Bills would chip away at N.J. public's right to know

There is an on-going battle being waged between record keepers and record seekers. The Star-Ledger and citizens often go to court to force reluctant agencies to turn over records they are required to release under the Open Public Records Act [OPRA].

Meanwhile, OPRA constantly is under attack by legislators who apparently don’t want the public to see what government is doing.

Two Assembly bills are the latest attempts to weaken OPRA. One would set per-page copying costs for OPRA records at 10 cents per letter-size page and 15 cents per legal-size page...

But here’s the kicker: An agency could charge those fees for documents delivered electronically.

Read more here.

Calif. bill to relieve losing FOIA plaintiffs

A California bill recently signed by Gov. Arnold Schwarzenegger will relieve losing FOIA plaintiffs from having to pay attorneys' fees, the Reporters' Committee for Freedom of the Press reported. Fees could only be awarded if the court decides that the lawsuit was frivolous and without merit. The bill was passed in an effort to "curb the chilling effect that can accompany the assignment of extensive fees to plaintiffs who unsuccessfully sue the government to enforce the California Public Records Act." The law takes effect Jan. 1.

A California bill that will relieve losing plaintiffs in Freedom of Information Act lawsuits of having to pay attorney's fees passed the state's legislature last month. It is now awaiting a signature from the governor.

Under the proposed law, governments that prevail on an "anti-SLAPP" motion in FOIA cases will not be able to collect attorney's fees for claims brought against them in good faith. Fees could only be awarded in limited situations, such as when the court decides the action is frivolous and without merit. The state anti-SLAPP law allows defendants to have frivolous suits dismissed early.

More here.
Also, New Calif. law limits cost in public records fight, San Jose Mercury News.

N.C. lobbyists argue against creating an open government unit

The North Carolina House Finance Committee heard arguments on a bill that would create an open government unit with the Department of Justice, the AP reported. The department would issue advisory opinions and provide mediation services. However, Paul Meyer with the North Carolina League of Municipalities says the unit could slow down information access because the more than 1,500 state and local government agencies would feel forced to ask the open government unit for an opinion rather than their own attorneys.

City and county lobbyists argued Wednesday that a proposal to create a new state office to handle open government disputes and a change in how legal fees are awarded could delay further the release of documents.

The "Open Government Unit" with the Department of Justice would issue advisory opinions about public records questions and attempt to work out public records and open meeting issues without going to court.

The bill, heard but not voted on by the House Finance Committee, also attempts to make it easier for news media outlets and individuals suing in public records lawsuits to collect attorney fees if the documents are released.

More here.

NFOIC Summit: Wisconsin FOIA roundup

State-by-state updates at the 2009 NFOIC Summit: Christa Westerberg of Wisconsin Freedom of Information Council provided a summary of her state's FOI news.

• Wisconsin has seen good legal developments because of court cases that clarifies what constitutes good notice and when quasi-government organizations are subject to open meetings and records laws.
• The state has no consistent retention policy on any records. The attorney general says agencies must have a policy, but it doesn't matter what's in it.
• Legislators are working on a shield law for reporters' notebooks and sources.
• We're trying to model Minnesota's policy for police records.
• The state could use a better fees policy. Fees are now issued at the discretion of the custodian so there's a lot of arbitrariness.
• The state legislature is allowed to hammer out the budget in some private committees. Two provisions in the proposed budget include: the expungement of certain felon records and the elimination of designating official state newspapers so that required government notices could just go online without being published in print publications.
  

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.

County sued for possibly overcharging for records

California Public Records Research Inc. filed suit against Monterey County Clerk's Office after the office charged $2 per page for records rather than actual copying costs, estimated at 10 cents per page, The Monterey County Herald reported. "County Counsel Charles McKee and Clerk-Recorder Steve Vagnini, who is named in the suit, said when it comes to copying public documents, records in the clerk's and assessor's offices fall under different statutes than the Public Records Act." Similar suits have been filed in all 58 California counties.

If you've been paying $2 per page for records at the Monterey County Clerk's Office, you're due a refund, according to Southern California attorneys who are suing the county for allegedly violating the state Public Records Act.

Attorneys for California Public Records Research Inc. say state law allows local agencies to charge only the actual costs of copying public records, including real estate records maintained by county clerks.

In their class action lawsuit, filed Thursday in Monterey County Superior Court, Clifton Hodges and Donald Ricketts maintain those costs amount to no more than 10 cents per page.

More here.

Citizens make greater use of FOIA but face obstacles

Kim Petitt considers herself a watchdog and is a member of the Concerned Citizens of Coconut Creek, the Sun Sentinel reported. She was appalled, however, when her request for the city manager's e-mail records and the city's credit card spending records cost her $170. The Commission of Open Government Reform is recommending the removal of the provision for "special service charges" related to requests that require "extensive use" of resources or personnel.

Kim Petitt, a Coconut Creek resident since 1997, recently had a civic awakening.

Dismayed by a proposed big-box retail development that she thought would hurt her neighborhood and disenchanted with the city's leadership, she decided to start fighting City Hall.

