Conducting Compliance
Audits
Panelists from Indiana, Connecticut and California shared their
experiences at the NFOIC conference with compliance audits to
check whether local agencies were giving out the public records
they should. More than a dozens of these have been done by media
or student journalists in many states in the last four years,
with results ranging from new laws to changed policies to
establishment of state ombudspersons for open government.
Panelists suggested those conducting the surveys/audits should
set up procedures for uniformity and give training to those doing
the audits.
As a practical matter, Amy Starnes, a writer at "The
Stockton Record," said her newspaper found it helpful to set
up a separate postal address and phone line so government
agencies had a place to respond that wouldn't tip them off to the
project.
She added that her paper worked hard to make sure the audit was
fair. Starnes said if a reporter didn't return a call from a
public agency for two days, those two days weren't counted
against the 10 day time limit for agencies to comply. They also
gave the agencies that refused to provide records a second chance
to comply by asking, "are you certain, can I check with
someone else?"
Starnes reminded the audience that ethics is important if you're
sending out reporters as auditors. She said you want to stimulate
the average citizen but don't want to lie about who you are. The
Stockton paper came up with a standard response to the common
question of "who are you and why do you want this?" The
reporters were trained to say, " do I have to tell you in
order to get the record?"
Rick Pullen, a communications dean at Cal State-Fullerton told
participants they should look at an audit as more than
"gotcha" but an opportunity to follow up with more
education.
For more information and links to the results of the Stockton
project and dozens of others, check the website of the Freedom of
Center at the University of Missouri at
http://www.missouri.edu/~foiwww
Barbara Croll Fought, Associate Professor
Newhouse School of Public Communications, Syracuse University
215 University Place, Syracuse, NY 13210
315.443.4054 (O) 315.443.3946 (fax)
bcfought@syr.edu http://web.syr.edu/~bcfought
NFOIC: State by State Reports
Here are some highlights from the
NFOIC Annual Meeting session on what's new in the states. This
message covers Arizona to Kansas. See second message for the rest
of the states.
Arizona
Through negotiation, reporters now have access to the
state's motor vehicle lists. Bank numbers and social security
numbers are redacted in public records online, but they are still
available electronically in gov't offices.
Arkansas
The state had its first overhaul of FOI Act, including
the addition of access to electronic records.
California
The governor is negotiating long-term contracts to
purchase electric power in secret, saying that's the only way to
get the best deal for the consumer. A recent California First
Amendment Coalition statewide poll showed that 86 % of citizens
said they'd want details of the contracts made public, despite
the fact that some argue it would mean higher prices.
A new law says gov't must make available copies of public records
kept in electronic form, plus citizens can get records not kept
electronically if they'll pay for the conversion. However one
state agency (the one that collects taxes) decided it didn't want
to make records available electronically so it decided to stop
keeping records electronically!
Conn.
The Connecticut commission conducted a statewide survey
using college students to request the time records of heads of
state agencies. Initial tallies appear to show compliance is very
weak, perhaps less than 20%.
The legislature authorized the FOI Commission to draft a model
ordinance for municipalities to set up advisory boards to act as
liaison with the FOI Commission. The commission is doing 16-hours
of training to help municipalities know the law.
A law is in process providing that public agencies that contract
with private entities to handle public functions must include
contract language that the private entity is subject to FOI in
Conn.
Fla
Access advocates here say the recent legislative session
was the worst in the last 10 years for FOI. The legislature has
created the position of a chief privacy officer; the dept. of
corrections is considering rules of limiting reporter access to
prisoners; one town has replaced scanners with a digital system
for which the codes are kept secret so no one can monitor calls;
the legislature banned access to autopsy photographs, sealed
reports of accidents or deaths in nursing homes, and exempted
home addresses and telephone numbers of human resource managers
to protect them from retaliation by disgruntled job seekers.
The Bencher Center is continuing to work on a rating system for
state laws that will be online in the near future.
The Center also maintains the "Resources" page for the
NFOIC [http://www.nfoic.org/web/index.htm or http://
www.jou.ufl.edu/brechner/ ] The links to state laws are updated
monthly and state information is reviewed on a rotating schedule,
at least once a year.
Georgia
Identify theft has been a big issue and records are
being closed off because of it.
Georgians have lost access to personal identifiers of school
personnel.
Ga. First Amendment Foundation has developed a basic training
program and gotten on the agendas for the annual
meetings/continuing education meetings of county clerks and other
local gov't officials. About 20 people across the state are
trained to lead these workshops. The training materials for these
events are co-authored with related gov't agencies.
Indiana
FOI Indiana is using a $10,000 grant from NFOIC/Knight
Foundation to expand membership beyond the capital area. It's
changing its name to the Indiana Coalition for Open Government
and is hoping to hire a part time staffer.
Legislature tried to exempt all email to/from public agencies
from public records law but didn't succeed. On a positive note,
the General Assembly mandated the licensing board database on
health-providers must be online.
Iowa
Iowans conducted an access audit statewide with positive
results, The Attorney General now has access on its radar screen
and is conducting training sessions for law enforcement
officials. The best result is that the state ombudsperson's
office (connected to the legislature) is adding an access
counselor to its office. The Iowa folks recommend that if a state
does an audit it be prepared politically for the positive bounce
the results create. Have model legislation or other
"wants" ready.
Kansas
Kansas law provides that the 44 exemptions to the public
records law sunset after five years. An overlooked statute passed
in 1983 prohibits the use of public records for commercial use.
Maine
Maine has organized a new coalition this year with 30
members. Primary goal for the first year is educating government
officials about the law.
The state archivist has joined the coalition because of the
archivist's concern that records are being kept in formats that
might not be accessible in future years when that CD-Rom or
floppy disc is old technology.
