Thursday, March 25, 2010

Freedom of Information: Your Key to Open Government

I attended the Jane Kirtley lecture “Freedom of Information: Your Key to Open Government.”
Dr. Jane Kirtley is the Silha Professor of Media Ethics and Law at the University of Minnesota School of Journalism and Mass Communication.

March 16th is National Freedom of Information Day, chosen because it’s James Madison’s birthday, and he’s known as the Father of the 1st Amendment. The week around March 16th is Sunshine Week, sponsored by the American Association of Newspaper Editors, which is “a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know.”

The 1930s was when the Freedom of Government Information story really begins. Previously, the federal government was fairly small and relatively weak, and keeping information secret was not as important. In the 1930s, with the Great Depression and the New Deal, the Federal Government expanded very quickly and grew more and more powerful. Information started to really be the coin of the realm, and so to be a power base and subject to a hoarding mentality.

On July 4, 1966 The Freedom of Information Act (FOIA) was signed into law. It “is a law ensuring public access to U.S. government records. FOIA carries a presumption of disclosure; the burden is on the government - not the public - to substantiate why information may not be released. Upon written request, agencies of the United States government are required to disclose those records, unless they can be lawfully withheld from disclosure under one of nine specific exemptions in the FOIA. This right of access is ultimately enforceable in federal court.” National Security Archive.

FOIA gets amended roughly every 10 years. The 1996 amendment ordered government agencies to put information online. Unfortunately it was an unfunded mandate. Here’s the text of the current FOIA law at the Department of Justice.

If a person or entity wants a piece of federal government information that the agency in question does not want them to have, the person files a FOIA request with that agency. It’s up to the agency to prove that they don’t have to provide the information based on current FOIA law. If the agency denies the request, the requester then has the option of taking the agency to court if they feel the request was denied unfairly. Given the number of courts authorized to hear FOIA trials, the agency can almost always find a judge who’s sympathetic to them and will decide in their favor.

Unfortunately, FOIA does not always work as intended. There are often delays (the oldest open FOIA request is from 1992), sometimes because an agency doesn’t want to release the information, but more often because of things like bureaucratic delays, lack of clarity in the law, and lack of resources.

The largest users of FOIA are commercial concerns that are looking for a financial advantage. They can also more easily afford to pay for court costs if their requests are denied.

Government agencies are required to report on their FOIA activities. The DOJ puts together an annual compilation of Annual FOIA Reports Submitted by Federal Departments and Agencies and Annual FOIA Litigation and Compliance Reports. Also, every year the National Security Archive at George Washington University does a FOIA audit for the departments of the Federal Government.

After 9/11/01, a lot of government information was hidden with national security used as the reason. Personal privacy is the current popular reason for withholding information. Kirtley says there are 2 ways to deal with concerns about general access to information that is potentially sensitive. You can suppress it, which she feels is short-sighted – you’re treating the symptoms, not the disorder, or you can pass very carefully worded laws that criminalize the misuse of such information and create a judiciary that vigorously enforces them. She prefers the latter option.

President Obama promised a new era of open government, explained in the White House’s Open Government Initiative. There are also new guidelines for FOIA. Unfortunately, there’s very slow progress getting them implemented in Federal Agencies.

The legislature is considering the Faster FOIA Act of 2010, introduced by Senator Patrick Leahy (D-Vt.), “which will establish an advisory panel to examine agency backlogs in processing FOIA requests. Under the legislation, the panel, named the Commission on Freedom of Information Act Processing Delays, will be required to provide to Congress recommendations for legislative and administrative action to enhance agency responses to FOIA requests. The panel will be required to identify methods to reduce delays in the processing of FOIA requests, and will be charged with examining whether the system for charging fees and granting fee waivers under FOIA should be reformed in order to reduce delays in processing fee requests.”

Minnesota’s answer to FOIA on the state level is the MN Data Practices Act.
Here’s an Abbreviated Fact Sheet and a Data Practices Overview.

Dr. Kirtley stressed the importance of legacy or traditional media. One of the great media roles is watchdogging the government, an example of which is the creation and sponsorship of Sunshine Week. With legacy media’s decline, these efforts also decline. Now the American Association of Newspaper Editors have so little money that most of the content on this year’s Sunshine Week website is recycled from last year.

Her last point was that we need to contact our elected officials and tell them we want them to take open government seriously and to get judges who will enforce laws vigorously and not just let things pass.

Government Documents Coordinator.

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