Open government bills in Wyoming

There are three legislative proposals set to make government more transparent in Wyoming. One bill would require a response to Freedom of Information Act requests in three days. Currently, the Wyoming Sunshine Law does not specify response times.

Another proposed change would require courts to expedite cases involving public records requests, while the third bill would require government bodies to record executive sessions.

Forcing governments to comply to a time frame in answering public records requests is a great step towards more openness. Tightening response times for FOIA responses was one way Illinois dealt with its government transparency problems. And as far as recording executive sessions–what better way to ensure that all citizens have access to open government. Doing so would be in the spirit of the Wyoming Public Meeting Law.

Social media as a means of government communication

The National Association of State CIO’s published a study that concluded that social media is increasingly being seen as a way to better reach constituents. According to the report,

“state CIOs may recently have found themselves unblocking YouTube to allow greetings from public officials or Flickr to mount photos of a bridge opening or to document some other important announcement. CIOs may not have been immediately convinced of the business value of these tools as they entered the workplace, but the fact is that this is how effective governments are communicating now, and this is not just a fad.” (emphasis mine)

I think it’s great that governments are taking the initiative in making themselves more available to constituents. I always think, however, that the most important consideration when moving into social media is transparency. Can you FOIA tweets? Will your public official do work through Facebook messages?

Jason Stverak, the president of the Franklin Center for Government and Public Integrity, notes that social media may be a way for some officials to evade transparency. Public records laws only cover archivable material, and social media doesn’t work that way. Transparency is always an important consideration to remember when talking about the communications of public officials.

Cool note: The Transportation Security Administration, known widely just as “TSA,” used an internal wiki to collect the ideas and opinions of employees. Sunshine Review knows a thing or two about wikis.

In Virginia, your “sacred” “right to know” isn’t respected

Reason Magazine’s Radley Balko draws attention to secrecy at the Fairfax County, Alexandria, and Arlington Police Departments.

The Fairfax, Alexandria, and Arlington police departments are among the least transparent in the country. Their application of the Virginia Freedom of Information Act allows them to turn down nearly all requests for information, as was made clear by a series of reports by reporter Michael Pope.

There is obviously something wrong here. With Freedom of Information Acts, the presumption should be on disclosure. Unlike some instances of information withholding, the officials of these departments seem to be well aware of the fact that they are infringing on citizens’ right to information. Their attitude says it all, according to Balko:

Police were not only stingy with information; they were smug and arrogant about it. When asked why she couldn’t release the name of a Virginia police officer who shot and killed an unarmed man last November, Fairfax County police spokeswoman Mary Ann Jennings replied, “What does the name of an officer give the public in terms of information and disclosure? I’d be curious to know why they want the name of an officer.”

The attitude of the spokeswoman is completely opposed to citizens’ rights. There are exemptions to the Freedom of Information Acts (FOIA), and there are instances where the case can be made for withholding information.

But the department isn’t making a case. It is claiming its authority as an excuse to keep information that is public by its nature secret, such as a public official’s name, because it can. And it doesn’t have to answer to you.

There’s more information to better paint the attitude of these departments:

After [reporter Michael] Pope’s first article on the lack of disclosure, Alexandria Commonwealth’s Attorney Randolph Sengel, the city’s elected chief prosecutor, responded with a sneering, condescending letter to the editor brimming with contempt for outsiders who try to hold law enforcement agencies accountable. “Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system,” Sengel wrote. “Conscientious and dedicated judges, prosecutors, public defenders, and law enforcement officers work in a system which is as transparent as it needs to be…The sacred ‘right of the public to know’ is still (barely) governed by standards of reasonableness and civility.”

The “right of the public to know” is in quotes.

The public does have a right to know. And this right is, basically, sacred. The government is directly accountable to taxpayers. While checks are in place within to make sure public bodies act ethically, the most important check is the ability we have as citizens to demand answers from the people we pay to look after our interests.

