Michigan's FOIA problems and the solution

Pending bills to amend FOIA in Michigan would do little more than apply a few flimsy patches to an antiquated, tattered statute long overdue for a major overhaul.

The Michigan statute mandating public access to government records is flawed because it requires that written requests be made to an agency official with the de facto power to deny, delay or overprice the record requested.

Support FOIA reform that provides greater transparency through application of the latest records search technology, enabling information seekers to obtain records directly, i.e. without the assistance (or obstruction) of a government gatekeeper.

Many public officials, especially at the local level, complain about the cost and inconvenience of responding to FOIA requests. What those officials overlook (or hope we will overlook) is that, upon making a relatively small investment in software, most public records can be made available without cost or inconvenience simply by posting all non-exempt records online in searchable archives the moment they are created or acquired.

I suspect that it's not cost and inconvenience that raises the ire of some public officials so much as the fear that open access to government records will reveal foolishness, incompetence, wastefulness and crime. Perhaps an air of superiority and a sense of entitlement on the part of some public "servants" add to their aggravation.

The City of South Bend, Indiana, assisted by the Sunlight Foundation, has established a gold standard in transparency. It has enabled free, easy and direct public access to a remarkable catalog of city records.

This could be a model for open government, both at the local level and in state agencies. Take a close look at this outstanding achievement. It's worth considering for application across Michigan and throughout the country.

Crowd Fact-Checking, a Lesson from India

Rural and seasonal workers across India are guaranteed (as needed) 100 days a year of manual labor at minimum wage.

Years ago, some local officials claimed they were assigning work and paying workers, all the while embezzling funds and keeping the records secret.  Workers complained they were getting neither work nor pay.  They brought pressure under India’s Right to Information Law and eventually were allowed to view (but not have copies of) work and pay records.  

Some workers were able to copy the records surreptitiously. The records, purporting to show that specific individuals had worked and been paid, were revealed at public meetings and shown to be false.

Today, such government ledgers are painted on village walls where workers can determine for themselves the accuracy of the records.  Officials are fined if records are not made public on time.

In one Indian state where state officials support them, activists get local records and go through their village door to door to verify payments made, services rendered and the like.

Such social audits have uncovered instances where as much as 95 percent of funding had been embezzled from government programs.

Why couldn't a variation of this concept be applied just as successfully in more advanced countries, using the Internet?

 http://www.onthemedia.org/story/indias-right-information-law/transcript/

South Bend: Gold Standard in Transparency

The City of South Bend, Indiana, assisted by the Sunlight Foundation, has enabled free, easy and direct public access to a remarkable catalog of city records.   

By its mayor’s executive order last month (August, 2013), South Bend created an open data portal online.

South Bend’s policy implements and expands concepts in Indiana’s open records statutes.

This advance makes an extremely wide (and still expanding) range of information available in a user-friendly format.  It refrains from exemptions common in other jurisdictions.  The executive order also specifies the nature of the technology to be employed. 

The city’s IT specialists are directed to apply “best practices.”  The format is required to be “...any widely accepted, nonproprietary, searchable, platform-independent, machine-readable method...”

The city’s announcement quoted the software vendor (in part), “South Bend is joining an elite group of open data pioneers who are using the latest technologies to make public data more accessible and streamline collaboration between internal departments.”

This could be a model for open government everywhere, both at the local level and in state agencies.  Take a close look at this outstanding achievement.   I think it's worth endorsing for adoption throughout the country.

https://data.southbendin.gov/

http://sunlightfoundation.com/blog/2013/08/29/south-bend-indiana-signs-open-data-policy/

GAO says Fed FOIA hobbled by OGIS deficiencies

Government Accountability Office: Four years after it was established, the "Office of Government Information Services Has Begun Implementing Its Responsibilities, but Further Actions Are Needed" (GAO-13-650, Sep 10, 2013)

[Excerpt]

 

“Since its establishment in 2009, the Office of Government Information Services (OGIS) has provided comments on proposed Freedom of Information Act (FOIA) regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices. While OGIS has suggested improvements to a number of those regulations and notices, it has not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies' compliance with the law. In addition, since it was established 4 years ago, the office has not developed a methodology for conducting reviews of agencies' FOIA policies and procedures, or for compliance with FOIA requirements. OGIS is in the early stages of developing a methodology for conducting such reviews, but has not established a time frame for completion. Until OGIS establishes a methodology and time frame for proactively reviewing agencies' FOIA policies, procedures, and compliance, the office will not be positioned to effectively execute its responsibilities as required by the act.

