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.

Energize Sunshine Week

We know the Grinch stole Christmas.  Now we have to figure out who took the "umph" out of Sunshine Week.

Used to be, newspapers would honor the occasion with extensive coverage. There would be salutes to stalwart individuals, many journalists among them, who had, against all odds, patched together information pulled from uncooperative government sources to expose waste, fraud, theft, cronyism, indecision and bad ideas.

For instance, a review of the story last year about the Partnership for Civil Justice Fund extracting Department of Home Land Security documents concerning the department's monitoring of the Occupy Movement would have been commendable.

Closer to home, a summary of Progress Michigan's investigation utilizing FOIA requests for information about Michigan Rep. Roy Schmidt's machinations in changing his party affiliation would have been instructive.

Just a week ago it was reported that the Michigan Chapter of Americans for Prosperity was told it would have to pay the Michigan State Police about $19,600 for copies of a few hours of video tape recorded last December.  That, too, would have been a worthy subject for discussion during Sunshine Week.

Also during past Sunshine Weeks, there would have been a recounting of the year's efforts to strengthen Freedom of Information statutes to make it easier for the public to acquire the records their tax dollars had paid for; and especially, to expose corruption and ineptness in government.

What happened this year?  I suppose editors could have pointed out that last September Rep. Mike Shirkey introduced in the Michigan House a watery bill, intended as an improvement on Michigan's outdated statute, to speed up FOIA compliance, reduce costs and increase fines against government offices that failed to comply.

Unfortunately, the bill expired in December.  But wait!  Shirkey reintroduced the bill in January.  It continues to languish.  Wow.  There's a scoop. 

Herz: Place all non-exempt government records on the web.

Federal Freedom of Information legislation was signed into law by President Lyndon B. Johnson in 1966.  State imitations were enacted in the years following.  Since then, exemptions have expanded dramatically, but legislative updates and reforms have been few and far between.

Even worse, secretive bureaucrats have found ways to avoid, delay and/or overprice disclosure.  There are few meaningful sanctions in the legislation to discourage bureaucratic evasions.

It's time to update FOIA to take advantage of improved technology, encourage proactive archiving online and put some teeth in compliance requirements.

Prof. Michael Herz of the Cardozo Law School concluded in a 2009 treatise that in actual practice, innovations in the disclosure of public records by federal agencies have outpaced legislation.

Herz wrote:

"The federal government is making unprecedented amounts of information available to the public. To the extent this transformation has occurred, it is the result of societal and technological changes--in particular, the overwhelming movement of society, and government along with it, on line. The law has had very little to do with it. The law lags. (p. 2)

"FOIA falls miles short of being a complete window into the government. A great deal of information is unavailable, in theory or in practice...the basic model is that a record is released only if and when someone requests it. Agencies need not be forthcoming...
requiring the government to provide records only on request is a hobbling and increasingly unjustifiable limitation. (p. 9)

"Not only is the request-driven approach contentious and time-consuming, it is inherently limited by the fact that the requester, by definition, does not know what the agency has and so does not know what to ask for. Some requests will be unfounded and inappropriately broad. Others will be self-defeatingly narrow, failing to say the magic words to obtain a non-exempt, valuable record that the requester just did not know how to ask for... (p.10)

"...[A]gencies have increasingly placed information on their websites. But they have not yet taken the bold but no longer unthinkable step: simply place all non-exempt records on the web... Nothing is stopping them." (p. 22)

Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 3, 2009

Many government officials have been boasting about speed and transparency in making records available to the public, while in reality their agencies have become slower and more secretive.

U.S. Attorney General Eric Holder made bold promises in recent years, most notably in 2009, about greater government transparency.  A number of studies since then, however, dispel the hope that followed those promises.

We need to bring FOIA into the 21st century.

"Sunshine" Week and the prospect for FOIA reform

Here we are again in "Sunshine" Week, more than a year after a bill was filed in the Michigan House to add the Michigan Legislature to the list of state government functions subject to the state's ancient Freedom of Information Act.  That bill expired in December at the end of the previous legislative term.

Another bill, designed to encourage more prompt government responses to FOIA requests and establish lower, uniform retrieval and copying costs, was filed last September.  It, too, died at the end of the last legislative term, but was resurrected by Rep. Mike Shirkey at the beginning of the new term in January.  Shirkey's bill has had the active support of the Michigan Press Association.

The flaw in both of these proposals to amend Michigan FOIA is that they are based on the old FOIA model, which requires a request to a government unit's "FOIA Coordinator" in order to obtain public information, subjecting the request to the scrutiny,  approval and convenience of personnel in that particular unit.

Genuine reform, now being implemented to various degrees in most federal agencies, requires that non-exempt public information be posted on searchable websites (often referred to as "reading rooms") by the various government offices as soon as the information is created or acquired.  In this process, government staff do not play gatekeeper; nor are they distracted from other duties in order to conduct a search.


This proactive approach for public access to government records should be adopted by the states.