Wisconsin AG embraces open government, says editorial

A recent editorial praises Wisconsin for its open government–in particular, the attitude of of Attorney General J.B. Van Hollen.

The author of the piece notes that the Attorney General Van Hollen has actively worked to improve citizen access to and understanding of public records and public meetings.

He has the right attitude towards open government, too, writing “A citizen’s access to public records and meetings of governmental bodies is a vital aspect of this principle [of 'government of the people, by the people, for the people…'].” The Department of Justice website hosts a video of the DOJ’s 2009 public records seminar, and the DOJ is offering a series of free seminars and video conferences to promote public awareness of and compliance with Wisconsin’s open meetings and public records laws. (These can be found here.)

According to Sunshine Review, the state of Wisconsin does extremely well on the material it discloses online. We give Wisconsin’s website an “A+” transparency grade, which means it posts all of the items we recommend on our 10 point transparency checklist. At the local level, however, Wisconsin counties only get a “D” transparency grade average.

What are your experiences with transparency in Wisconsin?

The deliberative process exemption of FOIA

One exemption to the Freedom of Information Act (FOIA) is the deliberative process exemption. Matter relating to the “deliberative processes” of government can be exempt from public records disclosure.

Deliberative processes include opinions or recommendations in the course of making decisions that apply to official government functions (like policy or legislation). To qualify for the privilege, records must be both predecisional (they must precede a final decision) and deliberative (they must be opinions or recommendations). Things like processing forms and paying accounts, purely procedural, administrative processes of an agency, are not part of its deliberative processes.

The privilege is meant to protect the “candid and frank discussions” of government employees and prevents them from being second-guessed constantly by interested outside parties. The privilege is also sometimes claimed to avoid confusing the public about the way a decision was reached.

While the justifications for having the exemption seem justified, it is considered on of the most often abused FOIA exemptions. Government Technology, a magazine on government best practices, saw the exemption in 1996 as “self-serving, [protecting] most of the records which really reveal the process of government, and [...] invoked often as a knee-jerk reaction to a request.”

But that article has more than a problem with the application of the exemption. The justifications for it are on shaky ground:

It is hard to fathom that a competent government employee would be so embarrassed or upset that his or her analytical work was disclosed to the public that it would cause that employee to be less candid in the future. It is difficult to believe that most staff members are so unsure of what they have to say, or so timid about expressing themselves, that public disclosure would force the process of government to grind to a halt.

The author of that article requested a Justice Department report on proposed changes to FOIA, and after several legal battles, he was granted the file. With half of the pages redacted. The reason? Deliberative process exemption. He tried requesting again under the Clinton administration, a more FOIA-friendly organization, and was granted the full report. After reading through it, the author was confused:

When I leafed through the report I wondered why in the world we had wasted so much time litigating over it. The information originally deleted was cut-and-dry legal analysis. This is certainly no criticism of the attorney who prepared it, but it was not a scintillating novel approach to the law. The attorney was not expressing any “candor” or “frank discussion.” It was as routine as one could possibly imagine. No secrets, no nothing.

This anecdotal experience certainly justifies the belief that using deliberative process as ground for an exemption is a knee-jerk reaction when governments get an information request.

When is this exemption justified? I’d love to hear from you about cases you’ve been involved with or have followed where there was a need to keep deliberative, decisional information private. Let me know or join Sunshine Review and WikiFOIA on Twitter this Friday from 2-3 EST at #FOIAchat, our weekly chat on public records and open meetings issues. On Friday, we’ll be talking about the deliberative process exemption specifically, so come share your thoughts or join us to learn more about it.

Freedom of Information Act (FOIA): How to use it for your personal benefit

Last Summer and Fall, Sunshine Review had a “Back-to-School” project where we sent FOIA’s to certain school districts in Florida. We requested contracts between the school system and all lobbyists, among other lobbying information.

We encouraged you to get involved. We provided much briefer FOIA instructions and urged you to write or call your superintendent and request the teacher master schedule and the school’s checkbook register. This would give you context for your school’s workings, involve you in your local government, and test the responsiveness of your school district. Basically, the focus was on using FOIA to increase transparency and civic engagement.

The Chicago Tribune offers tips for submitting a Freedom of Information Act (FOIA) request. But unlike the sort of FOIA issues we focus on, this story is about the personal benefits open records laws give to individuals.

