Disclaimer: The opinions expressed by the guest blogger and those providing comments are theirs alone and do not reflect the opinions of the Sunlight Foundation or any employee thereof. Sunlight Foundation is not responsible for the accuracy of any of the information within the guest blog.

Florida has been known to have some of the most impressive open government practices. But a few recent changes threatened to shake the people’s foundation of their right to know. Our guest blogger Barbara Petersen is here today to share the Sunshine State’s new initiatives on opening up their government. Barbara is the President of the First Amendment Foundation  a private not-for profit in Tallahassee Florida which acts as an advocate for the public’s right to oversee it’s government.

Two weeks ago, Florida’s Governor Rick Scott held a press conference, announcing the launch of an ambitious project that will allow online access to much of his email correspondence and that of 11 members of his leadership team.  Project Sunburst.

According to a press release from the Governor’s Press Office, the emails will be available with search capabilities.  Project Sunburst requires that all emails sent or received by the Governor and the designated staffers be posted to the Sunburst website within seven days.  The goal, however, is posting within 24 hours of receipt or transmission, and the Governor has plans to expand the program to include other agencies within the executive branch. The launch of Project Sunburst is one of a number of Governor Scott’s transparency initiatives – a second website, FloridahasARightToKnow  launched last year, provides access to state employee salary information and state pensions of $100,000 per year or more.  The state employee information is extremely useful, providing the name of the employee, the name of the employing agency, and the employee’s annual salary and number of years employed.  The pension information is relatively worthless in comparison – the database lists each state agency and the number of employees with pensions of more than $100,000 but provides little information that would help identify the employee.

 

Many of the Scott’s detractors claim that his transparency initiatives have more to do with the Governor’s political agenda – reducing the state work force and driving down the cost of government pensions – than a desire to be held accountable.  Regardless, the transparency website, like Project Sunburst, allows for easy and free access to information that is regularly requested through routine public record requests and sets a very positive example for other state agencies and local governments – if the governor can provide online access to regularly requested records, then why can’t a school board or county commission? In the first months of the Scott administration, his Office of Open Government reported a steep increase in the number of public record requests, particularly requests from the media for the email correspondence of the governor’s top staff.  In an attempt to alleviate the workload and improve access, the First Amendment Foundation, worked with the Capitol press corps and OOG staff to devise a plan under which FAF would make weekly requests for the email correspondence of five members of the Governor’s staff; once obtained by FAF, the email records would be dumped in a DropBox, and everyone given the key. Had it only been so simple.

 

FAF dutifully made the first request on March 7, 2011, requesting all email correspondence sent or received by the Governor, his chief of staff, and the five staffers. At about the same time FAF started making its public records requests, the governor’s office announced a “cost recovery” policy for public records. Under the new policy, OOG staff would respond to each public record request with an invoice estimating the cost of providing the records; once the invoice was paid (by cash or check, credit cards not accepted), the requested records would be produced.  There would be no charge for records requests costing less than $5.  What seemed like a reasonable policy at first blush turned into the public access nightmare from hell, and because of the time it took to track requests – nearly all were provided in pieces, a few one week, the remainder months later – and the costs associated with obtaining access, FAF was forced to abandon its project after only two months.

 

We received most of the records requested that first week within a fairly reasonable period of time and at no cost.  There was one glaring example, however: it took two months and cost $788.84 to obtain about 1,100 emails from the Governor’s communications director.  According to the invoice, the staffer took an hour to review 100 emails at an hourly rate of $70.87/hour – the communications director made $147,400 per year, and FAF was charged for the 11 hours it took him to retrieve and review his emails, many of which were on his personal email account.  (In another instance, we were charged the hourly rate for a top staffer who made just over $200,000 a year or $96.64 an hour.) FAF made eight requests in all, paid about $4,000 to obtain the requested emails, and received the last batch of the records in December – ten months after the final request was made.  Ultimately, the Governor agreed to refund the costs charged for those records it took longer than 60 days to obtain and, most importantly, made important revisions to his original cost recovery policy. Project Sunburst alleviates many of the problems FAF encountered and is, in all respects, a huge step forward for the Sunshine State.  The devil, of course, is in the details.  According to the May 3 press release, emails containing exempt information will not be posted, but will be provided pursuant to a public record request (with the exempt information redacted).  It seems, then, that we will need to continue to make regular public record requests for those emails and, of course, for the email correspondence of those staffers not included in Project Sunburst. Regardless, Governor Rick Scott deserves to be commended and hopefully, others in government, both in Florida and around the country, will follow his example.

(Below are the First Amendment public records request timeline)

A timeline of Public Records Requests by the First Amendment Foundation to the Governor of Florida's Office

All is not well in the Aloha state. “Sunshine” advocates including Rep. Barbara Marumoto are rising up to oppose a recent attack on Hawaii’s open government. A new bill that was introduced earlier this year is set to intentionally delay responses to public records requests. SB2858 “Creates a process for an agency to obtain judicial review of a decision made by the Office of Information Practices relating to the Sunshine Law or the Uniform Information Practices Act, and clarifies standard of review.” In other words the bill ironically referred to as “relating to open government” instead takes a jab at everything open and has been likened to a closed government bill.

