Recalcitrant Officials Stymie Public Records Requests in Massachusetts

The Boston Globe brings us this story of the frustrations of dealing with obfuscatory officials who evade public records laws by charging exorbitant fees or by unreasonable delay.

Here is an excerpt, showing how the state's laws make it easy it is for Massachusetts officials to evade the open records laws:

Jon Albano, a First Amendment lawyer with Bingham McCutchen who frequently represents the Globe in battles for public records, said the lack of an enforcement mechanism in Massachusetts allows officials to virtually ignore Galvin’s demands.

“They don’t have to comply with his orders, so they treat them like advisory opinions,’’ Albano said. “Across the state, government officials really and truly do not take the public records law as seriously as they take their other responsibilities.’’

Albano said enforcement of the law would be enhanced by a streamlined process for hearing public records disputes in the courts.

Indeed, with no power to fine or otherwise discipline uncooperative officials, Galvin must rely on the attorney general’s office, which is often reluctant to take action against state agencies in public records cases, perhaps because the office represents those same agencies in other legal matters.

And if the attorney general declines to act, those stymied in their request for public records must rely on the courts, where the cost of filing a lawsuit may be prohibitive and the time it takes to obtain a decision may render the value of the information moot.

NFOIC Summit: Public access threats

Richard J. H. Varn, director of the Coalition for Sensible Public Records Access and the chief information officer for the City of San Antonio, spoke on the threats to and values of public access. Here's part one of notes on his 2009 NFOIC Summit session:

Threats to public access:

• Identity theft and security: The problem with identity theft is not with public records. It would flourish even if all access was cut off. A social security number is only worth about 10 cents on the black market. Concerns over identity theft, however, had led to more restrictions to public access than any other issue in the past couple decades. When public identifiers are not made public, it is nearly impossible to distinguish one person from another. It leads to more false positives and false negatives.
• Implementing public policies by redacting the truth: Because people with criminal records have difficulty finding jobs, apartments, etc., there has been a trend to expunge convictions from public records. However, this doesn't hide the fact that someone has been convicted. It's still in the police blotter archives, and a fellow co-worker could definitely reveal a prior conviction that another employee tried to hide. Redaction doesn't solve the problem. What would solve it is an employability of felons act. Facts can still be acted on. These people need rights.
  
• Increased fees beyond marginal cost and self-funding portal: Florida, for example, passed a cost increase to help solve its budget problems.
• Security concerns lead to overclassification.
  
• Coalition failures: Exemptions for media aren't enough. Citizens should have rights to the same information, and coalitions should champion for them. These citizens who request records are, after all, sometimes valuable sources.
• Private technology, public business: Using private e-mail accounts to conduct public business is ever increasing.
• New technology, same old issues: Just because it's Twitter or the latest social networking fad doesn't mean anyone is excused from providing access and charging only marginal costs.
• Enforcement failures: Obviously, many state coalitions are struggling to add teeth to their state's FOI laws.

Sun isn't shining brightly in Midwestern states

In honor of Sunshine Week, the Citizen Advocacy Center released a study on open-government laws in Michigan, Ohio, Illinois, Wisconsin and Minnesota. The research shows that open-government laws are "sporadically enforced," training for state employees on these policies is poor, and citizens are not provided with opportunities to participate rather than just attend meetings. Reports are available for each of the five states on the Midwest Democracy Network Web site, linked below.

While every state in the nation has laws that require public access to government records and meetings, in five Midwestern states that were recently analyzed, documents are often kept secret and doors can remain tightly closed.

According to a study released Wednesday by the Citizen Advocacy Center in celebration of Sunshine Week (March 15-21), open government laws in Michigan, Ohio, Illinois, Wisconsin and Minnesota have systemic barriers that chill public participation and access to government, which weakens our democratic system designed to be by, for and of the people.

More here.

Iowa Update

As Iowa lawmakers look at revamping and putting teeth into enforcement of the state’s open meetings and open records laws, the case of Riverdale has received plenty of notice.

A rewrite of the laws that would, among other things, create a new state board with powers to rule on violations and impose fines on offending officials, “would go a long way toward stopping the kind of abuse we’ve seen in places like Riverdale,” said state Sen. Mike Connolly, D-Dubuque, a chief sponsor of the new law. The attorney general’s office and county attorneys are now responsible for enforcement.

Riverdale was among a few high-profile cases that prodded plans to revise the state’s open government laws, said Corwin Ritchie, executive director of the Iowa County Attorneys Association. Other cases included the Central Iowa Employment Training Consortium scandal and controversy over the release of information during the process of hiring the president at the University of Iowa.

Alan Kemp, executive director of the Iowa League of Cities, which opposes creation of the proposed board, said a 2006 court ruling in a case that ordered Riverdale to turn over records to citizens and pay their attorney’s fees illustrates that the current enforcement system works.

But, as Iowa and the rest of the nation observe Sunshine Week in honor of laws that protect openness in government, Allen Diercks said lack of enforcement by the attorney general and county attorneys hobbles the ability of residents to know what their elected officials are up to.

“It’s all about the arrogance of government,” said Diercks, a Riverdale resident who has taken the town of 656 to court twice since 2005 over open government disputes. “They try to bully those of us who want to hold them accountable into a corner so we’ll go away. The attorney general or any county attorney who doesn’t want to enforce the law should just resign.”

More here.

The Sheriff Gets Fined for FOI violations...

A heartwarming tale for the holidays, in which the lawman runs afoul of the Sunshine Law...you do the crime, you pay the fine.

Madison County (Va.) Sheriff Erik J. Weaver must pay a $250 fine and the plaintiff’s court fees for willfully violating the state’s Freedom of Information Act, a judge ruled Tuesday in Madison County General District Court.

Experts are calling it a potentially precedent-setting case regarding how public officials are punished for failing to comply with open records requests.

Leigh Purdum, a former office employee under Weaver, brought suit when the sheriff refused to identify the people he had appointed to a newly formed citizens advisory board.

Purdum also sought other information about the board, including its meeting dates, the criteria for choosing members, topics of discussion, goals and objectives, and copies of previous minutes.

After Tuesday’s ruling from Judge Robert H. Downer Jr., specially appointed from Albemarle County, Weaver produced the names of the 13 board members.

Maria J.K. Everett, executive director of the state-run Virginia Freedom of Information Advisory Council, believes this is the first time a judge in district court has ruled an elected official willfully violated Virginia FOIA laws.

Everett, who has served in her position since the office was created in July 2000, called the ruling “pretty significant.”

Jennifer Perkins, executive director of the Warrenton-based Virginia Coalition for Open Government, said it’s “a huge step in the right direction.” She said similar cases have always resulted in no monetary punishment.

“It’s a statement,” Perkins said. “The thing we’ve been really frustrated with is (judges’) reluctance to find willful violations when it’s clear to everyone else. … What’s great in this case is that you actually got the punishment.”

More here.