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 !

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.

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.