The Trib outlines a story where a self-described “geeked-out” records guy submitted information requests to local governments in order to get information to help him find his dream community. He asked:
*school districts for graduation rates, test scores and data on class sizes.
*police departments for crime statistics
*local governments for property tax rates.

When he was done with his public records search, Davis walked through the winning neighborhoods looking for “for sale” signs. He quickly found the house of his dreams. More than a decade later, he still lives there.

Other instances where knowledge of FOIAs can be helpful include a house search, doing battle with a health insurance company, or fighting a parking ticket.

Before you can start requesting, you’ll need to know how. The Trib recommends the following steps for beginning an information request:

1) Call the agency or government and just ask for the records.

If that fails, then move forward on filing a formal request.

2) Identify the agency you want information from and go to its Web site and look for a FOIA link.
3) If you can’t find a link, call the agency and ask where, and to whom, your request should be sent.

Once you have that information and start writing your request, be specific about the type of records you want is important, and write concisely. The author recommends keeping the request to one page: “The more words you put in an FOIA request, the more opportunities a lawyer for the agency has to deny you.” If legal jargon is uncomfortable for you, opt instead for a more casual tone.

If an agency denies your request? Appeal.

The article links to two FOIA letter generators provided by the The Student Press Law Center and The Reporters Committee for Freedom of the Press.

Other useful pages for when you write a FOIA request:
*State sunshine laws: This map will help you find your state’s open records laws
*State Open Meetings Laws:Information on different states’ open meeting laws, a corollary to open records laws.

We always hear that information is power. Even before you have that information, understanding how to get it can give you a new perspective on how to approach questions with confidence and the right tools. Let us know how you have used FOIA to better your life or the state of your community.

Supreme Court says Washington referenda ballot names are public

Washington state has resolved an issue with the help of the Supreme Court. Turns out referendum ballot names are public, after all.

Referendum 71 expanded the state domestic-partnership law to grant certain marriage benefits to gay couples. Anti-referendum citizens got the referendum back on the ballot for a vote, and pro-referendum citizens wanted names. Those who got the referendum back on the ballot sued to block the disclosure of those names.

The issue was whether disclosing the names of those who got the referendum back on the ballot would violate the signers’ First Amendment rights. This argument stated that public ballots would ultimately lead to a chilling effect on expression and civic involvement; votes on sensitive issues made public would lead to harassment of those who vote in unpopular ways. The other perspective was to note the legislative nature of voting on referenda. Legislating comes with the presumption of complete openness equal to the importance public votes in a legislature. In this view, referenda votes are public by their very nature.

The Supreme Court ruled that petition signers’ names are not private in an 8-1 decision, with Thomas dissenting.

Repeated themes stressed the significant flexibility of states to implement their own voting systems, the importance of preserving the integrity of the electoral process and the promotion of transparency and accountability in the electoral process.

The justices said the plaintiff, Protect Marriage Washington, had not made the case its petition signers were any more subject to harassment than petition signers on issues as potentially emotional as taxes and property rights. This was one of the major points of those fighting to keep names private: those supporting unpopular positions would be in peril if their privacy was not respected. This lack of security would severely hinder people’s ability to express themselves.

There was also the viewpoint that the actions of private citizens are not a part of transparency: transparency involves the actions of government made public, not the actions of citizens. However, since voting on referenda can be seen as akin to making legislation as noted above, it would be of utmost importance that the votes remain public.

“Remain” public: that was another part of the pro-disclosure argument back in April: petitioners’ names are available through the state’s open records act, the Washington Public Records Act. In essence, the names were already public.

The justices, while deciding that disclosure was necessary, told the plaintiffs they could go to a lower court to get a specific exemption on other grounds besides 1st amendment issues. The chief lawyer said they would do just that.

The balance between privacy and open government remains delicate, and the fact that the court left room for future exemptions begs the question: how much of referendum information will ultimately be deemed public, and how will these lines be drawn?

CORRECTION: One commenter notes: “The issue was not about anti-referendum VOTERS, but the names of those who signed the referendum petition to put it on the ballot. The VOTER information is still private.”

Open records, open meetings, open government

Over at the WikiFOIA blog, they’re talking about the pros and cons of open meetings:

This issue of justifying the recording of open meetings came up during one of our weekly Friday FOIA chats. During this chat, the participants of FOIA Friday also developed a laundry list of reasons most of which help to overcome the justifications of the Chicago area school boards [who have stopped posting meetings].