“OGIS is providing mediation services and is resolving disputes that might otherwise go unresolved or lead to litigation, although not all of its efforts have been successful. OGIS has achieved positive results for about two-thirds of the cases reviewed by GAO where mediation services were provided. For example, in several cases, one or both parties took action or modified their position after OGIS's intervention. Nevertheless, the office lacks quantifiable goals and measures for its mediation activities, as required by law. For example, it does not have goals to measure timeliness or success. Without these important management tools, OGIS cannot determine how effectively its mediation services are in improving the implementation of FOIA.”

http://www.gao.gov/products/GAO-13-650

Government Records Search Technology

Many state statutes mandating public access to government records are flawed because they require that written requests be made to an agency official who has the de facto power to deny, delay or overprice the record requested.

Instead, all non-exempt government records should be posted online in searchable archives as soon as they are created or acquired.

We should insist on FOIA reform that provides greater transparency through application of the latest records search technology, enabling information seekers to obtain records directly, i.e. without the assistance (or obstruction) of a government gatekeeper. 

Agency officials often complain about the cost and inconvenience of responding to FOIA requests.  Well, the solution is at hand.  Of the many technology organizations that market records search mechanisms, some have free, open-source search engines to upgrade the FOIA process.

A good overview of current search technology can be found at New Idea Engineering.
 

It's long past time to update Freedom of Information laws so as to provide direct public access to government records.

FOIA officer lies to justify husband's no-bid contract

In Illinois recently, the husband of a bi-county agency FOIA officer was awarded a no-bid $124,000 contract with his wife's agency.  A local newspaper made a FOIA request to the agency for a copy of the agency's procurement rules.

The FOIA officer responded that “per consultation with legal counsel" there were no such rules.  Subsequently, however, the board chairman of one of the counties discovered that, indeed, there were procurement rules, including provisions for competitive bidding.

A second FOIA request revealed that the agency's administrator (the FOIA officer's boss) and the agency's attorney conspired to evade disclosing the pertinent rules.  

The administrator told the FOIA officer to deny the existence of procurement rules and, with knowledge that the rules did exist, the FOIA officer complied.

The county board chairman admonished the FOIA officer, “You have a duty to answer to the public in an honest fashion, and you didn’t do that. This is a bold-faced lie.”

This stuff happens, folks, and more often than most of us would like to think.  I don't know what, if anything, will come of this incident, but one thing is clear.  When people like the FOIA officer in this case, her boss and the agency's attorney spend some time behind bars for their criminal (this is classic RICO) deceit, these types of abuses will be less frequent.

UPDATE (9-19-13):  It is reported that the FOIA officer in question has announced that she will step down 9-27-13.  Also reported, there may have been other instances of fraud in the bi-county health department under scrutiny.  A forensic audit is anticipated.  
http://www.paxtonrecord.net/news/health/health-care/2013-09-17/health-department-foia-officertobacco-coordinator-resigns.html

Add to the NSA catalog of lame excuses

At the National Security Agency (NSA), secrecy is their business, so it's no surprise to me that they would resist FOIA requests, even though (theoretically) they work for us.  What does surprise me is how lame their excuses are when they block non-exempt FOIA disclosures.

Recently, there was a report that described how the agency denied a FOIA request by claiming the agency didn't have the capacity for keyword searches of emails between its own employees and others.  This from an agency that collects and can search for data in hundreds of millions of phone calls around the world.

Now, in another instance, NSA responded to an emailed FOIA request by contacting the requesting party to say that the agency couldn't find the requester's correct address.  (Can't make up stuff this ridiculous!)  Read on.

Atlantic Wire wrote, "It's possible we've been overly generous in our assessments of the intelligence gathering capabilities of the NSA. They would have responded to our FOIA request, you see, but they had the wrong address – and there was no way for them to get that address [as the agency had never heard of Google, apparently] but to email us and ask for it."

The article went on, quoting NSA, " ' This email is in response to your request submitted to the National Security Agency (NSA) Freedom of Information Act (FOIA) office. Your request letter, dated 10 June 2013, was received in our office on 1 July and assigned Case Number 72150. We mailed our response to your FOIA request on or about 11 July 2013.' "

The NSA quote continued, " ' However, the USPS returned our correspondence today, as a “Return to sender – Attempted Not Known – Unable to Forward.” Please provide your most current, complete address (apartment #, business name, suite #, floor # etc) so that we may resend our response to you.' "

Atlantic Wire says it had provided a valid USPS address in the first place, but had indicated that it would prefer to have the agency's response by email.

It looks to me like NSA is pretending to be taken in by its own misinformation.  Reminds me of the old Abbott and Costello comedy routine, "Who's on first?".

NSA Blames Its "Antiquated" System for Lack of Keyword Search

Shaun Waterman, reporting for the Washington Times in a story July 24, 2013 about an unsuccessful effort by ProPublica to get internal email records from the National Security Agency (NSA), wrote: 

"It is standard practice at most large organizations — not to mention a standard feature of most commercially available email systems — to be able to do bulk searches of employees’ email as part of internal investigations, discovery in legal cases or compliance exercises."

