the need for educating politicians at the federal and state levels about freedom of information, including training of politicians and outright campaign contributions.Few nonprofits are positioned to do so, although SPJ is a 501(c)6, which enables it to lobby if it wishes. Building up SPJ’s endowed First Amendment Forever Fund could help, as well as teaming with good-government groups.

THINK FRESH

Perhaps the most interesting part of the study was the list of big ideas, new tech proposals and cross-cutting solutions that emerged from experts. This is where things could get interesting.

• Boost proactive disclosure. I dream of a world where having to request records is a failure of the system. Public records should be available online as they are immediately produced, with legally exempt materials redacted automatically.That isn’t too far away. Tom Johnson, former Region 9 director for SPJ, started “It’s the People’s Data” in New Mexico to do just that. He works with cities such as Santa Fe to help develop systems to post data online proactively.
• Build new tech tools. Develop partnerships with tech companies to create tools that will enhance FOI, such as a more streamlined searchable database of government databases; artificial intelligence that identifies public records useful to people and notifies interested parties; or a website/app called “Ask this!” that allows record custodians, fearful of leaking public records, to instead anonymously post suggestions for specific records that journalists should request. Traditional access groups and legacy media should create more partnerships with Google, Facebook and other companies to enhance records access.
• Create a constitutional “Right to Know.” Although unlikely in the near future, it would be great if the right to know were enshrined in the U.S. Constitution. It’s not that wacky; many nations, such as South Korea, have included FOI in their constitutions. It’s included in some of our state constitutions. The United Nations’ Universal Declaration of Human Rights has deemed access to information as a natural human right since 1948. Yet, it’s not in the U.S. Constitution, and the U.S. Supreme Court has been reluctant to interpret the right to public records as a First Amendment right. That needs to change.

Respondents provided dozens of other ideas, as well, including creating information taxing districts, spreading FOI through popular culture, piggybacking on the news credibility and media literacy movements, pooling fundraising expertise, and changing access terminology (e.g., call it a FOIA “order,” not a FOIA “request”). Some amazing ideas by amazing people.

So how do we make all this happen? We need to work together.

One of the most important takeaways from the research was the critical need for FOI groups to better coordinate. Organizations need to set aside their competitive nature and band together to develop useful research, monitor proposed legislative exemptions, expand litigation and push back against secrecy.

We have seen some of that over time — U.S. FOIA was passed in 1966 thanks to SPJ, ASNE and others banding together — and in the past year. But we need more. We need to bolster the National Freedom of Information Coalition, expand FOI law clinics, and create a sense of teamwork and trust.

For the next six months I will conduct the next phase of this Knight FOI study by focusing on the lay of the land in the FOI/journalism organizational world — to identify the key players and hubs, the connections, the gaps, the opportunities and the key elements of success. With any luck, we will have a better idea of how to work more effectively as a passionate collective of FOI fighters.

We have to succeed. In this day, with increasing secrecy and information control, FOI matters more than ever.

David Cuillier is director and associate professor of the University of Arizona School of Journalism and a former president and FOI chair for the Society of Professional Journalists. He is co-author with Charles Davis of “The Art of Access: Strategies for Acquiring Public Records.”

Tagged under: FOI

---