A new public records study commissioned by the Knight Foundation and released today during Sunshine Week outlines key problems seen by freedom of information experts in access to public records across the country.
The study goes into depth about barriers and synthesizes potential solutions to make open government laws work as intended and preserve the citizenry’s ability to get information.
The study was based on a survey and interviews with 336 freedom of information experts — from journalists to records custodians — and conducted by David Cuillier with the University of Arizona School of Journalism.
About half of the experts surveyed online reported that access to state and local records had gotten worse during the past four years, and nearly four in 10 saw a rise in denials for records.
The report concluded with four priorities: Increased collaboration between various interest groups across the nation to improve laws, strengthening enforcement of laws at the state level through legal reform and other methods, expanding education and advocacy, and developing digital technology to both organize open government supporters and aid government agencies in disseminating data online proactively.
Topping the list of problematic issues identified in the research were delays by government officials in responding to public records requests. Lack of enforcement of public records laws was second, and overuse of exemptions was third.
The survey listed 21 potential solutions to fixing FOI problems. Following are the most favored solutions and the percentage of respondents saying the solution is either very or extremely important.
Requiring attorney fee provisions, 80 percent — This means making changes to the law that would require governments that lose in court to pay the attorney fees of those who rightfully sought public records and won.
Adding fines / punishment to the laws, 77 percent—Governments and/or their employees that fail to follow procedures to release records would be fined or prosecuted for a criminal act. “We need to make real penalties for errant government officials who violate the FOIA,” said one respondent.
Advocacy to increase FOI support, 75 percent—This refers to public education and other methods of helping citizens understand why laws exist requiring freedom of information.
Alternatives to resolving disputes, 74 percent—These are methods that allow freedom of information disputes to be resolved quickly and without costly legal battles.
Tennessee does not have a mandatory fee provision in its law, but requires judges to award fees if they find the government entity was willful in wrongfully denying access to a public record. No fines or punishment exists in Tennessee for government entities who do not follow the law. Some states, including Florida and Colorado, which have mandatory attorney fee provisions, have seen recent efforts to eliminate or weaken that part of their law.
‘The system doesn’t work unless there is an attorney fee provision,’ said George Freeman, executive director of the Media Law Resource Center. Experts said this single addition to every public records law could do the most toward improving FOI: It would reward attorneys who successfully help citizens and community journalists who seek to use the laws, and dramatically reduce the litigation funds needed to be raised from the private sector or foundations. It would also make agencies, particularly small ones in rural communities, think twice before violating the law, which is often the case in states that already have such provisions.
The report suggested an organized effort across the country would be needed to integrate a fee provision in every single state, similar to a recent Student Press Law Center’s campaign to persuade legislatures to adopt laws protecting student journalists’ rights.
‘We need to get public agency people to take this seriously’
Legal reform to improve enforcement could also include penalties against government entities who do not follow the law.
More than 3 of 4 experts suggested that it is very or extremely important to incorporate stiffer penalties into all public record laws, such as Washington state’s law that allows a judge to impose a fine of up to $100 per day for each record not handed over. A U.S. FOIA amendment proposed in the House in 2016 would have resulted in employees being disciplined or fired for violating the law. Many public record laws already have codified legal repercussions, but they are rarely enforced.
‘We need to get public agency people to take this seriously,’ said Lucy Dalglish, former director of the Reporters Committee for Freedom of the Press and current dean of the University of Maryland Philip Merrill College of Journalism. ‘There have to be some benchmarks in the law or incentives. If you blow a deadline, then all fees are waived. If you declare information that has been opened is now closed, the agency has to pay a fine or employees lose their job. Sanctions for open record violations have to be related to money.’
The report also suggested increased funding for litigation could improve enforcement, and offered an idea for a state FOI litigation network.
The report also tracked advocates’ desire for more “proactive disclosure,” when government entities post more records and data online, or other groups acquire such information and build it out as a resource for the public. Experts also pointed to the need to improve government’s use of technology in general in responding to requests and making information available.
Better state-by-state information about FOI laws is needed, as well as strategic research and audits that identify key issues, the report said.