Mark Caramanica of the Reporters Committee for Freedom of the Press is quoted, “This is an agency that’s charged with monitoring millions of communications globally, and they can’t even track their own internal communications in response to a FOIA request.”

http://www.washingtontimes.com/news/2013/jul/24/nsas-archaic-email-hinders-keyword-searches-offici/#ixzz2a4NVujfh 

Everybody who believes NSA's excuse, please raise your hand.  Hmmm, don't see any hands.  Whether or not this particular excuse is valid, it is beyond question that agencies, state and federal, are slow in adopting emerging technology that would make agency records more easily available to the public.  It is equally certain that Congress and state legislatures aren't doing much to help. 

"Machine" developed to bolster FOIA Requests

“FOIA Machine” is a project of the Center for Investigative Reporting.  According to the Center’s announcement, the “machine” will be a service online to make it easier for citizens to acquire federal and state government records, as well as the records of 90 foreign governments that have open access laws.

The project began with a grant from the Knight Foundation.  Additional funds are being solicited on Kickstarter.  The original amount sought on Kickstarter was $17,500.  At this writing, approximately $36,000 has been pledged. Matching funds have been committed by the Reynolds Journalism Institute at the University of Missouri.  The funding period on Kickstarter ends August 16, 2013.

The FOIA Machine page on Kickstarter sets out the Center’s principles and goals, in part, as:

“We’re streamlining the complicated process of filing and tracking public record requests, putting all of the steps, rules, exceptions and best practices in one place and allowing users to track requests on dashboards, receive alerts, share request blueprints and get social support and expertise from the FOIA Machine community...

“...[W]e're asking for your help to finish development, improve design and pay for servers and data curation...

“We have 15 users currently sending real freedom of information requests through FOIA Machine, but almost 800 people are still waiting to use it. And when we launch, that number will grow...

“[The Center] has taken on FOIA Machine because we believe that journalism that moves citizens to action is an essential pillar of democracy. To correct injustices, people need to know what's really happening.  FOIA Machine is all about bringing previously hidden information to light."

When the project is ready for public participation, the Center says it will transfer the “machine”  to Investigative Reporters and Editors.

Michigan FOIA Panel on the Road

Over a three week period from mid-July to early August, representatives of the Center for Michigan, the Michigan Press Association, the Mackinac Center and the American Civil Liberties Union are conducting public panel discussions of the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA).  

Both statutes were intended to enable closer public scrutiny of government activity.  However, over the years both have been watered down in some instances and ignored in others.  There have been a number of legislative initiatives to reform FOIA and OMA recently, but nothing came of them. It's widely thought that greater citizen involvement is necessary to bring about meaningful change.

A press release announcing the panel discussions said, "Our state has valuable tools for holding public servants accountable but those tools are useless if people don’t know about them or don’t know how to use them."

The first such meeting was in Jackson.  The second will be in Grand Rapids on the Northwood University campus on July 24.  

The Traverse Area District Library in Traverse City will host the third discussion on August 1, and the fourth will be on August 7 in Troy at the Northwood University campus there.  

All are set to start at 6:00 p.m. and are scheduled to end around 8:00 p.m.

If you count yourself among the 10 percent who get things done in your community, your attendance at one of these panel discussions should be very beneficial.  

FOIA Reform Scams

I have an issue with the way news media present such rosy prospects for FOIA each year during Sunshine Week.  Year after year, optimism is based, not on new ideas to improve FOIA being enacted into law, but merely on a new bill with a short shelf life being introduced or reported out of committee.  

The ballyhoo over the Issa-Cummings FOIA implementation bill taken up by the U.S. House Oversight and Government Reform Committee just in time for this past Sunshine Week comes to mind.  Publicizing that is like awarding a soldier the Congressional Medal of Honor for telling what he might do in combat someday.

Just as bad or worse, news organizations downplay or ignore efforts to inhibit open government.  A recent example would be proposals put forward by the Michigan State Court Administrative Office.

In RICO cases, the cast of characters consists of three types: (1) racketeers, often con artists, (2) dupes exploited as false fronts and (3) victims.  Sunshine Week works in a similar fashion.  Legislators, press and public.

Let’s hope that annual celebrations by the press of wobbly legislative hints of reform haven’t become a meaningless ritual.  If next year’s Sunshine Week is going to be any different, now is the time to start planning for it.

Open Government: The Impossible Dream?

The head of the National Archives and Records Administration (NARA) in public testimony seven years ago admitted an arrangement between his organization and certain other federal agencies whereby formerly classified (secret) documents would be withdrawn again from public view for national security reasons.  The process for withdrawing the documents was to be conducted in secret, as well.