Mississippi
Legislative rules were changed to open up conference
committees to the public.
MCFOI challenged all mayoral candidates in 14 cities to take a
FOI pledge saying they'd abide by the open meetings and records
laws and promote openness in their administrations. Newspapers
donated ads in hometown papers saying "ask your candidate if
he/she will make the pledge". The campaign was highly
successful and now MCFOI will monitor those elected and hold them
accountable when there's a denial of access.
Missouri
The FOI Center is located at a public university that
historically hasn't complied with open government laws. Thus its
role is very difficult because it provides information and
resources on what the law is, but can't be an advocate at its own
university.
New Jersey
A new coalition has been formed here, the New Jersey
Foundation for Open Government, including League of Women voters,
ACLU, grassroots groups and media.
New Mexico
FOG has sued to open up two confidential settlements by
government and won. The group also gets attorney fees to cover
its costs.
New York
In the past 18 months three Syracuse University
journalism law classes conducted a survey of compliance with the
with the state FOI law in two counties. The results were aired by
a local TV station or local newspaper. Both faculty and students
say the experiences have been beneficial. The projects forced
students to go beyond text book learning and gave them confidence
and skills to use the law when they get into the business.
Ohio
The tension between personal privacy and electronic
records is hot here. Three cases (including a federal sixth
circuit case) have turned against open access to the personnel
files of government employees.
A coalition of school districts sued the state over the state
funding formula and won. One of the offshoots was that when the
governor and legislative leaders got together to draft the budget
they did it behind closed doors, arguing it was due to the
litigation.
Oklahoma
After a records audit showing poor compliance among law
enforcement, the state organization asked for training. Thus
training is a summer project, including the production of a
videotape.
On the legislative front, FOI Oklahoma beat back efforts to seal
voter registration records.
Pennsylvania
A coalition is now being formed in the state. The
current law was enacted in 1957 so a new law (now being drafted)
is sorely needed..
South Dakota
SD FOI advocates have been trying for years to get the
legislature to change its status as the only state that
statutorily bans cameras in all courtrooms. After the chief
justice told a reporter he didn't have a problem with cameras in
the state's highest courtroom, the media have drawn up guidelines
and are submitting them. The hope is they will soon be approved.
Tennessee
An appeals court decided the state sunshine law didn't
cover the state legislature. FOI advocates are working toward a
constitutional amendment to guarantee access, but that is a
complicated process that takes about five years. In a statewide
poll 89% of the public said a sunshine law should cover the
legislature.
The governor is moving to cut off access to the state personnel
government database, although media will still have access.
Texas
A successful model for training has been to band
together the Attorney General's office, the Texas regional gov't
association and the FOIFT to conduct five open government
seminars around the state.
The First Amendment Institute is in its second year with 20
people participating this year including people from media, law,
and state government. They meet four times a year for 1.5 days to
study each of the four rights in the First Amendment. Faculty is
law professors and experts brought in from around the country.
Virginia
Virginia's full time ombudsperson has been on the job
since last July and is working well. In the first 10 months, 430
inquiries came in --212 came from citizens, 125 from gov't and 94
from media.
The office's funding will be reviewed next year for continuance
and the Virginia coalition is hopeful it will be renewed.
The coalition published a laminated educational poster about open
government and sent it to all public libraries, sheriff's offices
and municipal offices.
Washington
A coalition is just in the formative stages.
Barbara Croll Fought, Associate Professor
Newhouse School of Public Communications, Syracuse University
215 University Place, Syracuse, NY 13210
315.443.4054 (O) 315.443.3946 (fax)
bcfought@syr.edu
ROUND-UP OF RECENT FOI DEVELOPMENTS -- REPORTED AT NFOIC's ANNUAL MEETING IN ARLINGTON, VIRGINIA, APRIL 16, 2000 AND FOR ADDITIONAL REPORTS AND A SUMMARY OF MORE THAN A DOZEN STATE FOI AUDITS, PLASE VISIT THE FREEDOM FORUM'S WEB SITE: http://www.freedomforum.org/news/2000/03/2000-03-15-23.asp FLORIDA - Bill Chamberlin Appealed to members to help him maintain up-to-date links for the Brechner Center's on-line FOIA resources. Updated the center's plan for a nationwide rating system for open-government laws (early-fall disclosure is planned). Each state's open meeting and open record laws are now at the Brechner site and available to NFOIC members for selected data dumps. DPPA-related laws are in the early database. Non-FOIA exemptions will be documented in later stages, at least on a partial basis. Court access is on the back burner. 10 new FOI exemptions are likely, giving Florida some 750. CONNECTICUT - Mitch Pearlman Connecticut Foundation for Open Government doing better financially; membership is growing. Sponsored a survey of local-government compliance with the act, showing bad performance. Positive action by legislature is likely, for the first time in 10 years. Educational efforts have been stepped up; cannot be a one-shot initiative. Pushing that effort into high school and middle-school levels. COF commemorating 25th anniversary of state's FOI law. Established an award two years ago, named after first recipient Walter Cronkite, celebrating CFOG's survival. Municipal attornies unsuccessfully sought to use the discovery process as an excuse for nondisclosure. Previous carte-blanche exemption for nondisclosure of economic development was narrowed (it had permitted hundreds of millions of dollars to be funneled into projects such as a New Haven mall and a New London non-profit entity that had claimed FOIA exemptions). State said it would cut off funding to the nonprofit if it did not comply with FOIA. IOWA - Herb Stretnz Cedar Rapids and Des Moines newspapers are planning an audit. Legislature is likely to order all state agencies to have most of their records on line by 2003. But -- no funds provided! Condemnation commissions are seeking a return to closed meetings, closed deliberations. A new issue: Posting of legal notices on-line only. ARIZONA - John Fearing Watch for a major push for primary portal sites, in every state, by outsourcing the work with subscription fees. Convenience