The blog includes a long list of reasons governments should archive their videos online. The reasons taken together should be enough to help governments overcome anxiety about making their meetings easily accessible.

Be sure to checkout WikiFOIA for updates on Freedom of Information Act issues and legislation. Also, join us on Twitter every Friday from 2-3 EST for #FOIAchat, our live conference on FOIA issues and the original source of the discussion on open meetings.

FOIA and text messages

Perhaps the immediately obvious effect of government transparency is transparency as a tool to battle corruption and to uncover unethical behavior.

Social media, the internet, and technology in general consistently change the scope of public records. So it makes sense that most people don’t consider text messages when using open records laws, since it is a relatively recent technological development.

Of course, many government officials use government-issued phones to fulfill their daily duties. And because of the casual nature of text messages, they can be particularly revealing as to the nature of relationships.

In Illinois, the Daily Herald was able to confirm suspicions that two Elgin police officers were breaking ethics rules by having a romantic relationship. They did this by requesting text messages exchanged between the officers’ phones. Being able to FOIA for those text messages, and the city’s ability to fulfil that request, was crucial to uncovering that scandal.

But not every city is able to provide those records. In Des Plaines, Illinois, the city mayor had to bar text messages between city employees after the city was unable to fulfill a FOIA request asking for text message records. Until the city figures out how to resolve that issue, communication must be in an archivable format. It makes sense for the mayor to take the issue seriously, because when questions of openness aren’t resolved locally, they will be resolved in other ways. In Pennsylvania, the Wind Gap requested text messages from police Chief Craig Armitage and in March of this year, Pennsylvania Office of Open Records has ruled that the borough must get a copy from its cell phone provider of a record with the text messages. Kudos to the Pennsylvania Office of Open Records for making the city accountable to its citizens. The borough originally responded that it did not keep such records. If no such text message record exists, the open records office ruled, the borough is required to provide an affidavit saying that.

There seems to be much that isn’t decided yet on the matter of open government and text messages, and it seems many governments aren’t prepared to make such records available. Please share any experiences or information you have regarding text messages and open records requests.

(I began researching the matter after joining today’s #FOIAchat, a live chat on Twitter every Friday from 2-3 pm EST. I’ve found it to be a thought-provoking, and it’s a great resource for speaking with open government advocates and FOIA experts.)

Maryland transparency woes?

Yesterday, I wrote about the strides being taken in improving Maryland’s transparency and integrating technology into the state’s plans. But Maryland doesn’t have a completely pristine record on the matter, according to some.

An editorial in the Washington Post this week called the transparency in Maryland “fake transparency.” The author of the editorial has experience with Anne Arundel, which he recognizes as having “an award-winning Web site [that] happily provides tons of noncontroversial information.” The author had experience with Maryland Public Information Act requests, and in turn faced intimidation and incompetence from the county’s staff on several ocassions. Another problem he noticed was very lax compliance to the Maryland Open Meetings Act, like the lack of a public notice to alert the public of special meetings and a lack of responsiveness from county officials when the problem was brought to their attention.

The Post article concludes with the recommendation that local governments adopt legislation similar to the federal Public Online Information Act of 2010, which would make all documents subject to a Public Information Act request be online and free to the public from the moment of their creation.

I’ve also written about Louisiana Governor Bobby Jindal’s mixed transparency record. The governor, like the state of Maryland, has some people lauding his transparency accomplishments, and others saying they are less than perfect. Apparently, his lack of follow-through on his transparency promises has landed Jindal the title of 4th Worst Governor in the Country. That is the consequence of not addressing transparency concerns.

Whether the problems found in Anne Arundel are generalizable to the rest of the state is yet to be determined. However, good transparency recommendations should be addressed, regardless of their premises. Our friends at the Sunlight Foundation have been saying Public = Online for awhile, the sentiment echoed by the Post editorial, and this may be the opportunity for Maryland to lead the way.

Should Illinois be worried about new FOIA proposals?

In January, Illinois passed a law that improved its FOIA, which needed improvements after allegations that secrecy was the rule in Illinois, openness the exception. The most conspicuous case was the University of Illinois not releasing information to the Chicago Tribune, making the Tribune sue the university for the information. Supported by the Attorney General, the law made it so that governments had 5 days to respond to a request and would penalize those that failed to do so.