It was determined subsequently that upwards of one-third of the records which had been reclassified as secret didn't jeopardize national security at all.

Supposedly on the positive side, the National Declassification Center was created three years ago to oversee declassification of records throughout the government, including classified records that had been transferred to NARA.

But, in the meantime, we've learned that the government is recording information concerning our phone contacts, data from our Internet activities and to whom we send mail via the postal service.

If those examples are any indication, in terms of government abuses, the people get one step forward, then three steps back.  Sound a little like King George III?

Maybe all of us should read the Declaration of Independence again.

More evidence that AG Eric Holder neglects FOIA

Earlier this month, the Washington Free Beacon reported that the U.S. Department of Justice “...has not challenged a single instance of a federal agency withholding records from Freedom of Information (FOIA) requestors since 2009.”

The story, written by C.J. Ciaramella and published June 11, quotes a deputy assistant attorney general as saying that while DOJ’s “...Office of Information Policy gives guidance to other agencies on proper applications of FOIA exemptions, it has not determined that any of those exemptions were improper in four years.”

Citing George Washington University’s National Security Archive as a source, Ciaramella goes on to report that, since Attorney General Holder’s 2009 directive to agencies to employ a presumption in favor of disclosure, most agencies have ignored it.

http://freebeacon.com/doj-hasnt-found-one-improper-foia-exemption-since-2009/

Feds cited "privacy" for most FOIA denials last year.

The Investigative Reporting Workshop at the American University School of Communication reported June 20, 2013 that:

"[Federal] FOIA requests were denied under the privacy exemption in 2012 in more than 232,000 cases, or 53 percent of all requests, the highest level since the Sept. 11 terrorist attacks. Privacy exemptions include 'personnel and medical files and similar files' when the disclosure of such information 'would constitute a clearly unwarranted invasion of personal privacy' or protection for law enforcement information, the disclosure of which 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.' "

The law enforcement exemption came in second at 26 percent, and executive privilege was claimed 15 percent of the time.  National Security accounted for less than one percent of the denials.

http://investigativereportingworkshop.org/blogs/exemption-10/posts/2013/jun/20/freedom-information-act-requests-and-denials-climb/

Finding Software for Municipal FOIA Applications

Do any of you readers want to describe your experiences with municipal FOIA software?  Add a comment.  Below are several examples of software that I've seen mentioned recently:

 (1)

"Welcome to Minutes-On-Demand™

In an attempt to better serve the residents of the City of Southfield [MI], we have created a searching tool that will allow you to view AGENDAS and MINUTES of City Council. Not only will you be able to look at the current meeting information but you will be able to search past meetings for specific meeting detail. Meeting Minutes will be posted once they are approved by the Council Board."  http://southfieldcitymi.minutesondemand.com/

(2)

"Sonasoft Corp., a leader in enterprise-class email archiving, announces a special no-cost email archiving promotion to help U.S. city and county governments meet the demands from the Freedom of Information Acts (FOIA) and states’ Open Public Records Laws, such as OPRA (New Jersey) and CORA (Colorado), without taxing their resources or breaking their budgets. Through this offer, city and county governments are eligible to acquire SonaVault, Sonasoft’s Email Archiving Solution, free with the purchase of Sonasoft’s professional installation and the first-year’s maintenance contract. City and county governments can lock in their savings as long as they obtain an estimate on or before July 1, 2013, which is when this promotion ends."
http://www.prweb.com/releases/email-archiving/freedom-information-act/prweb10724359.htm

(3)

"With the right technology, agencies can locate and assemble documents for FOIA requests more efficiently and effectively. The Google Search Appliance connects to any data source, such as SharePoint, SQL, and Oracle databases, and Lotus Domino and Apache servers, to search files quickly. Users can type a phrase or words associated with the FOIA request and the Google Search Appliance will immediately begin compiling data that contains the information in the query. The Google Search Appliance can search over 250 of the most common file formats, and even crawls through geospatial databases, withdrawing data in minutes."

"Once all data has been located, the Google Search Appliance compiles the information into a single PDF, making it easier to review. The Google Search Appliance can be customized for a particular agency’s needs, including setting up parameters for the system to identify documents that meet FOIA exemptions and easily redact sensitive information."  http://www.business2community.com/strategy/the-key-to-responding-quickly-and-easily-to-foia-requests-0494218

Obama's FOIA schizophrenia

On June 16, 2013, Calvin Woodward of the Associated Press reported, inter alia:

"[President Obama] established a center devoted to declassifying records and making them public. He announced an open government initiative. Dizzying quantities of information poured into public databases. New ways were devised to show taxpayers how their money is spent. Allegiance was pledged to the rule of law."