fee fine (renewing driver's license, for example), but will there be free access to on-line information? Newspapers are offering legal ads on line, with free word-search access -- and, for a fee, convenience of e-mail alerts. Notice will be sent to those who pay a subscription fee. GEORGIA - Hyde Post Audit by Georgia newspapers was particularly helpful in building public awareness. The project showed relatively good performance by local communities, poorer performance by law-enforcement groups, especially in rural areas; college police departments had one of the worst compliance areas. We are doing educational workshops every other week around the state, with excellent turnouts in part because of the survey. Georgia has strengthened its three-day deadline for disclosure of a record, and tightened rules to require certification that a closed meeting is legal. Access to accident reports has been tightened, but without a threatened cutoff of needed public information. RHODE ISLAND - Tom Heslin State handbook is proving to be a good advocate's guide. Educational efforts include training for government, including judges Working with law students to provide legal advice for citizens Continuing audits are planned -- but the research must be right, and the audit must be properly constructed. (Side benefit: builds new FOI constituencies, with public-policy groups, others; students who seek public records become passionate FOI supporters when they are denied access) Trying to develop support staff for the coalition. FOI INDIANA -- Clarke Kahlo Citizen activist. We are building membership, and will have our first membership meeting soon. Strengthened open-government laws two years ago; mayor of Indianapolis has named a local public access counselor for the city. FOI Indiana was given a $3,000 check from the newspapers that audited the state's public records -- they won the annual Brechner prize for FOI work. ARKANSAS - Dennis Berg Worked with volunteers and 5 newspapers to put together the 75-county Arkansas audit. We are seeking administrative review by the attorney general for access denials, with tough sanctions for those who are sued after failing to comply with an advisory opinion in support of openness. A loosely based FOI coalition exists in Arkansas. CALIFORNIA - Wendy Zlotlow Back to square one with improved access laws, following a governor's veto; seeking new legislation that would be acceptable to him. In early stages of seeking a constitutional amendment to support access. Encountering increasing problems with new judicial exceptions to the state's shield law. Successfully unsealing settlements involving public expenditures. San Francisco enacted a tough local FOIA; its mayor was destroying his appointment calendar in 15 days, now must retain it for 2 years. MONTANA - Ian Marquand Working to maintain affordable, good legal counsel for the state's coalition Lost a lawsuit for access to coal severance taxes. Considering a legal test against licensing agency. Hot-line calls have doubled in last 3 months. No FOI conference this year, but the journalism schools recognized a hot-line board member for second time in 5 years. Considering ways to question candidates on open-government issues. The annual SPJ convention in Columbus, Ohio will include an all-day FOI program on Friday, Oct. 28, including speakers and a half-dozen panels. SPJ is exploring a possible 50-state audit of record access. DISTRICT OF COLUMBIA - Bob Becker Self-described FOIA gadfly and chamelon (media and criminal lawyer) Fairfax County police department issuing implicit warnings to crime victims to quit talking to reporters (after a TV station reported a possible sexual abuse of a child, interviewed a mother who sought out a reporter, then failed to edit tape that showed the child). Met with victims' advocates, media, law enforcement groups. Victim advocates said they recognized media role in helping to catch criminals, did not like the written-notice wording either. The district SPJ chapter has offered alternative language. Other police departments are expected to adopt similar victims'-rights cards. Court systems are going on line with web sites and electronic filing systems. Lawyers can file documents via Internet to the clerk's office, becoming part of an electronic case file. A major debate is occurring in the court community. "Reporters Committee" ruling and practical obscurity of paper records has protected individual privacy from widespread dissemination. Access activists need to get involved in discussions with the Judicial Conference of the US; Vermont has a draft rule; Georgia community has a test project (only a lawyer and others in case can see filings). Media access to corporate information is through case filings; that access needs to be maintained. With old cases, paper files will continue. With new cases, a public-access terminal may permit access to documents with discs or paper printouts. Discovery material is a separate issue; litigants have argued it is not a public record. A proposed federal rule change would eliminate most discovery access. Case documents, pleadings and motions are coming on-line. There is a right of access under First Amendment to major court actions. NEW MEXICO - Bob Johnson Spoke in the past year to national organization of prosecutors, who would rather do "almost anything than enforce an access law." Summarized recent litigation and legislative activity, most recently involving secrecy in Indian gaming compacts. The New Mexico Coalition pushed for disclosure of casino profits, winning at least a temporary victory in blocking new compacts that could be kept secret as privileged "proprietary information." Seeking volunteers for a statewide audit, working with AP and the state's newspapers. Recognized as the first runner-up (second out of 40 entires) for the Scripps Howard Award for Distinguished Service to the First Amendment. LOUISIANA - Linda Lightfoot Fall vote planned to privatize economic development efforts; passage contingent on approval of constitutional amendment to insulate employees from civil service protections. Access activists carefully researched the proposed legislation; newspapers took strong positions. Audio/video conferencing is creeping into state laws, without public access provisions. Preliminary plans for public funding cannot be disclosed until deals are finalized, which is too late for public comment. Victims' rights groups in Louisiana seek to punish public officials for disclosure of any information about a victim, but current law has no sanctions. D.A.'s are terrified of the lobby. School board barred from a "walking quorum," saying it violates open meeting laws. A national Privacy Summit is planned (including a worrisome public opinion survey, which included a number of slanted questions in the early draft). Louisiana Supreme Court decision: all applications for public