"The City Commission seems more in lock step with what the city manager and developers want, not what the citizens want," said Petitt, 47. "I said, 'Wait a minute, this is my city. I'm going to take it back.'"

More here.

Miss. needs clarification on what agencies can charge for records

The Biloxi School Board told Keith Rogers it would cost $84 for copies of exhibits presented at a School Board meeting, the Fort Mills Times reported. That included the cost of research, even though the information was already available online to School Board members with a password. The governor told The Clarion-Ledger it would cost more than $14,000 for gubernatorial e-mails spanning four days. That included "$7,500 to hire private attorneys to review the e-mails for exempted material and $5,400 to bring in an out-of-town computer consultant."

Biloxi resident Keith Rogers thought he would be able to review and copy exhibits the School Board used to decide that an 52-year-old elementary school in his neighborhood will be turned into an alternative school next year.

"I thought I would get them because they are public records," Rogers said. "The secretary at first was very defensive about releasing them at all."

She eventually informed Rogers he could have the records for $3 a page. The school system's standard charge includes the cost of copies, research and time, even though in this case the records already had been assembled and were available on the Internet to board members who had passwords.

More here.

Ore. mayor's office tries to charge $1.5 million to pull records

When KATU in Portland, Ore., initially asked for Mayor Sam Adams' phone, calendar and e-mail records, the mayor said other media outlets had requested them so "they're around already." Soon after, KATU received estimates of more than $1.5 million to receive the public records. ("According to the Office of Management and Finance, it would take a single employee 10 years to get the records.") A new estimate of $194.03 was later provided, but KATU has yet to get the records.

In Oregon, public records are open to everyone and in many cases are free.

So when KATU received a quote of $1.5 million from the city to pull public records from Mayor Sam Adams' office, you can imagine the sticker shock.

It all started weeks ago when the mayor issued a public apology over the scandal involving his relationship with a young intern. During the press conference, KATU requested Adams' phone, calendar and e-mail records from the spring of 2005, when the then city commissioner was developing a relationship with 17-year-old Beau Breedlove.

More here.

Wash. bill to rein in harassing FOI request may hurt legitimate ones

What's to stop a persistent person with an FOI request from being deemed a harassing one? That's the question concerning many open government advocates, the Seattle Times reports. State officials say some FOI requesters, such as prisoner Allan Parmelee have become nuisances but also on that list is a woman fighting the school district's treatment of her autistic son. One bill could make inspection fees for public records legal in the state, which currently can only charge 15 cents per page if the requester wants copies. Others advocate increasing copying fees and increasing the number of documents made confidential.

Washington's Public Records Act says government documents are available for anyone to scrutinize. From the mayor's e-mails to the governor's travel expenses. All you have to do is ask.

But some people are asking way too much, flooding agencies with costly demands, in some cases just to harass public officials — or at least that's the story being told to the Legislature by cities, school districts, ports and prisons.

They're pushing bills to allow governments to charge higher copying fees, make more documents confidential — even seek court orders to bar requesters' intent in "annoying, tormenting or terrorizing" government workers.

More here.

Dunbar, W. Va., charges $10-an-hour research fees

Two law students at West Virginia University are researching whether Dunbar city officials can legally charge the $10-an-hour research fee for filling FOI requests, in addition to the 35-cent-per-page photocopy charge, The Charleston (W. Va.) Gazette reported. The city said the fee is necessary because staffers are overwhelmed with requests; however, only six FOIA requests were filed since November.

Dunbar city officials have gotten six requests for information under the state Freedom of Information Act since November.

In January, members of Dunbar City Council decided to start charging a $10-an-hour research fee to look up public information to fulfill FOIA requests. City officials said the fee was necessary because employees in the city clerk's office were overwhelmed with requests for information.

City officials also charge 35 cents a page for photocopies.

More here.

Miss. bill would curb inflated fees for public records

Promising news in Mississippi! A bill that would allow government agencies to only charge based on the lowest-paid, competent staff person's salary for reproduction costs has made its way to the Senate, the Associated Press reported.

A bill that cleared the Mississippi House on Tuesday says government agencies could only charge their actual costs for providing public records.

An agency would not be allowed to inflate the cost by including amounts paid to attorneys or others who don't work directly for the agency.

An agency would be allowed to charge for the time it takes a staff member to gather or reproduce the records. But the charge would be limited to the salary of the lowest-paid staff person competent to handle the request for documents.

More here.

Wash. legislation could lead to higher FOI fees

The Seattle Times suggests that local governments forget about trying to raise fees for FOI requests and start searching for innovative, cheaper ways to fill requests, such as via e-mail or CD. A bunch of bills introduced would increase the maximum per-page copying charge from 15 to 25 cents, among other tactics that would discourage someone from submitting a request.

Munipal governments are so emboldened by court victories that help keep their secrets, they are getting even more creative about ways to discourage the public from getting documents to which they are entitled.

The common objective of a trio of bills introduced by Sen. Darlene Fairley, D-Shoreline, is to boost the costs of getting copies of public documents — a move sure to discourage people with the right to keep tabs on their government.