Simultaneously, the Obama Administration "...prosecutes leakers like no administration before it. It exercises state-secrets privileges to quash court cases against it. It hides a vast array of directives and legal opinions underpinning government actions — not just intelligence and not all of it about national security."

http://www.boston.com/business/technology/2013/06/16/glasnost-the-potomac-under-obama-not-quite/zNpD9tuTrfsoVJWjaab1MK/story.html

One definition of schizophrenia is, "a state characterized by the coexistence of contradictory or incompatible elements."

The changing role of big city papers

Smaller news outlets seem to poke vulnerable or secretive government officials with a sharper stick than do the bigger ones.  One reason may be that large news organizations assume a greater role as "player" in big city politics.

In Detroit, for example, the big papers are invited to send representatives to public panels, roundtables and TV talk shows (sometimes as guests, sometimes as hosts) where  policy is influenced if not made.  As a result, objectivity begins to slip away.  Readers sense it.

Smaller news organizations may be closer to the rumors, outrage and skepticism heard on the street that fuel FOIA inquiries.

In January, the Free Press exposed a water department “integrity” officer on pension from Ann Arbor who was simultaneously employed in what were supposed to be full-time jobs in both Flint and Detroit.

http://www.freep.com/article/20130110/NEWS06/130110041/Detroit-Water-s-security-chief-Barnett-Jones-resigns-2nd-job-Flint-amid-questions

But after the Kilpatrick guilty verdict on March 11, that kind of scrutiny appears to have shifted.  

On March 21, it was a small paper that exposed how the water department was paying multiple consultants hourly fees ranging from $75 to $330, plus huge bar, restaurant and hotel tabs, not to mention airfare, parking fees at distant airports and car rentals.

http://michigancitizen.com/dwsd-pays-tab-for-wine-steaks-airfare-while-cutting-workforce/

Similarly, on April 21, Crain's had a scoop about the city foregoing millions in revenue for years.  Seems that the water department had neglected to collect a city-imposed tax on impervious surfaces (like roofs and parking lots), intended to discourage stormwater runoff, but now was demanding payment of those millions.

http://www.crainsdetroit.com/article/20130421/NEWS/304219970/surprise-runoff-fees-roil-detroit-biz

(If you haven't guessed by now, one of my interests is cataloging waste, misappropriation, bid rigging, bribery and extortion in the water department.  Those activities don’t necessarily end simply because one set of officials is headed for federal prison.  A prominent school district emergency manager who should know observed that, where unrepentant organizational culture clashes with a strategy of reform, culture always wins.)

Detroit's major papers, post-Kwame, seem to be pulling their punches in an effort to shore up the city's flagging image.  You can watch boosterism wax as investigative reporting wanes.  Boosterism (some would say propaganda)  doesn't require much from FOIA.

Ordinarily, we’d expect the high circulation papers in Detroit to take the lead in real FOIA reform, but don’t hold your breath.  It will take a concerted effort by all the other news outlets to offset the diminished interest of the large Detroit dailies.

Initiating dialogue with legislators about truly open access to public records would be a good start.

Motives for FOIA requests

What motivates FOIA inquiries?  Some requests seek to measure efficiency or integrity in government functions without regard to policy or politics.

Others are made to embarrass political enemies or challenge political ideology.

Another motive is to harass, antagonize or provoke a government official or group based on personal hostility without regard to politics, like a child teasing a chained dog.

Or it could be the desire to formulate, assess or promote policy.

It might be no more than to test the willingness of officials to comply with the statute. 

Are there any more?

It would help to be conscious of these distinctions when crafting FOIA legislation, FOIA appeals reform for example.

Seeking a better FOIA appeal process

There seems to be a perennial legislative urge throughout the states to tinker with aging Freedom of Information statutes.  One such impulse has to do with the appeal process.  It is acknowledged by some legislators that the public needs a simpler, less expensive, more accessible means of appeal.

Some have suggested that legislatures could insert a special FOIA court or commission between the first appeal (from a bureaucrat's decision about a disclosure issue to the bureaucrat's department head) and the appeal from the department head's ruling to a court of general jurisdiction (with all the attendant rules, procedures, crowded dockets and expense).

I favor another approach.  Many states have an administrative law system wherein special judges are assigned to the various state departments to resolve controversies between the department and outside parties challenging the department's authority.  My preference is to beef up the existing administrative law apparatus to accommodate intermediate FOIA appeals, rather than creating another layer of bureaucracy.

A new FOIA intermediate appeal process should have the following characteristics:

1)  Simplicity; short forms, abbreviated procedural rules, no appearances in person (everything on paper filed by email or postal service), but paperwork may be prepared by legal counsel.  These provisions relieve both sides of the burden of traveling long distances and curtail redundant argument.