In summary, SB2858 will make it more difficult for the public and media to find out what is going on in state government by:

• Delaying the release of information under the Uniform Information Practices Act.
• Forcing the public to spend money on legal fees in order to access data which should be made available in the first place.
• Giving agencies the freedom to challenge an Office of Information Practices (OIP) ruling in court.
• Setting state agencies in opposition against each other in a bid to comply with practices within the Uniform Information Practices Act.

It goes without say that if this bill is approved, Hawaii’s history of maintaining a decent record in keeping an open government will be tainted. Worse, we will have no idea what the government is doing and when it is doing what it’s doing -- unless of course if we are willing to go to court to find out. Effective July 1, 2030, the anti transparency bill sadly has the support of Gov. Neil Ambercrombie who is already said to be a secretive governor.

Allowing government agencies such as Hawaii’s Department of Land and Natural Resources (a supporter of the bill) to appeal unfavorable Office of Information Practices rulings -- as this bill proposes to do -- shows that government is clearly putting their own first and the public second. Hawaii’s legislature has a Submit Online Testimony where the public can send in their testimonies and hopefully convince everyone involved that this bill is bad for transparency -- just as Common Cause Hawaii did.

 

Common Cause Hawaii Testimony on SB2858

News Without Transparency-10 Million Fine on Red Cross Highlights Its Troubled History of Blood Services

Policy Intern Cassandra LaRussa researched and wrote this post.

In February, ProPublica reported on an almost $10 million fine imposed on the Red Cross by the Food and Drug Administration. The article highlights several safety violations including the following:

• Red Cross “offices have been chronically understaffed, and simply haven’t been able to carry out their required functions in a timely or effective manner”
• Red Cross “failed to follow written procedures, such as the case of a phlebotomist in Arizona who stuck herself with a needle before sticking a donor with the same needle to draw blood”
• Red Cross “failed to review records of donors who had bad reactions, such as a sixteen year old girl who lost consciousness and fell to the floor after giving a unit of blood”

Each of these, and many other violations, are outlined in the FDA’s Adverse Determination Letter to the Red Cross that was accessed via the FDA Office of Regulatory Affairs FOIA Electronic Reading Room on the FDA’s website. It is unlikely that ProPublica would have information about the specific violations that led to the monetary penalties without access to this letter.

The Electronic Freedom of Information Act Amendments of 1996 required electronic reading rooms contain documents in the public interest. The FDA sites the following guidelines for deciding which documents will be made available in the reading rooms:

"We are making these records publicly available either (1) proactively at our discretion or

(2) because they are "frequently requested" per the Electronic Freedom of Information Act Amendments of 1996."

While the FDA determined that the “Adverse Determination Letter to the Red Cross” should be public, either through actual or anticipated requests, there is no legislative or agency requirement that the letter must be available to the public. Additionally, the requirements for making documents public are vague and they don’t guarantee that all documents that are of public interest – like ones similar to the letter to the Red Cross — will be placed in the reading rooms.

According to the 2010 FDA Transparency Initiative Report, documents are proactively posted in the Electronic Reading Room “when a high level of public interest is anticipated.” In addition, the report explains that the “FDA may post in the ORA Electronic Reading Room ‘frequently requested’ inspection reports as defined by the Electronic Freedom of Information Act Amendments of 1996.”

These amendments to FOIA attempt to clarify what documents will be placed in an electronic reading room.

"(D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and

(E) a general index of the records referred to under subparagraph (D)”

---

"The News Without Transparency" shows you what the news would look like without public access to information. Laws and regulations that force the government to make the data it has publicly available are absolutely vital, along with services that take that raw data and make it easy for reporters to write sentences like the ones we've redacted in the piece above. If you have an article you'd like us to put through the redaction machine, please send us an email at mbuck@sunlightfoundation.com.

While journalistic skill and technique are essential for writing a good investigative article, we often take it for granted that journalists have access to the information they need to write complex news stories. Without publicly available data, much of our news would not be possible. We've been looking at investigative articles as part of an ongoing series called "Back to the Source" for the last several months. Now we've decided to amp it up a bit and make redacted visuals to explicitly demonstrate how little the public would know without laws and regulations that force the government to make the data it has publicly available.

In honor of Sunshine Week we decided to create "The News Without Transparency." We took original investigative articles and manually blacked out all the information that would not be known without existing transparency measures. It is worth taking a look at just how little we would know.

Some examples we found notable are below, and the ongoing series is available here.

