Public Information and the Generational Divide

Older folks seeking public records via the Freedom of Information Act (FOIA) look to a government official and ask, “May I have...?”  They wonder how long they must wait for a response and how much it will cost.

Millennials seeking public records, expecting proactive disclosure, look at their tablets and ask themselves, “Where can I find...?”  More and more the information will be at their fingertips. They don’t worry about cost, knowing the information will be free.

Older folks wishing to improve FOIA can beseech their legislators, but are often ignored.

Millennials, determined to exploit new technology, look to people like Derek Dobies of Jackson, Pete Buttigieg of South Bend, John Lui of New York and Dr. Clifford Lampe at the University of Michigan for guidance.

It's almost as if the two groups occupy parallel universes. The older group seems to dwell on tinkering with the clunky model of information by request to a government gatekeeper, for all appearances oblivious to the fast, easy and free access available online through proactive disclosure.

Communities with governments that resist proactive disclosure will decline.

Communities with governments that practice openness will thrive.

How do I know? I read tarot cards.

Independent State Agency Reviewed 3400 Open Government Issues Last Year

Take my word for it, I don't obsess over Illinois open records and meetings issues, although my last two blog posts might suggest otherwise.  And now comes the third.

By coincidence, Illinois Attorney General Lisa Madigan just released some interesting Freedom of Information Act (FOIA) and Open Meetings Act (OMA) statistics.

It was reported yesterday (Friday, 3-14-14) that the Illinois AG's Public Access Bureau (PAB) handled 3400 open government cases last year. Can anybody show me an independent government office in Michigan with a record anything like that?

PAB also conducted 35 training sessions for the public and government personnel during 2013.

These activities are examples of major reforms adopted in Illinois in 2009.  Attempts at reform in Michigan have been stalled for years.

FOIA: A Few Highlights of Illinois' Statute

Compare this with bills pending in the Michigan Legislature to upgrade our Freedom of Information Act (FOIA).

Bear in mind that relying on sketchy descriptions of a statute is risky.  It’s best to read the whole thing, together with related court decisions.  Among the subjects glossed over in this review are various response time limitations and FOIA requests for commercial purposes.

Illinois legislators drafted and passed a major overhaul of their FOIA in 2009, effective January 1, 2010.  In the preamble, legislators acknowledge that technology might outpace their ability to keep up, but the Act’s principles are to apply as much as possible.

Of particular interest to me, the statute defines and delineates categories of “recurrent requester.” Remember the saga of Kim Orlich and the City of Belding?  Wouldn’t happen in Illinois.

The statute applies to a long list of public bodies, including executive and legislative bodies  

(but not the General Assembly itself).  A public body may not require an information seeker to use a standard form.

Access to records is presumed open.  The burden is on the government to overcome the presumption.  Proof must be clear and convincing.

If the response of a public body to a request for records is late, no fee may be charged for the records.

There are provisions for requests that are unduly burdensome to the public body.

Requests for commercial purposes are treated separately.

The highest hourly rate that staff can charge is $10.00, but the first eight hours are free.

The statute creates the position of Public Access Counselor (PAC) under the Attorney General (AG).  The AG is empowered to subpoena public records.

The PAC may issue (ex parte) advisory opinions at the request of a public body, but such opinions are neither final nor subject to administrative review.

A person whose request for records has been denied may go directly to the circuit court for the county in which he or she resides or seek a less formal review by the PAC.

In reviewing denials of FOIA requests, the PAC makes findings of fact and conclusions of law. The PAC is required to issue an opinion within 60 days.  The opinion is binding, subject to administrative and/or circuit court appeal.

If the matter goes to circuit court, it’s heard de novo (or “anew”), which I take to mean the court can draw its own conclusions from any statements or other evidence already accepted in earlier proceedings.

The statute establishes (reaffirms?) the circuit court’s contempt powers to compel public body personnel to comply with the court’s orders.  The court is authorized to award a successful information seeker reasonable attorney fees.  Civil penalties against a public body may range from $2500 to $5000.

Illinois’ FOIA can be found at:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

FOIA Beyond Our Borders

 

The states with the most media coverage of their FOIA activity in recent months are Illinois, South Carolina, Virginia and Connecticut.