2) Short, limited procedural steps, none exceeding 30 days, including the pendency of the judge's decision.  Examples:  the requester would have 30 days from receipt of the government's denial of disclosure (including the government's failure to make a timely response to the request and/or its claim that the record doesn't exist) in which to submit the appeal form; a further 30 days for the government's response; and no more than 15 days for an optional rebuttal.

3)  The only questions to be decided by the administrative law judge would be (a) whether the requester's description of the desired record was adequate, (b) whether a government delay was justified, (c) whether assessed costs were reasonable or (d) whether the record sought is exempt in whole or part.

4)  For each question resolved in whole or part in the requester's favor, the government would be required to pay the requester $1000.

5)  No appeal to a higher court could be taken until the administrative law process was completed.  A requester would have an appeal to a higher court as of right.  The government could appeal by leave of the higher court.

Bear in mind that provisions like these are no substitute for much more fundamental changes, such as instantaneous, searchable archiving online.

Michigan Legislature's circular path on outdated FOIA amendments

How do you explain the circular path to oblivion that recent proposals to amend Michigan FOIA seem to follow? 

It starts with reintroducing a bill that died in the previous session.  Lobbyists for agencies, municipalities and the like point out the unbearable burden FOIA has imposed.  After awhile, discussions and news coverage dwindle.  The bills slumber, the session ends and the bills expire.

Michigan Municipal League's Nikki Brown said recently that cities need the ability to recover the true costs of FOIA requests.  Her comments accentuate the red herring that opponents fall back on.  Our statute requires a written request, then a response after a search.  Officials decry the cost and inconvenience.

But, with a small investment in software, most public records can be made available without cost or inconvenience simply by posting them online in searchable archives as soon as they are created or acquired.

It's not cost and inconvenience that offends bureaucrats as much as the fear that open access will reveal foolishness, incompetence, wastefulness and crime.

Michigan's outmoded FOIA process needs major revisions to take advantage of new technology for open access to government records without officials playing a gatekeeper role.

USAG Eric Holder says one thing, does another

U.S. Attorney General Eric Holder began his administration of the Justice Department with a grand statement of intentions with regard to Freedom of Information. A Department press release on March 19, 2009 read in part:

WASHINGTON – Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency... 

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," said Attorney General Holder. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so...

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law...

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests...

 http://www.justice.gov/opa/pr/2009/March/09-ag-253.html

 USDOJ's Office of Information Policy in a FOIA post in 2009 stated (excerpt):

The combined impact of the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines is a sea change in the way transparency is viewed across the government. As a result of these directives there are now:
         * New approaches to responding to requests and to working with requesters.
         * New, more limited standards for defending agencies when they deny a FOIA request.
         * New requirements to maximize the use of technology to disclose information.
         * New requirements to post information online affirmatively, in advance of FOIA requests.
         * New focus on the broad array of agency personnel whose actions impact the FOIA.
         * New accountability requirements, particularly for agency Chief FOIA Officers who must report to the Department of Justice each year. 

 http://www.justice.gov/oip/foiapost/2009foiapost8.htm

But contrary to its lofty pronouncements early in the Obama Administration, USDOJ under Attorney General Holder has assumed an aggressive stance against government transparency.  On April 3, 2013, Kevin Gosztola reported on Firedoglake's "The Dissenter" (excerpts):

A federal appeals court in Washington, DC, rebuffed a clear attempt by the United States Justice Department to further pervert the Freedom of Information Act process...

Citizens for Responsibility and Ethics in Washington (CREW) sued the Federal Election Commission (FEC) on May 24, 2011, when it failed to produce documents on individuals at the FEC, who CREW believed were refusing to enforce campaign finance laws...

The lawsuit challenged the withholding of the documents and also the Justice Department’s interpretation of a rule in freedom of information law that requires agencies to communicate a “determination” on whether it will comply with the FOIA request within 20 working days. ..

By law, as the ruling describes, “A FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.”

The Justice Department had argued to ”trigger the requirement that a requester actually exhaust administrative remedies before bringing suit, the government merely needs to indicate that it is in the process of responding to the request.” 

But Judge Brett Kavanaugh, speaking for a unanimous appellate panel, wouldn't have it:

“An agency could respond to a request within 20 working days in terms not susceptible to immediate administrative appeal – by simply stating, in essence, that it will produce documents and claim exemptions over withheld documents in the future,”...

“Then, the agency could process the request at its leisure, free from any timelines. All the while, the agency’s actions would remain immune from suit because the requester would not yet have been able to appeal and exhaust administrative appeal remedies.”...

“By arguing that it made a “determination” in March and simultaneously saying that nothing could be administratively appealed until June...[t]he FEC’s position on CREW’s request amply demonstrates the impermissible Catch-22 it seeks to enshrine in the law.”