The News Without Transparency: Military Defense Contractors, Lobbyists Support Mrs. McKeon

The News Without Transparency: Pentagon Contractors Flock to Mrs. McKeon

Military defense contractors and lobbyists are rushing to support the wife of Congressional House Armed Services Committee Chairman Buck McKeon in her bid for California state assembly, according to a Salon article in early February.

This article would not have been possible without public access to campaign finance and lobbying data.

The article reports that in the first few months of fundraising, Patricia McKeon was able to collect $19,200 from defense contractors or their lobbyists. This includes $3,000 from Lockheed Martin - a company currently locked in a battle to maintain funding for the F-35 Joint Strike Fighter jet. It also includes donations from lobbying firm Beau Boulter LLC, which lobbies on behalf of Proxy Aviations, and Bruce Leftwich, a DC-based government affairs specialist.

The California Secretary of State's website provides campaign finance data for all candidates running for public office, including Patricia McKeon's. The data can be searched by contributions received or made, expenditures made, late and high dollar contributions, and late independent expenditures. The contributions listed on Mrs. McKeon's disclosure page include the following...

Click here to read the full text of our analysis.

The News Without Transparency: U.S. Approved Business With Blacklisted Nations

The News Without Transparency: U.S. Approves Business With Blacklisted Nations

The New York Times published an article in December 2010 investigating the U.S. government’s approval of American companies doing business with countries blacklisted for sponsoring terrorism, such as Iran. According to the article, the Treasury Department has granted almost 10,000 licenses for business deals involving these blacklisted nations, some of which were impacted by political influence.

In addition to good reporting, the public availability of data was essential to making this such a meaningful investigative piece. That said, much of the underlying data for this article was hard to obtain, and the article itself says that even after the Times filed a FOIA request, “The process took three years, and the government heavily redacted many documents. . . ”

We investigated and have highlighted what data is publicly available and what data isn’t, but in some cases can be obtained through FOIA.

The article highlights how much less business the United States did with Iran than China or Europe did, pointing out that “…in the first quarter of this year, 0.02 percent of American exports went to Iran.” The U.S. Census Bureau provides monthly and annual datasets detailing American foreign trade, which provides information such as the data point used in the article. The annual report for 2010 is available here and can be viewed as a PDF or as a zip file for text or excel formats.

Click here to read our full analysis of the data behind this article

The News Without Transparency: Obama Rewards Campaign Contributors

The News Without Transparency: Obama Rewards Campaign Contributors

An in-depth analysis of Obama's 2008 campaign contributors conducted by iWatch News in 2011 determined that in certain circumstances major bundlers ended up receiving appointments to key White House positions, invitations to White House events, and stimulus money awarded through contracts. This analysis required a high level of investigative journalism skill, but would not have been possible without public access to several data sources.

The iWatch analysis frequently returns to the story of Donald H. Gips, a Colorado businessman and bundler for Obama. His story provides a useful frame for illustrating the data sources that provided essential information for this piece.

The article states that Gips bundled over $500,000 for Obama in 2008.  Presidential candidates are not required to report their bundlers, but both Obama and McCain chose to do so in 2008. The Center for Responsive Politics makes available the list from 2008 as well as a list of 2012 bundlers for those candidates who have chosen to disclose. While the candidate usually only discloses the name of the bundler, CRP adds value by including additional information such as the total amount contributed, the name of the bundler, the city and state, and employer. The information also contains the total amount the bundler has contributed him or herself to the specified candidate since 1990. Bundlers are additionally broken down by industry. A search for Gips shows that he bundled over $500,000 in 2008 and has individually donated $32,391 since 1990.

Click here to read the full text of our analysis.

The News Without Transparency: $52 Steaks on Menu as AT&T Feted Lawmakers During T-Mobile Push

The News Without Transparency: $52 Steaks on Menu as AT&T Feted Lawmakers During T-Mobile Push

The proposed AT&T/T-Mobile merger dominated the news in Washington last fall. It caused quite the stir, with numerous outlets reporting on AT&T's massive lobbying efforts to push through the merger. Bloomberg was one such news outlet, reporting a story of expensive steaks and 'lobbyist's libations' in early September. The story focused on the numerous swanky fundraisers AT&T was hosting as well as their generous campaign donations to key lawmakers.

This was a detailed investigative piece that involved a good deal of skilled journalism. It would not have been possible without public access to campaign finance data and lobbying disclosure information.

The article begins describing the lavish fundraisers AT&T had been hosting for lawmakers, citing Sunlight's Party Time data. Sunlight's Party Time data is free and available for anyone to use. We manually collect fundraiser and event invitations and put them online. They are searchable by a variety of of criteria including committee, leadership PAC, beneficiary, host, and venue.

Click here to read the full text of our analysis.

This Sunshine Week is bringing in a series of remarkable citizens around the nation -- showing us that everyone can demand for open government from our leaders. Here today to share his one-man experience in opening up the City of Atlanta, is our guest blogger Matthew Cardinale. Matthew is the News Editor and Founder of the Atlanta Progressive News and a North American Correspondent for the Inter-Press Service.