employment are public records, opening up the records of all applicants for university presidents. The U.S. Fifth Circuit Court of Appeals is increasingly hostile to access, in cases involving gag orders, juror names, etc. More press/bench/bar initiatives are needed; if we dismiss bench/bar concerns without dialogue, we will not always carry the day. ALABAMA - Emily Erickson Alabama's Center for Open Government, based at the University of Alabama, is being incorporated, with fund-raising as a first-year priority. Weak Alabama laws cry for an audit. TENNESSEE - Frank Gibson Chairman, press association's FOI committee. Legislative activity: 20 FOI - related bills; 18 dead; one passed (first execution in 40 years scheduled in next few weeks; identity of executioner was exempted from disclosure rules); one pending. Check-off on each traffic accident report allowing each victim or accused to opt in for disclosure of information. Persons carrying concealed guns still a public record; prohibited requirement for written request of a document. Paramedics wanted to close 911 tapes disclosing personal medical information. Fee-based GIS system would have allowed fees for any computer record; journalist and citizen privilege for cost-only access, with pledge not to re-sell. Realtors would not re-sell, but state wanted commercial markup. TEXAS - Nancy Monson Senate interim study led to rules opening up staff briefings for governmental entities; posting of access rights now required at government offices. One city prohibited negative comments about public officials unless protected by the First Amendment! State comptroller ruled that emails could be destroyed in 15 days; challenger told that his request for 12 months would cost more than $5 million. Article by the attorney general will appear in the foundation's newsletter; several FOI training seminars are occurring. Honoree fund-raising continues to be tremendously successful; now almost $2 million in FOIFT's bank accounts. NEW JERSEY Opportunity following the recent Gannett-newspaper audit to strengthen the state's open-government laws, with at least informal backing from a broad base of coalition partners for a new FOI organization. "Perfidy" of media organizations makes them suspect: some citizen members felt they were shut out of process for studying new legislation. AG has proposed language that might exempt investigative files from ever being disclosed; governor also seeking some weakening amendments. Action in the next month expected. VIRGINIA The General Assembly approved a full-time FOI office for a two-year trial. http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+HB551H1 Gov. Gilmore signed the bill, despite objections that it was to be run by the legislature. The two-year budget will be $329,000 -- enough for a two-person staff. A12-member advisory commission, including two legislators and five other representatives of the general public, will help guide the work of the office. Members will include a leading FOI supporter in the State Senate, and the chairman of the press association's FOI Committee. An executive director will be named in late May or June, at an annual salary of $70,000. The state's media groups and the Virginia Coalition for Open Government submitted a slate of five access activists; several appointments are still pending. A handful of additional exemptions will be added to the state's FOIA, taking the number over the 100 mark; new exceptions are narrowly drawn. Posting of legal notices on-line will be permitted, but as a supplement to paid notices in newspapers (as introduced, legislation called for the on-line notices to replace newspaper advertising.) Meeting notices must be placed in two prominent places beginning July 1. FOIA was overhauled last July 1 to try to increase compliance. More than 1,000 government employees and others attended a series of seven FOIA training seminars held across the state. http://www5.infi.net/opengov
Minutes: annual meeting of the National Freedom of Information Coalition Sunday, April 16, 2000 Hyatt Arlington Hotel, Arlington, Va. President Frosty Landon called the meeting to order at about 8:45 a.m. Members and associate members attending included: Alabama: Emily Erickson Arizona Newspaper Association: John Fearing Arkansas: Dennis Byrd California First Amendment Coalition: Wendy Zlotlow Connecticut Foundation for Open Government: Mitch Pearlman Florida First Amendment Foundation: Barbara Peterson Florida, Brechner Center: Bill Chamberlin Georgia First Amendment Foundation: Tom Bennett and Hyde Post Indiana: Clarke Kahlo Iowa FOI Council: Kathleen Richardson and Herb Strentz Louisiana: Linda Lightfoot Mississippi: Jeanni Atkins Montana FOI Hotline: Ian Marquand New Mexico: Bob Johnson Oklahoma, FOI: Kay Bickham Rhode Island, ACCESS/RI: Tom Heslin Tennessee: Frank Gibson Texas, FOI Foundation: Nancy Monson Virginia Coalition for Open Government: Frosty Landon Virginia: Harry Hammitt Minutes of the May 21, 1999, annual meeting in Atlanta, Ga., were approved as distributed financial report Landon, reporting in the absence of treasurer Ralph Langer, noted that we're in about the "same net position" as in the spring of 1999. As of March 31, 2000, NFOIC had $44,581.93 in its operating fund, not reflecting this year's Knight grant money of $100,000. Upcoming application deadlines for the Knight grant are September 1, 2000, and March 1 and September 1, 2001. The Texas FOI organization estimates it has provided $27,329 in services to the NFOIC so far this fiscal year. The NFOIC and the Knight grant pay the Texas FOI $25,000 a year for services. The proposed budget includes a projected $50,000 in possible new grant funds in the fiscal year. (We are moving to having the calendar year as our fiscal year.) The financial report was approved upon motion by Hyde Post and second by Tom Heslin. MEMBERSHIP: In summarizing membership status, Landon said we were at about the same position as last year, given that the change in the fiscal year has affected the timing of membership renewals. 