Tom Blanton, Director of George Washington University's National Security Archive observed:

“The Justice Department, by making outrageous litigation claims like the ones the D.C. Circuit rejected today, is undermining President Obama’s entire open government agenda. Attorney General Holder needs to provide some adult supervision, or another presidential term will pass with Justice’s lawyers making the same old secrecy arguments.”

 http://www.gwu.edu/~nsarchiv/news/20130402/

Gosztola again:

Last month, Blanton informed Congress during a hearing on FOIA held during Sunshine Week that the Justice Department had not in any case since 2009 “changed its litigation posture and refused to defend an agency” that was withholding documents. That means since 2009, whenever a requester has challenged agency refusals to provide responsive documents, the Justice Department has come to the aid of that agency.

 http://dissenter.firedoglake.com/2013/04/03/court-rejects-justice-department-effort-to-enshrine-catch-22-into-freedom-of-information-law/

So I'm wondering, will the real Eric Holder please stand up?

 

Apply FOIA disclosure to state legislators

In the original California Public Records Act, the legislature exempted itself and the California courts from disclosure requirements.  However, the separate Legislative Open Records Act grants public access to legislative records.

Court decisions have broadened such disclosure requirements.  For example, "In December 2011, a Sacramento Superior Court judge ruled that the California Assembly must disclose budget records of individual lawmakers, handing a victory to newspapers that filed a lawsuit accusing legislators of flouting the state's open records laws."  http://sunshinereview.org/index.php/California_Public_Records_Act

Also, a California court rule mandates public disclosure of state court administrative records.

Read more: http://sunshinereview.org/index.php/California_Public_Records_Act#ixzz2PDXI2DDp

 

California has a long history of legislative tinkering with its public disclosure laws. 

In 2004, California voters approved a state constitutional "sunshine" amendment, applicable to public bodies, without excluding the legislature.

In New York, the legislature is included (through extraordinary provisions) in the state's Freedom of Information Law, but state courts are not.  However, provisions in other public access legislation do apply to the courts.

South Carolina is considering adding the legislature to the list of state government functions covered by its Freedom of Information Act.

Rep. Bill Herbkersman wrote recently, "We must reform and further define the rights of citizens and news organizations in obtaining information, and the responsibilities of public officials to provide appropriate information in a timely and cost-effective manner."

He went on to say,  "I am a strong advocate of open government and I fully support the elimination of the blanket legislative exemption from FOIA. It is unfair and unwise to excuse the lawmakers from the reach of the law."

http://savannahnow.com/bluffton-opinion/2013-03-30/still-tweaking-foia-bill-easter-break-under-way#.UVcMtjdc324


A bill to include the Michigan legislature in the disclosure requirements of the state's FOIA has been dormant for a long time.

These two Congressmen walk into a bar...

 ...and six hours later, stumble out with a bill scribbled on 143 cocktail napkins.

U.S. House Oversight Committee Chairman Darrell Issa (R., Calif.) and Rep. Elijah Cummings (D., Md.), ranking member, collaborated on a bill providing for one federal portal for all 700,000 or so FOIA requests that might be expected annually in the near term.  Good luck!  If enacted, Washington will manage that about as well as Detroit Water and Sewer handles combined sewer overflows.

Potato Peeling Machine

And what are the odds that the bill authorizing the plan will meet and marry a bill to pay for it?  Ah, there's another rub.

The bill just out of committee tinkers with the government's burden to justify withholding information.

An admirable part of the proposal would amend the provision for public access to information in FOIA by striking ‘‘for public inspection and copying" and inserting "in an electronic, publicly accessible format."  Of course, that's been done by the agencies for years, albeit inadequately.  Nice to see that the Act's language may finally be catching up to the reality, though. 


Material requested three times or more would be posted online for easier public access.

The same would apply to records deemed "likely" to contribute significantly to public understanding of government operations.  Likely?  Are we talking about Vegas odds here?  Can you imagine a court-imposed standard of proof ?  

Accessible records will be kept of each agency's proactive archiving online, and the authority of the FOIA Ombudsman will be beefed up.

The Office of Government Information Services (OGIS) would be created to review compliance, report to Congress, hold public meetings at least once a year, blah, blah.

Each agency would have a Chief FOIA Officer.

There are lengthy provisions concerning appeal, mediation and dispute resolution.  Is this bureaucratic Heaven or what?

Numerous duties are heaped on OGIS, agencies' Inspectors General, Chief FOIA Officers and a Chief FOIA Officer Council.

In conclusion, I have to wonder if this bill is actually intended for passage or is simply window dressing thought by its authors to be expected during Sunshine Week.  If really intended to become law, would this bill help in the long run or hinder the public in acquiring government records?