Atlanta has had three names in its history: Marthasville, Terminus, and Atlanta.  My friend Jill and I joked that Terminus sounded like a more appropriate name to describe the City of Atlanta and their Law Department, with their endless financial resources, that is, courtesy of the taxpayers.  I guess it was because it sounded more cold and bureaucratic, more ruthless, evocative of the Terminator, evocative of Goliath.

I never intended to take on Terminus.  Actually, at the time I was trying to build relationships with newly elected Council Members and to strengthen relationships with incumbent Members.  So much for that!

I was concerned about efforts by Councilwoman Joyce Sheperd (District 12), newly appointed Chairperson of the Community Development/Human Resources (CD/HR) Committee, to limit public comment.  She had instituted an unprecedented five minute time limit at CD/HR and was one of several Council Members pushing for the Council to adopt a uniform rule to limit public comment in all seven Committees.  Currently, each Committee Chair has discretion to adopt their own rules, subject to being overruled by the Committee.

I think many of us concerned citizens were blindsided when at the Council Retreat at the Georgia Aquarium, while at lunch, Committee on Council Chairwoman Felicia Moore (District 9) took a so-called straw poll of members as to whether they wanted the Committee to draft a uniform rule. Seven Council Members voted yea; eight voted nay.

All I wanted to know was how everyone voted!

So I called Felicia Moore and asked her.  She said they didn’t record how the individual Council Members voted because they didn’t consider it an actual vote.  She said it was a straw poll because it wasn’t a vote on legislation; it was a vote on whether to draft legislation.

I requested a copy of the minutes of the Retreat from the Municipal Clerk, Rhonda Dauphin Johnson, and upon receiving them, noted the minutes merely said that Moore had led a discussion and that it was determined the Council was in favor of keeping the current rules.

So, then I looked up the law.  I found OCGA 50-14-1(e)(2), a section of the Georgia Open Meetings Act, said that the minutes shall record all motions and “other proposals.”  I then told Moore and the Committee that the secret vote was a vote on an “other proposal.”Moore repeatedly insisted it wasn’t a secret vote, because as she said, “You can’t take a secret vote at an open meeting.”  I replied if it wasn’t a secret, to tell us how everyone voted!

At that point, Moore sought the opinion of the Law Department.  Senior Assistant City Attorney Kristen Denius provided an opinion that stated that because it was not a roll call vote, that the vote details did not have to be recorded. I then pointed to another provision in the statute regarding non-roll call votes.

OCGA 50-14-1(e)(2): “In the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.”

I said, don’t you see that for non-roll call votes it said you must list the names of the persons voting against the proposal or abstaining?  I then said I was considering filing a lawsuit.  At that point, Moore said to go ahead and whatever I felt was necessary, but that she would not be asking the Clerk to ask Council Members how they voted.

So, at that point I had already threatened to file a lawsuit. Unfortunately, I was not successful in finding an attorney willing to take on my case on contingency.  So, I had to sue without one.  Of course, if you threaten to sue and don’t do it, then your threat has no value in the future.  So I had to sue pro se.

Before doing so, I warned Council Members that I would also be seeking criminal misdemeanor fines against them in their personal capacities.  I asked all fifteen Council Members for their individual votes, promising not to seek fines against them if they told me how they individually voted.  After a continuous campaign, nine disclosed their votes, while six refused. So, I ended up suing the City of Atlanta, the secret six, Moore, Council President Ceasar Mitchell, and Clerk Johnson.

As a journalist, I already had some experience reading legal documents and felt comfortable with the basic outlines of the legal process.

Matthew Cardinale outside Atlanta City Hall: Photo credit by Joeff Davis

My friend Dwanda used Google to find two lawsuits filed under the Freedom of Information Act (FOIA).  I used one of them as a template for my initial Complaint.  I simply changed the facts that occurred, the parties, the venue, the causes of action, the relief sought, and of course the laws referenced, from FOIA to the Georgia Open Meetings Act (OMA).I filed my pro se lawsuit in May 2010 in Fulton County Superior Court and the case was assigned to Judge Christopher Brasher.

The City filed a Motion to Dismiss for failure to state a claim upon which relief could be granted. They said that because the OMA did not require the listing of the names except in cases of a roll-call vote, that even if my allegations were all true, that they did not break the law. I filed discovery, including several Interrogatories upon several Council Members and the Municipal Clerk.  I filed a reply to their Motion to Dismiss.

Then, I was shocked when, in August 2010, Judge Brasher granted their Motion to Dismiss.

Brasher ruled the statute did not state that the minutes had to list the names of those voting against the proposal or abstaining, merely that we had to assume the vote was unanimous if those names were not listed.  So go ahead, he basically said, assume the vote was unanimous!