Here’s hoping the hard work of Virginia reporters, like Mr. Pope, continues shining light on irresponsible police departments’.

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.

WI Supreme court to determine if public employees’ personal emails fall under public records law

The Wisconsin Supreme Court will consider on Friday whether personal emails of public employees that are maintained on publicly-owned computers are subject to disclosure under the public records law in Schill v. Wisconsin Rapids School District.

Schill started in April 2007 when private citizen Don Bubolz decided he wanted access to non-work emails of five teachers in Wisconsin Rapids School District during a period in 2007. He requested all emails sent from the computers of those teachers.

The district’s computer use policy allowed its teachers and other employees to use the district’s email for occasional personal use. District employees were advised that the district owns not only the computers, but the email accounts used by the employees.

The Wisconsin Rapids School District concluded that the emails constituted public records because they were maintained on a public computer network. The teachers sought to block the release of their personal emails. The circuit court denied the injunction and ordered the district to release all of the personal and work-related emails.

The Supreme Court will decide whether the personal emails are “records” under the public records law. There is apparently no published case in Wisconsin that addresses whether purely personal emails kept on a public computers constitute public records under the statute.

If the emails are found to fall under the public records law, the Supreme Court will have to decide whether the presumption of disclosure will outweigh the public interest in protecting privacy, a balance that can be hard to strike.

Government sues itself for public records

That is essentially what is happening in Bexar County, Texas. Commissioner Tommy Adkisson has refused to hand over e-mails discussing public information from his personal e-mail account. This is after the Attorney General ruled that he must release the e-mails the San Antonio Express-News who had first submitted the open-record request back in February.

Adkisson says that he is appealing the ruling because he believe the newspaper is penalizing him for being opposed to toll roads.

“I think you’ve crossed the line between where I have some expectation of privacy and where you believe the public interest is,” Adkisson said. “I just believe that it has been one hugely intrusive episode by the Express-News.”

However, the AG has remained consistant the public information remains public even from personal e-mail accounts. If Adkisson wins the appeal, it has the potential to create a large loophole for government officials to avoid records requests.

“Privacy” as information blocking: Howell schools and union e-mails

Chetly Zarko, a Michigan citizen, filed a Michigan Freedom of Information Act request in 2007 asking for thousands of Howell teacher e-mails in order to investigate the occurence of taxpayer-funded lobbying.

The Michigan Court of Appeals determined in January that the messages are not public records under the state Freedom of Information Act, overturning a decision from a Livingston County judge in 2008.

The court’s logic is stunning, stating that the nonexistence of e-mail at the time of the drafting of the public records law confuses the issue. Although e-mail did not exist at the time, the spirit of the public records law remains the same. The Basic Intent of the law reads:

The Freedom of Information Act regulates and sets requirements for the disclosure of public records by all “public bodies” in the state.

No where is there a mention of the type of mediums this information will be created or sent through, nor does it have a paper-specific definition of “public record,” nor is there any reason to believe that new technology will confuse the law or create a need for clarification. The law is clear: public bodies must disclose public records.

The Howell Education Association teachers’ union leadership stated that the case is not an issue of open government, but one of privacy:

“We believe the protection of privacy rights is fundamental to the American way, and we were confident our understanding of the law would be upheld [...] Rights of this sort are too important to leave undefended.”

The HEA filed suit against Howell Public Schools in 2007 after the district released some of the e-mails Zarko requested. Apparently, the content in the e-mails that makes the HEA so sensitive to privacy matters relates to “union matters.”

Privacy in the lives of private citizens is important. But when it comes to employees of the state, there is no privacy—there is either secrecy or transparency. If the e-mails are to be considered private, then they should have happened outside of the teachers’ working hours and from a non-work address.

The interests of taxpayers are more important than the interests of a school union. Here’s hoping Chetly Zarko’s appeal is heard through ears more sympathetic to the public good and open government.