I predict the bill, if it passes both House and Senate and gets funded, will require a cast of thousands, cost billions and accomplish virtually nothing.

If we really want FOIA compliance, let's make unjustifiable non-compliance a federal felony.  Information would flow in a torrent.

Seriously, adding more and more government machinery is not the solution.  Congressional gimmickry is no substitute for true presidential leadership (not mere lip service).  If that means the president has to crack a few bureaucrats' heads, so be it.

[Update]

http://www.fiercegovernmentit.com/story/doj-metatagging-plan-will-make-all-federal-foia-documents-searchable-access/2013-03-28

New: Michigan Coalition for Open Government (MiCOG)

Until two weeks ago, Michigan was one of only two states that didn't have an affiliate of the National Freedom of Information Coalition (NFOIC).  The founding of such an organization in Michigan is good news for people who have sought government records pursuant to federal or state Freedom of Information Acts (FOIA) and encountered obstacles.  Many have faced such difficulties as unwarranted denials of disclosure, unreasonable delays and prohibitive costs.

The Michigan group is led by Jane Briggs-Bunting.  She is a distinguished journalist, lawyer and educator.

Through NFOIC, MiCOG members will be able to apply for funds provided by the Knight Foundation to bring lawsuits against government agencies that evade their responsibilities under FOIA.  Any sums recovered go back into the pot for the benefit of others.  The MiCOG board and a national committee decide which cases are most appropriate for funding.

Statistics show that FOIA requests and legal actions have declined in recent years.  Is the public losing confidence in disclosure laws?  That would be truly regrettable.

The Knight Foundation is a private, non-profit foundation devoted to journalism and related innovation.  There are also programs for selected communities and the arts.  The Knights' newspaper investments began with the establishment of the Akron Beacon Journal in 1907.  Their charitable work grew from helping needy students with college expenses.

NFOIC describes itself as "...a nonpartisan alliance of citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys"  and "...an education and outreach resource for state and local governments to counsel on transparency and open government issues, laws and legislation."

The national coalition was created in 1989.  It's located at the Reynolds Journalism Institute in Columbia, MO.  The executive director is Ken Bunting of the Missouri School of Journalism.

More information about MiCOG, including membership particulars, can be found at  http://miopengov.org/

South Carolina ponders FOIA court

Earlier this month, Rep. Bill Taylor of the South Carolina House of Representatives proposed the creation of a FOIA court as a part of the state's Administrative Law Court.

Taylor has three purposes in mind.  First, he wants citizens to be able to hold state offices accountable for compliance with the Freedom of Information Act.  Second, a FOIA court would give public officials an opportunity to challenge harassment by provocateurs abusing the FOIA process.  Third, a FOIA court could establish online a record of precedents to guide citizens, state officials and the court in future cases.

Another representative, Weston Newton, agreed with the concept, but questioned the additional cost of creating a new branch of the Administrative Law Court.  Also, he expressed concern about the inconvenience to citizens who would have to travel to the state capitol for court proceedings.

Newton suggested that it might be preferable for the legislature to design an expedited procedure with a reduced filing fee for application in the county circuit courts, instead of the ad law court. 

http://savannahnow.com/bluffton-news/2013-03-09/foia-court-proposed-lawmakers#.UUxUgjeRcYg

Michigan should consider a similar amendment to its Freedom of Information Act as an intermediate step for improvement of disclosure of public records.  Limited jurisdiction to hear summary proceedings to compel disclosure of government records could be conferred on Michigan's administrative law judges.

Proceedings would be initiated within 60 days of a denial (in whole or part) by filing a simple form (who, what, when, where) reiterating the original request for records, with copies of all correspondence up to that point attached.  The public official who denied the original request would have 30 days to file a statement indicating any dispute in facts.

Paperwork from both parties would be submitted by mail.  No personal appearances would be permitted unless both parties agreed.  Either party could have the paperwork prepared and submitted by legal counsel if they wished.

The ad law judge would have 30 days to rule.  If the ruling was in favor of the petitioner (in whole or part), the public official would be ordered to furnish the requested record and pay the petitioner $500, both within 30 days of the date of the order.

If the ad law judge's decision is against the petitioner in whole or part, the petitioner would have the right to file an appeal in the circuit court for his or her county of residence (with a nominal fee).

If the public official chose to contest the matter, that official's agency or department would be required to pay monthly a reasonable attorney fee, as determined by the court, to enable the petitioner/appellant to have legal counsel.

If the petitioner/appellant prevailed in circuit court in whole or part, the public official would be ordered to furnish the requested record, pay the petitioner $5000 and pay court costs as determined by the judge.

Until the Michigan Legislature requires state offices to post all records in searchable archives online from the moment those records are created or received, action like that described above is necessary to assure compliance with the act in its present (outdated) form.