ILLINOIS:  Most of the news about FOIA results from municipal denials of FOIA requests which citizens appeal to a special section of the state’s Office of Attorney General.  When the Assistant AG in this section rules in favor of the appellant, the AAG usually fires a shot across the municipality’s bow.  If the warning isn’t heeded, the AAG can compel compliance.  The Illinois statute has real teeth.

SOUTH CAROLINA:  The legislature floats a lot of trial balloons about tinkering with FOIA.  Notable among them are proposals for legislative transparency.

VIRGINIA:  Much of the activity here concerns partisan political bickering over FOIA adjustments, reflecting transition turmoil prominent in the state over the past couple of years.  There was an uproar when the legislature banned out-of-state FOIA requests.

CONNECTICUT:  The  increased volume of FOIA news in this state can be attributed to privacy issues arising from the Sandy Hook Elementary School tragedy.

On the international scene, Ireland, India and Nigeria have had frequent news coverage of FOIA events.

Bermuda and the Philippines are struggling with initial FOIA legislation.  (Better late than never.)

CELEBRATE SUNSHINE WEEK !

Small City To Make Data Accessible Online

The City of Jackson, MI  (population approximately 33,500) has teamed up with the University of Michigan and the Sunlight Foundation to establish an open data portal online similar to the one pioneered by the City of South Bend, IN last year. The Jackson Chamber of Commerce has joined in the effort.
  

The new system is expected to benefit residents and businesses alike by simplifying and speeding up information acquisition and reducing the cost of acquisition.  City government will achieve more efficient inter-departmental data sharing, as well.

Making vast amounts of information accessible online reduces substantially the costs to the city of responding to Freedom of Information Act (FOIA) requests.  (The city would continue to expend employee hours redacting partially exempt records, for which information seekers could be billed.)

Dr. Clifford Lampe of U-M's School of Information leads the university's contingent in the collaboration.  “He researches the social and technical structures of large scale technology mediated communication...” and “...has also been involved in the creation of multiple social media and online community projects...”

Last year, Lampe told Jackson Citizen Patriot reporter Will Forgrave that  “the three-year project will have graduate students develop mobile and social media apps designed to streamline communication between Jackson citizens and their leaders.”

As the software gets better and more widely applied year by year, the cost will come down, putting the technology within reach of even smaller communities.  Municipal budget planners should take a close look at this kind of cost-cutting innovation.

Coordinating FOIA and Open Government

The importance of coordinating the Freedom of Information Act (FOIA) and Open Government (OpGov) initiatives is reflected in a recent article from the Philippines.  Perhaps I was too quick in the preceding post to accept and approve the separation of OpGov from FOIA.

Excerpts:

“ ‘The primary goal of data.gov.ph is to foster a citizenry empowered to make informed decisions, and to promote efficiency and transparency in government,’ it says on its website.”

“[Gladys Regalado, deputy national coordinator of the Computer Professionals’ Union] added, ‘It is too early to tell if the open data web portal will enhance transparency, accountability and citizen engagement.’ “

“Regalado also stressed that, ‘open data initiatives should not be a substitute to a Freedom of Information Act,’ which she pointed out, ‘can mandate what kind of data will be 'open' to the public to ensure transparency.’ ”

" ‘With the current culture of corruption...where information is hidden purposely, it would be difficult to find data that can actually help in transparency and good governance. We should have an (sic) FOIA and more patriotic whistleblowers and not just a repository website,’ Regalado said.”   http://www.interaksyon.com/article/79278/only-foi-not-ph-data-portal-can-guarantee-transparency---computer-experts

Stateside, a recent op-ed piece put it succinctly:  “The state... and our biggest municipalities* should build on the state's FOIA law and adopt comprehensive open data policies. All public records, save those that would violate privacy laws or undermine security, should be proactively made available to the public for free on the Internet in a structured, sortable, downloadable format.”

http://www.arktimes.com/arkansas/the-open-data-revolution-is-coming/Content?oid=3187194

*As I pointed out in the preceding post, the mandate mentioned above should apply to small municipalities, as well.

       

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

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?".

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.  

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.

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.