This effort in blue Washington is especially ironic considering one of President Obama's first acts as president was to direct his agencies to open government records under the Freedom of Information Act — and to use technology to make documents more accessible, more quickly and cheaply.

More here.

Fla. commission lays out wish list for open government improvements

Florida's Commission on Open Government Reform released its 2009 report, which both assesses and offers recommendations on Sunshine Law issues, such as exemptions, fees, the impact of information technology, fiscal transparency, compliance and training.

More here.

Fla. commission debates fees for records requests

The Florida Commission on Open Government has stirred up controversy in its discussion of proposed changes to the Sunshine Law. The proposals would curb agencies from charging high fees and require electronic records to be provided at cost of duplication. The redaction of confidential information from data would no longer be considered a "specialized service requiring additional charges" either. The opposition is arguing that with increasing costs and smaller staffs, filling requests could become a problem if these changes come to pass.

Two members of the Commission on Open Government — the head of the Florida Department of Law Enforcement and the Hillsborough County attorney — vigorously oppose the panel's plan for ending stiff charges for providing copies of public records to citizens.

But the head of the First Amendment Foundation, who chairs the nine-member panel that Gov. Charlie Crist created to review exemptions to Florida's "sunshine" statutes, said government agencies had ample opportunity to object to draft proposals set for final consideration next week. She said the Legislature must prevent "exorbitant" charges that can run into hundreds of thousands of dollars for providing public information.

FDLE Commissioner Gerald Bailey and Renee Francis Lee, the county attorney in Tampa, wrote to JoAnn Carrin, director of the commission and head of Crist's office of open government, saying the cost of extensive record searches would be a hardship for already hard-pressed state, city and county governments. Bailey also said the open-government commission, on which he and Lee serve, did not take enough testimony from government agencies on the issue.

More here.

Tennessee joins number of states adjusting public records fees

Tennessee open records officials hope a hearing on Friday will lead to an outline of public records fees that strikes a balance between the concerns of those who file requests and those who fill requests. In addition to the actual duplication costs, the meeting is also expected to address charges for labor spent responding to requests.

Open records officials seeking to complete a fee schedule for records requests say a public hearing on Friday will help in trying to make sure all parties involved in the process are treated fairly.

Officials want input on proposed charges for duplicating public records. Right now they are proposing 20 cents for each standard black and white copy and 50 cents for each color copy.

The Office of Open Records Counsel is required to develop the schedule following legislation last session that updates the state's open records law. Those updates are the result of a reform initiative following the 2005 Tennessee Waltz corruption sting that led to convictions of five former state lawmakers.

More here.

$10 for a denial? Sheesh!

Shiawassee County, Michigan, Sheriff Jon Wilson may have violated Michigan's Freedom of Information Act when he charged The Argus-Press $10 for a one-page FOIA request denial.

A Freedom of Information Act request can be made by anyone to obtain information from public agencies.

Wow...imagine the market potential of charging $10 per DENIAL.....

The Argus-Press requested information regarding the Law Enforcement Information Network rights of former Corunna Police Officer Angelo Panos. The sheriff's department keeps record of who has LEIN rights within the county.

In Wilson's Aug. 18, two-paragraph denial, he stated, “...internal labor issues are not subject to FOIA. I have no knowledge concerning the details of Mr. Panos' employment issues.”

Wilson sent a letter to Panos Aug. 18 detailing Panos' employment issues. “Chief (Kim) Williams called Lt. (Mike) Ash and advised that you were no longer employed with the City of Corunna,” the letter to Panos reads. “At that time, Lt. Ash requested (Central) Dispatch to remove your LEIN rights.”

Wilson also sent The Argus-Press an invoice for $10 for the FOIA denial.


More here.

Missouri Judge Takes Dim View of Charges

According to an AP story:

A judge says he's inclined to rule that fees for getting driver's license records must follow Missouri's Sunshine Law.

Companies that buy driver's license and motor vehicle records in bulk sued to challenge a Revenue Department fee increase, alleging it violates the Sunshine Law. The department had charged a fraction of cent for bulk records but increased that to $7 starting May 1 to pay for a new computer system.

Cole County Judge Richard Callahan has already temporarily blocked the fee increase, citing the Sunshine Law's limit on how much the state can charge for copies of records.

Callahan held a hearing Friday on a permanent injunction. He said the Sunshine law seems to apply to the Revenue Department records, but he did not issue an immediate ruling.

Sticker Shock Over Fees In Missouri

A database that was about $500 is now...$28 million?

The Missouri Department of Revenue plans to charge more than five times what it is currently asking the public to pay for driving records under a plan that news media outlets say violates state law.

Under the policy set to go into effect May 1, the Department of Revenue will raise the cost for each driving record to $7 from $1.25. It also will exponentially increase the fees charged to those requesting records in bulk, including news media outlets.

The records contain information on licensing and driving convictions for Missouri motorists. Residents can request the records of any licensed driver to check whether a license has been revoked or someone has been convicted of drunken driving, for example. The release of personal information is limited by state and federal law.

Department of Revenue officials have said the agency needs to increase fees to recover its costs for providing the information.

More here.