1 year ago: 59 (24 voting; 34 associate); on Dec. 31, 1999, we had 56. Currently we are at 36, and the estimate is we will bejust shy of 60 again this year - unless we undertake an aggressive membership drive. NEW BUSINESS Knight grants being distributed this spring total $42,020. The board approved the following grants for the first half of 2000: Mississippi, $10,000 for conferences around the state and other start-up projects. New Mexico, $12,000 to provide money to help endow a scholarship for a First Amendment legal intern each year. Georgia, $3,500 to print its second open government book. Oklahoma, $8,000 to publish a FAF booklet, which other states also can use to set up FAF organizations. Texas, $8,520 for a professional brochure and mailing to ensure success of its new First Amendment Institute. To date, the NFOIC has awarded 48 grants to 23 separate groups. Sue Hale was reappointed as chair of the projects funding committee. She said she would make a round of phone calls in the summer reminding our smaller coalitions about the grants application deadline. Committee Reports DEVELOPMENT In Ralph Langer's absence, Landon said the SDX Foundation was expected to act April 30 on our request for a 3-year $150,000 grant. Landon also said plans were continuing for the proposed honoree fund-raising program. After this year, the Freedom Forum will withdraw its $5,000 annual support for travel grants for folks who want to attend our annual conference. Stronger affiliates should begin to budget for the conference. ANNUAL MEETING With respect to this year's annual meeting, we raised $12,250 in underwriting support. As of Friday, 77 people had registered for the conference. Katherine Garner reported that the 1999 Atlanta conference had 69 participants. Registrants this year included 55 paid attendees and 20 speakers. NFOIC LONG-RANGE PLAN, 2000-2005 The long range plan prepared/approved by the executive committee was submitted to the membership for approval with a couple of minor changes on page 4, under the Publications section. 1. Access Denied, a book to be published later this year by Iowa State University Press, is the legitimate offspring of, and replacement for, FOI, Black Holes. 2. An anticipated NFOIC newsletter should be listed as a publication. Upon proper motion and second, the long-range plan was approved as amended, committing NFOIC to a goal of having FOI/First Amendment coalitions in place in all 50 states in five years. NOMINATING COMMITTEE Strentz reviewed the recommendations of the committee (Strentz, Hyde Post and Tom O'Hara). The slate of officers recommended was approved by the executive committee at its Friday, April 14 meeting: Landon, president Dalglish, vice president Fought, secretary Langer, treasurer Strentz noted that Landon had agreed to serve another term because we had to consider concerns with regard to Lucy Dalglish advancing to the presidency. Since her election as vice president, Lucy has become the executive director of an associate member, the Reporters Committee for Freedom of the Press. She and others wonder if there may be some potential conflicts of interest between NFOIC and the Reporters Committee, particularly when it came to fund raising. Later in the meeting, Bill Chamberlin of Florida said it seemed to him that given the nature of our organization the president should come from one of the state FOI organizations. Frosty noted that there are the following carryover terms on the board: 1998-2001: Dalglish, Fought, Landon, O'Hara 1999-2002: Hale, Langer, Post Unrestricted term: Monson (Also, a vacancy exists in the board's seat for an ex officio member.) Frosty then noted that Herb Strentz is going off the board. For members of the board 2000-2003, the nominating committee recommended: Terry Franke of California (replacing Herb) Kathleen Edwards of Missouri (new board position) Anne O'Connor of Indiana, ex-officio Upon motion by Strentz and second by Tom Bennett, Franke and Edwards were elected to the board. Associate members Linda Lightfoot and Harry Hammitt moved and seconded the nomination of Anne O'Connor as an ex officio member. She also was elected. Post reported that he was still talking with representatives of broadcast news who might be good additions to the board. It was assumed we would continue efforts to involve the RTNDA more in the NFOIC. Strentz noted that he had raised/thought about the issue of whether the position of treasurer should be folded into the executive director's duties, but that such a move would require more discussion and that others felt the move was not necessary. PROPOSED BYLAW CHANGES Landon reported that board actions were postponed on possible bylaw changes, including ones distributed with the annual-meeting agenda, because the board did not have sufficient time to make a recommendation. The proposed changes including ones dealing with meeting notice and the new question of Lucy's associate-member status will be discussed at the fall board meeting. 2000-01 BUDGET Upon motion by Mitch Pearlman and second by Nancy Monson, the $189,534 budget proposed for 2000-2001 was approved as presented in the agenda/meeting material. Projected revenues include the remaining $100,000 grant scheduled from the Knight Foundation, and a possible $50,000 from the SDX Foundation and/or other sources. EXECUTIVE DIRECTOR'S REPORT Nancy Monson said most of the items that would be in her report had been covered. She was pleased to note the representation of a Canadian group at the meeting. The next meeting of the board of directors will be Saturday, Oct. 28, in Columbus, Ohio in conjunction with the SPJ convention there. SPJ's FOI conferences will be all day Friday, Oct. 27. We adjourned at about 9:30 a.m. Minutes prepared by Herb Strentz.
Records: Access advocates are concerned that the governor wants to privatize all state computers and thus state records to a private entity, EDS.
Audit: News of the results of a records audit will be out in the fall. A preview: a great lack of compliance by local officials.
Mediation: A study of the mediation program run by the Attorney General's office shows that the staff successfully mediated the access dispute for 73% of the 339 cases.
Official Jailed: A school board member was sent to jail for violating the state's access laws (see other FOI-L posts on this: http:listserv.syr.edu. Click on archives; then FOI-L. Search by author name: Sandra Chance)
Governor: Guess the topic of Governor Roy Barnes; first legislation once he took office? Access. He wouldn't introduce anything else until the legislature passed his bills opening up records for citizens.
Laws: One of those laws mandates officials return documents in 3-days. Or they must explain the holdup and when the records will be ready. Another law adds criminal penalties for a violation of access laws. A third requires public officials to fill out a sworn affidavit certifying why they closed a meeting. In Georgia, it's a felony to swear falsely.
Privatization: A local physician/attorney warns
that privatization in health care is making records and
meetings of formerly public hospitals inaccessible.
contact: Hollie Manheimer, 404.557-7103, gfaf@mindspring.com
Police reports: Illinois reporters have been having trouble getting basic information from police agencies. The Press Association took a new tack: Rather than amend the access law, amend other laws that apply to police. The new law requires police to give to the media as soon as practical (at least within 72 hours) the following: name, age, address and photo (if taken) of arrestee; charges; time and location of arrest; name of investigating agency; if incarcerated, the time and date person was received, discharged or transferred and any bail or bond.