However, the vote, we already knew, was split, seven to eight, so the ruling was forcing us to assume something that wasn’t true.So in October 2010, I appealed to the Court of Appeals of Georgia.  An attorney who was giving me advice up until that point warned me not to appeal, said I would set bad case law, said that my chances of prevailing were slim, and asked whether I wanted to spend two to three years on this.

I argued, and cited case law, that a court should look beyond the literal language of a statute when a literal construction would lead to absurdity.  I argued that the Act should be interpreted broadly, in favor of openness, consistent with the intent of the Act. I found two scholarly journal articles in two different law school journals that wrote about the intent of the Act at the time of its passage in 1988, and cited these as well. Unfortunately, the Court of Appeals ruled against me in February 2011.  This time, even the Georgia First Amendment Foundation advised me against wasting my time on appealing.

But I filed a Petition for Certiorari to the Supreme Court of Georgia in March 2011, which they granted--a rare accomplishment in itself-- in July 2011.  I made oral arguments before the Supreme Court in October 2011, which are available online here

I filed a Supplemental Brief in November 2011. Then, in February 2012, the Supreme Court ruled in my favor, that the names of those voting against or abstaining do have to be listed in the case of a non-roll call vote

This was such a great day.  I held a press conference on the steps of City Hall, and got to go down to the Council Meeting, which was being held that day, to tell them about themselves. There are so many aspects to this victory.  Not only are secret votes now banned across the entire State of Georgia, but my case sets strong case law that the Act must be construed broadly in favor of openness.

The ruling also lets ordinary citizens know that there is an Open Meetings Act, and an Open Records Act, that gives them the mechanisms to hold elected officials accountable, and that if they just engage the process provided by the Act, sometimes they can win, even without an attorney.

I had another victory last week when on March 05, 2012, the Council adopted a resolution to amend the minutes of the February 2010 Council Retreat to list the names of those voting yea and those voting nay. That was awesome; a bit anticlimactic for the impact of the action in comparison to the two year struggle it took to make them take the action, but it was pretty cool that I basically forced them to do something they really, really did not want to do.

As it stands now, the case is in remittur back to the trial court, via theCourt of Appeals.  The Court of Appeals currently has it and says it may not have time to deal with it for another few weeks or months. When it arrives back at the trial court, I hope for a speedy resolution.  I have asked the City to contact me regarding a possible Consent Decree, but have not heard from them as of yet. I also have a second lawsuit against the City for a variety of Open Meetings and Open Records violations that is currently pending in Fulton County Superior Court.

I’m currently in the process of applying to Law Schools and am waiting to hear back about possibly beginning Law School this Fall Semester 2012. I hope to eventually be able to help citizens across the State of Georgia who require an attorney represent them in Court.

I also have a more long-term project that I am interested in pursuing which is to develop a website to help more ordinary citizens in Georgia to file their own pro se lawsuits.  There are so many lessons I learned that I would like to share with others so that, frankly, they do not have to make some of the same mistakes I did.  And so they won’t have to learn everything from scratch.

Earlier this afternoon the Department of Justice and Attorney General Eric Holder celebrated Sunshine Week by highlighting the federal government's progress "in realizing the promise of the Freedom of Information Act." Holder and four additional speakers pointed out what they called positive steps taken in 2011 to reduce request backlogs, improve processes, and operate under a "presumption of openness." This positive news was tempered by today's Associated Press report that indicates that the federal government is still struggling with FOIA backlogs.

In touting the Department's accomplishments, Holder  looked toward the future and presented some improvements to FOIA currently being instituted by the DOJ. He announced  the DOJ will start posting monthly logs of FOIA requests made to senior leadership offices. The logs will "publicly identify the subject matter and disposition of each request" in an attempt to make it easier for people to locate information they are interested in. The department is also working on a new way for the public to submit and track FOIA requests to the DOJ's senior leadership online.

Additionally, the department is rolling out two new tools in an attempt to make FOIA.gov more responsive; a simplified government-wide search function and an integrated FOIA request process.

Four speakers from across the federal government joined Holder and touted the progress their offices made on FOIA issues

• Carolyn Colvin, Deputy Commissioner at the Social Security Administration, spoke to the SSA's successful implementation of a FOIA Process Evaluation Working Group, which helped improve efficiency.
• Austin Schlick, General Counsel and Chief FOIA Officer at the FCC, highlighted the overhauled FCC website and greater online access to Commission information.
• Darren Ash, CIO and Chief FOIA Officer at the Nuclear Regulatory Commission, described the NRC's efforts to deal with a surge of FOIA requests following the tsunami and nuclear crisis in Japan last year.
• Robert Howarth, Deputy Director of Correspondence, Document Production and FOIA Management at the Department of Interior, detailed a reorganization of FOIA leadership at the DOI.

Attorney General Holder's full remarks can be read here.

