State watchdogs face challenges monitoring threats to open records laws

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January 8, 2010 | Day Eight Grasping the sunlight against an azure sky. Credit: rishibando on Flickr

In many states in the Union, the only watchdogs are volunteers who monitor bills as side projects and the editors of the local newspapers whose continued operations are under an existential threat.

“About 70 percent of our affiliates said that tracking their state legislature is a mission-critical role for them to play,” said Daniel Bevarly, the executive director of the National Freedom of Information Coalition (NFOIC), in an interview.  “The fight for freedom of information is at the state and local levels. A lot of [blocking of public information] starts with a bad bill.”

Changes to public records access, exemptions or policies can be “buried in other legislation, like a farm package, and on page 700, there’s this thing about increasing exemptions,” he explained.

That means FOI watchdogs must comb through every page of every filed bill.

“Florida and Maine require that when a bill is filed that affects freedom of information laws, it has to be pointed out at the onset,” said Bevarly, but “in many states it’s very, very challenging to track because of the way these get filed.

Sunlight’s OpenStates project, which has been spun out into an independent project, enables the public to search for and identify bills of concern for free. Services like FastCase provide paid legal research services.

Newspapers and state press associations also track legislation — or hire lobbyists to do so — but the the local newspaper industry has a money problem that will have an impact on their capacity to do accountability journalism — or exist.

Bevarly, whose groups connects open government advocates across 44 states, said there aren’t many other groups warding off potential legislative threats before they become law. He sees this work as under-appreciated, even by other, issue-oriented watchdog organizations that are dependent on open records laws to access information related to their causes.

A constant battle for the NFOIC is to keep information that officials wish to classify as private based on security concerns available to the public.

Take, for example, datasets about the age or structural integrity of tunnels and bridges.

“That’s the kind of data that’s very much in the public interest,” said Bevarly, “but agencies often deny that type of information because they consider that a security risk.”

The NFOIC also watches for bills that discourage access to public documents by increasing fees.

In Florida, one measure would change the awarding of attorneys’ fees for plantiffs who sue public agencies for withholding records. Currently, the law states that courts “shall assess and award” reasonable fees. The new bill would give judges discretion, thus making it financially riskier for attorneys to take such cases.

“It’s a really critical, fundamental change,” said Bevarly.

Looking at legislative trends around the country, Bevarly said that many bills introduced in recent years “are more political than practical.”

He’s seen a number of attempts to exempt names of law enforcement officers from court files, police reports, or disciplinary proceedings. Such efforts in New Jersey and Virginia failed last year, but one in West Virginia passed.

Politicians say it’s for security, though there’s no evidence, Bevarly observed. Such exemptions could have shielded many officers involved in police-brutality cases that riveted the country over the past few years. A hot issue for NFOIC is a spate of bills that seek to exempt footage from police body cameras.

A new frontier will likely have to do with social media, including cases of public agencies using third-party software, Bevarly predicts.

“If they’re not generating the data, well who is managing that data?”

Could the agencies access the data for release when required? What about the Twitter accounts of government contractors who are bound by freedom of information laws? How about public comments collected on Facebook?

“A lot comes down to the digital transformation that’s coming down,” said Bevarly. “It’s tough for public agencies to catch up – if they ever will.”

Where the Sunshine State is a national leader

Unless you’re talking about weird crimes or alligator attacks, it’s unusual to hear Florida described as the best at anything. When it comes to sunshine, that would be a mistake.

“We have probably the most progressive public records law and open meetings law in the country,” said Barbara Petersen, a Tallahassee-based attorney who runs the First Amendment Foundation, in an interview.

Florida’s sunshine laws dictate that “all state, county, and municipal records are open for personal inspection and copying by any person” and that meetings of two or more officials must be announced and open to the public.

“An agency can deny release of a record only if there is a specific statutory exemption,” Petersen explains.

Exemptions can only be created by state legislators – who haven’t been shy about asking for them. Petersen, whose organization tracks legislative threats to open government,  said there are already 1,122 public records exemptions on the books. At her latest count in mid-April, she had identified 112 similar bills pending in the current legislative session alone. Every day, she monitors their progress through the Florida House and Senate websites and scours new bills for new exemptions.

So how did Florida earn its status? A century of reform.

The state’s first open meeting and public records laws were enacted in 1905 and 1909, respectively. In 1968, new, stronger ones were implemented to counteract the influence of the so-called “Pork Chop gang,” a group of conservative Democrats who had a stranglehold over the legislature.

Furthermore, says Petersen, “we had a very broad interpretation of sunshine laws by the Florida Supreme Court.”

While the initial law stated that all meetings should be noticed and open to public, it didn’t define “meeting.” The court held that it meant a meeting of two or more officials. This year, one bill that Petersen is tracking – and opposing – seeks to define a meeting as three or more officials.

An amendment to the Florida constitution in 1992 stated that any bill asking for exemptions to public-records law must state the factual need for the exemption, be no broader than the stated purpose, and must be in bill all by itself, Petersen said.

“Prior to that going into effect, you’d see a 900-page bill related to the insurance regulations, and on page 217, it’d say, ‘and by the way, all records and meetings are exempt.”

Many such bills are now marked as “an act related to public records,” which makes them easier to track.

Petersen keeps a spreadsheet highlighting about 150 bills of concern and checks the house and senate websites to track them as they move through the legislature.

Some, the First Amendment Foundation supports. Others, it opposes.

“We always write letters [to leaders] saying, ‘This one could be amended,’ or ‘This so bad, you need to withdraw it.”

Currently, the four bills Peterson considers “really bad” include the aforementioned new definition of a meeting, and another exemption to hide the identity of anybody who witnesses a murder.

“The rationale, which is not supported by facts, is that witnesses don’t come forward because of public records law, which is ridiculous.”

Another “bad” bill would close records related to hiring for public university presidents, provosts, or dean. Politicians argue that quality candidates will not apply if their application is public.

“If that rationale applies to university presidents, why wouldn’t it apply to city managers or school board superintendents?” counters Petersen. “If this were to pass, we’d see an avalanche of similar exemptions.”

The last “really bad” bill exempts photos and videos that depict the killing of a person.

“On its face, it doesn’t sound awful — except that it defines the killing of a person to include anything that precedes or immediately follows a death,” said Peterson. “All of those cop-killing videos, [like the one of South Carolina’s Walter Scott], who was was running away when an officer shot him in the back, would be exempt.”

But the First Amendment Foundation stays neutral on a lot of bills, and even supports some.

Petersen sees some as well-intentioned but poorly executed, like one measure that sought to exempt soldiers’ personal information for their safety –- “Like ISIS is making public records requests,” she quips — but required the creation of even more public records in the exemption process.

And ultimately, politicians can find ways around sunshine laws, with or without any bills. For instance, Florida governor Rick Scott notoriously avoids using email and text messages.

“You can’t make them create a public record,” Petersen sighed.

“We don’t get into trying to protect information from flowing into the hands of government, but if the government’s already got it, we support all efforts towards transparency and fighting to preserve access.”

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