Lawsuit: As part of a "Gift Ban Act", seven commissions
have been formed to deal with ethics issues related
to public officials, but the meetings are specifically
exempted from the state FOI. After no success in
amending the law to open access, in early May the
IPA coordinated a lawsuit in which 350 newspapers
are suing the state requesting open meetings for the
commissions.
contact: Beth Bennett, Ill. Press Asso 214.241.1300
govtipa@aol.com
New Group: FOI Indiana, a state coalition, is six months old. Reporter Bill Theobald is co-chair.
Legislation: Theobald says in the wake of a statewide records audit:, the legislature has passed the most significant legislation on access in 20 years:
+The new Access Counselor, Anne Mullin O'Connor, is having an impact in access and training. Her advisory opinions are being respected across the state. The position is now approved and funded by the legislature so it can continue despite who's in the governor's chair.
+A new law gives plaintiffs who win access suits their fees and costs. +Another law outlines what agencies can charge for records: the cost of paper and per page copying cost, not labor or overhead. contact: Bill Theobald, 317.630.9591
Video: A 27-minute video on FOI has been distributed
around the state as part of a training program. The video
also won a Society of Professional Journalists Award.
contact: Ian Marquand, ian@kpax.com
Audit: Gannett Newspapers conducted a Records Audit of about 1/3 of the communities. Read it at http://www.injersey.com/access
New Group: A group including representatives of the media, Common Cause and the League of Women Voters is designing a new statewide coalition.
Hearings: The New Jersey State League of Municipalities
is holding three sessions on access to records and meetings.
contact: Mark Mittelstadt 609.392.3622
Police discipline: The highest court in the state declined to give media access to police disciplinary actions.
Privacy: A Senate task force on privacy invasion that is holding public hearings throughout the state discussing stalking, identity theft, and use of personal information in public records. Cameras: There's a glimmer of hope for getting cameras back in the courtroom. The Assembly speakers has told the New York Newspaper Publishers Association that he's drafting a bill. Assembly Speaker Sheldon Silver told me two weeks.
contact: Barbara Croll Fought, 315.443.4054 bcfought@syr.edu
Audit: Students at Brown University recently published
a booklet outlining their problems in getting access to
basic records.
contact: Tom Heslin, theslin@projo.com
Fundraising: The FOI Foundation of Texas is having
great success with a fund-raising technique in which it
holds a banquet to honor a prominent person in Texas.
The honoree's friends and contacts are then
solicited to honor the person with contributions to the
FOIFT's endowment.
contact: Nancy Monson, foift@reporters.net (214) 977-6658
Florida state veterinarians, who sell rabies vaccine medicine, began losing the vaccine business to direct marketers who got the names of dogs and addresses from public records. With a straight face, the vets' lobbyist told legislators that dogs had a privacy interest in protecting their addresses from disclosure! More surprising, the legislators bought the argument. You can't get Fidos address anymore in Florida. [From Sandy Chance, asst. director of the Brechner Center, University of Florida.]
Results of a new survey by an open government coalition
in California show widespread support for access to information
among likely voters. (NFOIC provided the seed money for the
survey through a Knight Foundation grant).
A majority of likely voters in California (63%) said they
agreed that despite California's open meetings laws, city
councils and the school boards conduct too much important
business in private. 65% said that much of the information
forming the basis for state and local government
decisions is not easily accessible to the public.
Here's one really interesting finding -- Looking at the
demographics, the group that supported open government
the most were Republican women.
71% of all respondents said they'd advise their local
legislator to strengthen freedom of information laws.
All this, despite another finding from the study showing
that 77% had not seen or heard anything lately in the news
about state freedom of information or sunshine laws.
[from Dan Weikel and Ray Herndon of the LA Times]
THE PUBLIC WANTS EDUCATION, TOO
Jennifer LeFleur of the San Jose Mercury News is regularly writing
a public records education column on the op-ed page. She says the how-to
column getting a great response.
Here's a follow-up on the Indiana newspapers project
on access. In February, seven newspapers did a records
audit by sending journalists acting as citizens into every county
asking for five specific records. Together they published front
page stories and subsequent series chronicling the widespread
denial of access.
The coverage got a lot of attention. The legislature has
been studying the issue. The governor appointed a task force
that has just finished a series of hearings around the state
and will be discussing legislative proposals next month.
The governor has also appointed a Public Access Counselor,
a new fulltime ombudsperson. She's fielding calls and going out
to educate the public. Her phone log shows that 62% of her
calls come from the public, 22% come from public officials,
16% come from media. [from Larry Lough, The Starr Press,
Muncie Ind.]
News Sentinel (Knoxville) reporters came across records of how taxpayer money was being spent by defense attorneys for the defense of a serial killer. Intriguingly, the records showed, among other things, that the defense lawyers seemed to be eating a lot of food at the most expensive French restaurant in Knoxville! After interviewing the attorneys about such expenses, the reporters learned that the attorneys had contacted the judge who quickly issued a TRO barring the paper from publishing anything from those records. The News Sentinel violated the order and printed a story the next day, along with a sidebar saying the order was a prior restraint and explaining why it was printing the story. The paper is now threatened with contempt and is appealing the order.
After a three year fight, reporters will be able to get into political party caucuses starting January 1, 1999.
The FOI group in Montana is in the midst of a major public education effort. They've produced a clever, well-scripted 30-minute video, FOI in Montana, for all media organizations to use in training. When members of the state information offices say it, some were heard to mumble, "I didn't know that." Members are also taking it on the speaking circuit to Rotary and Kiwanis. [from Ian Marquand, KPAX-TV, Missoula, MT]
Here's a summary of one of the panels at the recent SPJ
Sunshine Chairs meeting in Nashville.