Update: The National Security Archive has responded to Holder's speech. They strongly criticize the Attorney General for citing discredited statistics in his remarks. They also note that the DOJ has attempted to issue reductive regulations, waged a "war on leakers", and increasingly relied on several exemptions throughout Holder's tenure. The National Security Archive recently awarded the Department of Justice their Rosemary Award for worst open government performance by a federal agency in 2011.

Policy Fellow Matt Rumsey wrote this post. 

Today, the Kentucky House State Government Committee will (if it hasn't already) be hearing HB 496 -- a bill we talked about earlier, to deliberate on next steps. Guest blogger Logan Morford the Vice-President of Transparency at the Bluegrass Institute for Public Policy Solutions is stressing how this attack on transparency will affect everyone.

Representative Johnny Bell is sponsoring a bill in the 2012 Kentucky General Assembly that would exclude private companies who take public funds from being subject to the Kentucky Open Records Act. The argument is that these private companies are being over-burdened with legal costs associated with records requests related to their activities with public money.

I am all for protecting the rights of private businesses but if a private business accepts taxpayer money they have to know that different rules apply. The path of public money has to be transparent because transparency is the first step in citizens holding government accountable.

This attack on transparency could have serious repercussions for citizens, journalists, and government watchdog groups that seek to root out fraud, waste, and abuse in government. With Kentucky’s current budget problems, the ability to scrutinize every single dollar spent must remain intact. This responsibility falls to citizens, journalists, and government watchdog groups using the Kentucky Open Records Act because proactive disclosure by the state or those using state money is not something that can be counted on. We’ve seen the power of sunshine laws in Kentucky as they have revealed:

• That Governor Steve Beshear promised Kentuckians he would do a comprehensive efficiency study to reduce waste in state government. That didn’t happen..
• Fraud and abuse in quasi-government agencies.
• State spending statistics that show how out of control Kentucky really is.
• The evaluation system for school district superintendents is broken and often rewards failure.

Sunshine laws are vitally important to accountability for taxpayer dollars. Any attempt to limit the ability of citizens to see how their money is spent should be put under a microscope and examined very carefully. The road toward transparency is hard enough without having to backpedal and re-fight battles that have already been won.

A timely post by our guest blogger Charlie Leck on the state of FOI in Minnesota. Earlier, Charlie wrote about the IPAD proposed bill and has since actively participated in state brainstorm meetings about the bill so he is back to offer conclusions and insights on how it's going to affect FOI in Minnesota -- in a good way.

At least, digging for government information doesn’t get any more difficult in Minnesota!

Freedom of Information Day in Minnesota will be celebrated up here on March 23. The John R. Finnegan Award will be presented and awarding-winning columnist Amy Goodman will speak. The ceremony is at 4 p.m. at the Hennepin County Library in Minneapolis (in Pohlad Hall). Goodman’s appearance is sponsored by the Minnesota Coalition on Government Information (MNCogi).

 Proposed changes in the Minnesota Freedom of Information Act are before the Legislature

In Minnesota, the Freedom of Information Act (FOIA) is called the Data Practices Act and it is administered by a state agency called the Information Policy Analysis Division (IPAD). In January, the organizations that are concerned about the individual’s rights to secure government information got a little nervous when IPAD announced that they were supporting a legislative proposal to amend our current law.

The established procedure up here for securing information from state government isn’t an easy one. It can sometimes take months and for an individual, with no staff resources, it can sometimes severely test one’s patience and mental toughness. So, I, as merely an interested individual who recognizes the vital importance of freedom of information to the whole democratic process, began watching the procedure closely and I nervously awaited IPAD’s initial drafts of the legislation. So did the major non-profit organizations and foundations that are concerned with this vital part of the democratic system.

Hats off to IPAD for making the procedure of following this legislative revision very easy! They provided regular updates to “stake holders” about what was happening and, very early, they made the suggested revisions available. They also held public workshops that allowed organizations and individuals to provide in-put. IPAD’s major concern was to hold the line on the cost of providing such information to the curious public. Budget concerns have been emphasized in Minnesota, as they have nearly everywhere, by the weaknesses in the economy.

Most think the IPAD revisions are going to work and will make the process of securing information quite a bit easier. Taking into account the current technology, the process of securing information will now be able to take advantage of on-line services. In other words, we’ll be able to get the information we seek on-line and/or in PDF formats. And, there will not be any of the expensive, and sometimes prohibitive, copying and production charges paid for “paper” copies when, instead, we secure that information on-line. That’s all the current legislative revisions amount to.

If you want to take a look at the law as it currently reads and the text of the revisions they can be found here (underlined items are the revisions).

The bill has not yet been passed. It is currently in the hearing process and will likely be voted on soon.

