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?".