Too much justice is happening behind closed doors. That
was the complaint of panelists at the SPJ Sunshine Chair
training event in Nashville recently. The panel, "Secret
Justice," included attorneys and journalists from around the
country complaining about private justice companies,
confidential settlements and new restrictions on media
at the courthouse.
Roy Herndon of the Los Angeles Times warned the
audience to beware of rent-a-judge operations. He said
one company, Jams-In-Dispute, now resolves nearly 10%
of the civil actions now in Orange County.
The company uses retired judges and Herndon fears
there's too cozy a relationship between sitting judges who
refer cases out to their former colleagues now working for
Jams-In Dispute. Later some of those referring judges retire
and go to work for Jams, as well.
Herndon wryly noted that Jams-In-Dispute didn't
have a code of ethics until the judges in a panel that
awarded $300 million were taken on round-world jaunt by
the winner in the lawsuit.
He said Bank of America, MCI, Allstate, and other
big corporations have mandatory arbitration language in
their service contracts. This means customers have
surrendered their constitutional right to a trial if they
get into a dispute. And most dont know it.
Kirsten Mitchell, Raleigh bureau chief for the Wilmington Morning News, kept the audience riveted as talked about one court's attempt to keep a settlement in a big trial secret. A federal court judge is attempting to punish her and her newspaper for revealing the $360 million settlement in a class action suit by Wilmington mobile home park residents against the oil company, Conoco for polluting drinking water. She found the settlement figure during what she calls, "20 minutes of routine newsgathering" in which she perused a court file. The clerk had taken some materials out but had left in an opened envelope that contained the settlement.
Now Mitchell is facing a $1000 fine and her newspaper
faces a $500,000 fine after the paper reported the settlement.
The original reporter on the story, who had earlier gotten the
confidential settlement figure, wont give up his sources and is
facing jail time.
Richard Goehler (GAY lor), a Cincinnati attorney, complained
that too often litigants use state courts as a private dispute
resolution mechanism. Even though parties are using the
publics courts, they try to keep their dispute private. Goehler
was involved in the so-call Business Week case (Procto
and Gamble v. Bankers Trust), in which the newsweekly
was restrained from printing information about the case
because of protective orders.
Goehler says that too many judges are abusing the court
rules that allow a protective order upon good cause shown
and are instead routinely handing these out without any showing.
California attorney Karen Fredericksen reported that while
grand jury documents are off-limits in many states, Californians
get access to many of them, once an indictment has been
handed up. She encouraged reporters to make sure they
know state and local court rules which may give them more
access than they thought.
While they may get more documents than many of the rest
of us, Los Angeles reporters cant freely roam the courthouse
as they used to. Dan Weikel of the Los Angeles Times says a
media group has been able to loosen up the new restrictions
somewhat. However, reporters can only conduct interviews in
designated areas in the courthouse and photographers are restricted as to where they can shoot both inside and outside.
Ian Lind, Common Cause Hawaii and the Hawaii chapter of the Society of Professional Journalists urged the Office of Information Practices to ditch its long-worked-on administrative rules governing release of government records.
They cited programmed delays in release of records, high costs and lack of an affirmative declaration putting the onus on government to act quickly.
Information advocates are concerned about draft rules promulgated by the state Office of Information Practices (see attached article). The rules establish specify requirements for requests, set time limits for agency responses, and for the first time authorize search and review fees. Public hearings on the proposed rules are expected later this year. The rules and an accompanying "impact statement" prepared by OIP are available online at http://www.hawaii.gov/oip/rules_home_page.htm.
The Legislature recently increased the minimum charge for copies to 50 cents per page. The provision as inserted into a broader bill during a late-night conference committee meeting and without prior public discussion or notice. There was no opportunity for public comment on the proposal. Despite these shortcomings, the bill was passed into law.
State law also allows agencies to charge the actual cost of producing records, including unspecified overhead charges that can be included. Future disputes over fees are likely to arise as agencies attempt to recover costs far beyond the incremental cost of duplication.
In addition, search fees of $10 per hour and review fees of $20 per hour proposed by OIP are expected to draw a strong public reaction.
Hawaii has closed off public access to most vital statistics. As a result of amendments passed by the Legislature in 1997, birth and death records are available only to relatives, descendents or their agents, or persons with a direct need for the info (for example, to complete a land title search). Even access to index information has been limited, and will no longer include the date of the birth or death.
Progress has been inconsistent, with state and county agencies moving to provide access to electronic records with varying degrees of success. The City and County of Honolulu has the most consistent system which provides a standard fee for most electronic files. The county recently allowed a private vendor to distribute its GIS data in a CD set, to be sold for approximately $500.
State agencies have been less open, although some have begun to make limited records available on the Internet.
Public worker unions have led a 10-year battle to restrict disclosure of information regarding misconduct or disciplinary actions involving their members. The unions have been successful in convincing the Legislature to restrict and/or delay such disclosure until disciplinary actions are final and adminstrative appeals have been exhausted. Salary information of unionized workers has also been restricted, so that only salary ranges of employees covered by collective bargaining agreements are made public.
OIP was created in 1988 to administer Hawaii’s public record law. During its first six years, took a strong stand favoring public disclosure in a series of legal opinions. However, a change of leadership in 1995 and the loss of key staff members have reduced the effectiveness of the office. The office’s budget has now been slashed by a third, at the same time that its responsibilities have been extended to include open meeting provisions of the law. OIP is also being moved from the attorney general’s office to the lieutenant governor’s office, and its future is now in doubt.
The Honolulu Advertiser has taken the lead in litigating FOI cases under state law. The newspaper has pursued a number of cases in the last two years involving access to contracting records of subcontractors on a large state construction project, family court records involving highly publicized child abuse cases, and vital statistics.