To make things easier for you, below is the text of the brief changes, all of which will be tacked on to the end of the current law…

(continuation of Section 1 of current law)… The responsible authority or designee of a government entity may comply with a request for inspection or copies of public government data, in whole or in part, by providing a link or links to a specific Web site that contains the requested data online. A government entity may only use this paragraph to comply with a request to inspect and/or copy government data if all of the following conditions are met: data are classified as public;

(2) data already exist online or are placed online immediately or within ten business days of the request;

(3) data are on a currently available and online public Web site;

(4) the responsible authority or designee provides links and instructions to each individual requester so that the requested data are easily accessible;

(5) other data not provided according to this paragraph and the government entity's response time to the data request are consistent with the requirements of sections 13.03 and 13.04; and

(6) no fee is charged for access to the data online.

(h) Upon request, a government entity that complies with a data request according to paragraph

(g) must inform the data requester if the online data are maintained in another electronic format and provide reasonable access to the alternative electronic

3.17 format through e-mail or another electronic delivery method. No fee may be charged for

3.18 providing the data in an alternative electronic format under this paragraph.

State Freedom of Information laws are in the limelight again. This time from Minnesota. The state's proposed revision's on FOIA have bloggers writing about the importance of accessing government data before a crisis happens. Charles Leck offers his view on how the state's proposal on what constitutes as public data may affect access to information in Minnesota.  He was also invited to attend a meeting (happening today) about the revisions and will give us an update. You can read his blog at ad astra.

Many ordinary citizens, like I, don’t really understand the importance of accessibility to public documents and information; we don’t understand, that is, until, in a crisis, we really need to get our hands on information squirreled away in the dungeon-like depths of government archives.

There is some rumbling over in the State Legislature about revising or altering one of Minnesota’s most important laws, the Data Practices Act – or the Freedom of Information Act (FIOA). That's cause for concern and it should make many of us sit up and take notice. I don’t think we should allow any changes that would make securing public information any more difficult than it all ready is.

Currently, this process of securing government data information goes through the Information Policy Analysis Division (with Apple’s forgiveness, it’s known as IPAD). The current director of that division of state government is Laurie Beyer-Kropuenske. The operation falls under the state’s Department of Administration.

Current state law defines Government Data as: “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.”

Though the act does not require the data to be maintained in a particular form or format, it is required that the data be “easily accessible for convenient use.” (Minn. Stat. § 13.03, subd. 1)

FOIA requests shouldn’t be seen as a political tool of either the right or the left or, for that matter, the center. They come from everywhere and they are often viewed (and sometimes correctly) as threatening and as attempts to censor.

However, our ability to get at important information in government files is crucial to the process of Democracy – and crucial to the process of protecting and maintaining our rights as free citizens. To repeat myself, the last thing we want are changes to our current law that would make that process more difficult for Joe Blow citizens.

IPAD appears to be pushing for some changes, however, and they argue that the changes are necessary in light of recent budget cuts aimed at “streamlining government operations.”

RED FLAG! RED FLAG! Some of the proposals that IPAD is floating around the State Legislature might redefine what is to be regarded as public data and also changes the procedures that would be followed in applying for and securing such data. Naturally, IPAD argues that the procedures would create a more precisely defined law and make the procedures more efficient.

I’d want to make sure “if I was you” (as my old man used to say). And, if I were you and you live in Minnesota, I’d suggest you start communicating with your State Representative and State Senator right now and ask them to be wary of any changes that might make the procedure of securing public information more complicated. I’m going to send a draft of this blog on to both State Representative Steve Smith and State Senator Gen Olson, my representatives over at the capitol.

It’s already too difficult to secure information. The popular, veteran, and now retired newsman, Don Shelby, wrote in a MinnPost column last April that he “had a career batting average of about .150” on his FOIA filings. “Most of what I wanted to get at, I was told, ‘was none of my business.”

In case you don’t know what a 150 batting average is, it means you have success 1.5 out of every 20 times you come to bat. That’s not very good in one’s attempt to secure information that should be considered public. And, Shelby is not just an ordinary citizen like I am. He’s very familiar with the ins and outs of the current law and its procedures. He also had staff available to wait out the delays that IPAD can create for an applicant.

We simply should not consider changes that would diminish even more the access that is granted to public information. In fact, we ought to be going the other way with FOIA and making access less complicated.

Beyer-Kropuenske claims that IPAD is seeking a public discussion about the policy proposals – proposals, she says, that aren't even written into a proposed bill yet. Nevertheless, she calls the draft that is now circulating, according to Politics in Minnesota (1), a “preliminary proposal that is likely to be introduced this session.”

The IPAD Director is particularly interested in a variety of stakeholders (League of Minnesota Cities and Minnesota Coalition on Government Information). An open meeting was held in December and organizations like the Minnesota Newspaper Association had a representative there. It’s sad, however, that ordinary guys don’t get information about the meeting and we can’t easily get our hands on a copy of the proposed changes.

Even Common Cause of Minnesota, an organization I consider primary in representing my own interests in such matters, heard about the meeting after-the-fact.