But the improvements did not come without a fight with some law makers creating a weaker alternative to the new law. That effort has begun again: State Senator John Millner is sponsoring a plan that would significantly weaken the new FOIA in Illinois, according to critics. His proposal would:

-Broaden protections against disclosing personnel and disciplinary information.
-Cut down public access to law enforcement records if the information could hurt another department’s investigation
-Relieve government bodies from having to pay legal fees for successful lawsuits against them.

A proposal introduced by another state senator, Senator William Haine, would exempt law enforcement personnel’s performance evaluations from disclosure, as well. Lawmakers and Gov. Pat Quinn have already approved exempting teacher evaluations from disclosure.

The Illinois attorney general’s office, which was was strongly vocal about its support for the new law, said it’s too soon to change it.

But the new FOIA has critics on the House side, too. State Representative Sidney Mathias is working with the Illinois Municipal League, which opposed last year’s changes to access laws and is a taxpayer-funded lobbying association, to change requirements that may be “too burdensome,” especially requiring government bodies to reply to requests within five business days. He also would consider doing away with a provision that requires local governments to pay attorney fees if someone sues to get information and a court rules that information should be turned over, a similarity to Millner’s proposed changes.

According to Representative Mathias, its in citizens’ interest to place limits on the requirements of government to meet this law. “Who ultimately pays that? It’s the residents. So there’s got to be reasonable limitations on these requests, also.”

Still, it’s one thing to have frivolous spending going on in Illinois, and another thing to have spending that is justifiable. As far as protecting investigation and police officers, this is also an important priority. However, the presumption should be openness, and a denial of information must be justified. While a realistic law that doesn’t overly burden officials is important, the emphasis should be on the citizens and on providing information in a way that is beneficial to them, not on making life easy for public officials.

Oregon Attorney General has the right idea

Oregon Attorney General John Kroger is really taking transparency to heart. He’s taking part in a series of talks around the state that invite citizens and the media to suggest improvements to the state’s sunshine law.

The Attorney General is “very eager to hear people’s experiences and take input.” A great idea, since the one thing people want when they are upset or frustrated is a sympathetic ear. The people in attendance for this first talk were happy to have an outlet for their concerns, while a handful tried to point fingers about alleged corruption in the court system.

Still, the general feeling of the citizens in attendance was one of collaboration with the government. One citizen said “It’s not a matter of pointing fingers, it’s ‘let’s be as transparent as possible.’”

The talk went on in the same vein of constructive progress. Attendees made suggestions about how to improve Oregon’s law, including putting public records online, cutting fees and limiting what sometimes can be lengthy responses to public-record requests.

The attorney general’s office has taken several steps to promote government transparency. Kroger’s office has put public records and meetings manuals online, created a citizens guide to public records and meetings for laypersons, and has posted records requests online, among other things. A last step to improve Oregon’s law, according to Kroger, is to take suggestions from the public meetings to the Legislature.

This is exactly the type of personal initiative we believe in at Sunshine Review. Attorney General Kroger takes it one step further by actually asking to hear from people who have experience requesting information. And we think it pays off; the option is either becoming a transparent government voluntarily, or waiting too long until your legitimacy takes a hit and you’re forced to release information.

Louisiana Transparency: Still under construction

Although Louisiana has become Ground Zero for transparency progress, there is still a long way to go until state and local governments can really develop a reputation for clean and efficient government. After reading local LA news, I have a couple of suggestions for any public servant’s transparency “to do” list.

#1- Develop written procedures and guidelines for government credit cards BEFORE waste and theft occur. Audit statements monthly.

Example you should not follow: Mandeville Mayor Eddie Price has recently found himself in hot water (again) when an audit found he had misused his city credit card to purchase private vacations and other personal expenditures. Some city councilmen commented publicly that they had no knowledge these expenditures were taking place. My solution? Put all expenditures online for journalists, taxpayers, and even the city council members to scrutinize and take a proactive stance against corruption and sneaky spending with public funds.

#2- Give public information to the public, with or without request. No questions, no excuses.

Example you should not follow: Robert Morgan of TheTownTalk.com points out in a recent column that government employees often do not understand basic open records law, and may choose to delay the delivery of requested documents in error. Mr. Morgan names names in his article, citing examples from Rapides Parish Schools and the city of Alexandria.

I will continue to watch Louisiana’s media and new media for updates on how they are finding their way to the land of milk, honey, and open government.

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