Following a March 1997 workshop led by NFOIC President Sue Hale, a number of news media and community groups joined to form a coalition to promote networking and FOI advocacy.
For further information, contact: Ian Lind, reporter, Honolulu Star-Bulletin (808) 525-8613.
Sandra Oshiro, reporter, Honolulu Advertiser (808) 525-8078
Stirling Morita, Honolulu Star-Bulletin & SPJ state FOIA chair, (808) 525-8642.
SPJ Hawaii Professional Chapter homepage, includes FOI issues & information. http://ourworld.compuserve.com/homepages/SMorita
Honolulu Star-Bulletin online edition, includes searchable index.
Office of Information Practices homepage. Includes link to full text of prior OIP opinions.
Hawaii state government homepage
Media attorney Jeff Portnoy says proposed rules governing openness of government records are "not access friendly."
The draft being worked on by the Office of Information Practices appears to be slanted for those who hold or disburse public records, he said.
The Open Government Coalition of Hawaii is preparing a detailed response to the proposal, but there is one problem: The Office of Information Practices won't release the latest revision sent back by the attorney general's office.
Portnoy said the rules allow an official to withhold release of records up to 50 days, which is too long. This could result in the requester losing interest in getting the records or the newsworthiness of the documents wearing off.
The rules are somewhat patterned after the federal Freedom of Information Act, but Portnoy noted that the federal government has many agency locations and far more records.
The exemption from fees for accessing records is too low, Portnoy said.
Ian Lind said the rules don't set reasonable reprogramming costs for people who need computerized information. That would be a deterrent to getting electronic records.
Bev Keever said the rules call for the requester to pass on personal information while previous court rulings have established that such information is not necessary to get access to Ethics Commission records.
Larry Meacham said the rules don't specify that an agency must give a reason for nonproduction of records.
The next meeting of the steering committee of the coalition is to be 6 p.m. July 23 in the second-floor conference room of the Honolulu Star-Bulletin.
An organizational meeting of a new FOI coalition was held June 7 in the first-floor conference room of the Hawaii Newspaper Agency building, 605 Kapiolani Blvd.
A steering committee has been formed to meet over the summer to draft bylaws, seek tax-exempt status and initiae preliminary coalition activities:
Steering committee members will meet at 6 p.m. July 2 in the second-floor conference room of the Star-Bulletin on:
Representatives from Common Cause/Hawaii, the Honolulu Community-Media Council, League of Women Voters, Hawaii chapter of the Society of Professional Journalists, Honolulu Star-Bulletin, KITV and the Waikiki Health Center and Jeff Portnoy, University of Hawaii journalism professor Beverly Keever and Mary Ann Oros have been meeting on how to set up the organization.
Sue Hale, president of the National Freedom of Information Coalition, talked about nonprofit organizations banding together to prevent erosion of the free flow of information during a workshop March 8 and a speech March 9.
A special four-hour session on how to put together a Hawaii coalition was held on March 8 in the first-floor conference room of the Newspaper Building, 605 Kapiolani Blvd.
A meeting was held at 1 p.m. March 22 in the first-floor conference room of the Hawaii Newspaper Agency building for interested people to go over possible name for a coalition, bylaws and incorporation papers.
The group decided to call itself Open Government Coalition of Hawaii. The coalition advocates, promotes and supports openness in government through a program of research, education and community action, and challenges government policies that conflict with the public's interest in openness.
Hale was also be the speaker at the Freedom of Information Day brunch, sponsored by the Hawaii Professional Chapter and the Honolulu Community-Media Council, on March 9.
-- To help start up FOI organizations
-- To initiate joint fund-raising efforts with state organizations.
-- To develop FOI programs, projects and publications that can be utilized with no, or minimal, modification.
-- To support the states in their efforts to obtain funding for individual programs.
-- To establish task forces that will look at critical issues and make recommendations or collective national action, or prepare education reports or other publications.
-- To meet annually to share experiences and information and to brainstorm.
-- To educate the public generally on FOI issues.
Panelists: Forrest "Frosty" Landon, executive director of the Virginia Coaliton for Open Government and retired executive editor of the Roanoke Times; Nancy Monson, executive director of the Freedom of Information Foundation of Texas; and Diana Baldwin, president of FOI Oklahoma.
One thing triggered an FOI coalition in Virginia: The news media were on the defensive.
"The need was there: an eightfold increase in measures to chip away at access," Landon said. "We're losing this, and it is not seen as a public interest issue."
The mandate from the state press association: Establish a more broadly based advocacy group for government openess/accountability.
The group, with strong financial backing from the press association (an endowment of $300,000 from advertising), sought contributions from major papers and secured $20,000 grants from two papers. Then it sought public support: librarian associations, America On Line; college newspapers, the League of Women Voters.
There were basics to contend with, first. The IRS, U.S. bulk mail. Then lining up a board. Landon secured help from two former governors, who leaned in favor of FOI matters; one came on board, the other stayed in the background.
He said there is no one way to form a coalition.
Monson said news media need to "raise the level of expectation. It's about freedom and it's about democracy.
"Journalism can't do it alone," Monson said. "We've got to educate the public to be passionate (about FOI issues)."
Baldwin said FOI Oklahoma has no paid staff. It is has a porject, "we go beg for money," she said.
The group holds workshops with community groups and local newspapers. They get the place and provide the public relations or advertising, and FOI Oklahoma provides the people to talk about open meetings, open records and moderate a panel of officials and media.
Also, the group has what is popularly known as a circuit rider. If a reporter has a problem, FOI Oklahoma will go to that meeting or help the reporter with a records request meeting with the official, Baldwin said.