A red flag, as far as I’m concerned (having not seen the document) is that a former IPAD director is concerned about it. Donald Gemberling was IPAD’s director for a very long period of time and he now serves as a spokesman and treasurer for the Minnesota Coalition on Government Information (MnCOGI). He alerts us to the fact that the government, under the proposal, could sit on a public data request for six months under certain circumstances.

The proposal also calls for the removal of elected officials from the personnel section of the data law. Currently rules regarding how state legislators and senators should be treated have been up to each body. That, I think, makes them much more accountable to the general public in terms of how they define themselves. A blanket change in the law that defines legislators as “private” would not be wise at all.

At this point, I’m very concerned about just who the director of IPAD considers stakeholders in this matter. There should be many more organizations included in her list and I think members of the press should be included in notices about such “open” meetings. I’d jump at the chance to be included myself. And, I have sent an email to IPAD requesting a copy of the proposals that have been made available to others  that Beyer-Kropuenske considers “stakeholders.” (see copy below)

(1)   Horwath, Justin: IPAD floats proposed changes to public information law [Politics in Minnesota, 13 January 2012]

IPAD Policy Bill Overview

The News Without Transparency: Records not so Open with Obama

The Department of Justice’s recently proposed changes for the way it executes Freedom of Information Act requests have inspired a flurry of media attention from various news outlets and criticism from government watchdogs.

The groups criticizing the DOJ, which includes the Sunlight Foundation, are concerned that the new rules are too restrictive and threaten the federal law’s usefulness and fairness to the regular citizens and journalists it is meant to serve.

Here at Sunlight, we compared the new and old regulations, and discussed how the changes would be a huge step back for transparency. But we’re not the only organization writing about FOIA problems and setbacks. The backlog of FOIA requests and agencies taking much longer than allowed by the statute to fill requests are examples of the frequently discussed issues over the past few years.

Based on data gathered by government entities responsible for collection of FOIA statistics, and despite the presidential promise to do better, it appears things have only gotten worse. In March 2010 the Associated Press assessed how well President Obama's promises to comply more fully with FOIA had been carried out after a year.

The article found that agencies were more frequently citing exemptions to avoid complying with requests. Similarly, in July 2011 iWatch News vented frustration with the State Department for neglecting to respond to FOIA requests for four years.

These articles, as well as others that look at the administration's compliance with FOIA, frequently begin with holding agency practices to the standard set by President Obama's memo to the heads of executive departments and agencies. The memo states, "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails." The text of this memo is available from the Briefing Room on WhiteHouse.gov. It is located under "Presidential Memoranda" under January 2009.

In general, agencies are required to submit annual reports detailing their interaction with FOIA requests. FOIA.gov links to At-a-Glance reports that highlight the major findings from each agency. FOIA.gov also allows you to search the data submitted as part of agency reports and create acustom-made report. The Office of Information Policy also generates specific reports to emphasize interesting FOIA statistics.

The AP article states that agencies cited the "deliberative process" exemption - one that the president's memo specifically directed agencies to avoid using so frequently - 70,779 times in 2009. This is up from the 47,395 times it was cited under George W. Bush in 2008.

The article also states that agencies overall cited exemptions at least 466,872 times in 2009, again up from 312,683 times in 2008. Meanwhile requests are declining, down by 11 percent - 493,610 in 2008 to 444,924 in 2009.

The AP also claims that the "majority of agencies - 12 out of the 17, or 70 percent of those surveyed - increased FOIA requests granted in full, in part or both."

On what could be a positive note for the administration,  the AP notes that the number of backlogged requests had dropped from 124,019 in 2008 to 67,764 in 2009.

These facts and statistics about the number of FOIA requests filed and completed can be found using the "Advanced Report" function on the FOIA website. This function allows you to select the specific data you would like included in your report as well as which agencies you would like included in a comparison. Unlike the basic report function, "all agencies" is an option using this tool. Specific data choices include exemptions, requests, appeals, processing time, requests granted, and backlog.

Much of this information could also be obtained by looking individually at each agency's annual report. The AP article only looked at 17 agencies, but the FOIA data tool allows you to look at many more if you so choose.

The iWatch News story states that for the State Department, "the median response for complex FOIA requests is 228 days." The State Department makes available its annual FOIA reports from 1998 through the present. The 2010 report provides the statistic used in the article.

The story also states that for fiscal year 2012 the State Department has requested "$166,000 in new money to depend the department in FOIA-related lawsuits." The department's budget requests are available from 2002 through the present. The 2012 "Department of State Operations Congressional Budget Justification" includes the numbers cited in the article.

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"The News Without Transparency" shows you what the news would look like without public access to information. Laws and regulations that force the government to make the data it has publicly available are absolutely vital, along with services that take that raw data and make it easy for reporters to write sentences like the ones we've redacted in the piece above. If you have an article you'd like us to put through the redaction machine, please send us an email at mbuck@sunlightfoundation.com.