The grades are in, and it’s not a pretty picture. State FOI laws are, for the most part, failing to offer any meaningful recourse when citizens are denied access.
The Better Government Association (BGA) and the National Freedom of Information Coalition (NFOIC) teamed up this year to assess the responsiveness mechanisms in all 50 state FOI laws. I can’t say I was shocked by what we found — 38 states flunked — but I am saddened that despite more attention being paid to FOI issues than ever before, most citizens remain in the dark.
It’s a tough study, and the findings are really kind of brutal, but facts are facts. We looked at five factors: response time, appeals, expedited review, attorney’s fees and costs, and sanctions. Each state’s FOI law was compared against our criteria — no interviews or subjectivity at all. It’s just a straightforward statutory analysis — and as we tallied “F” after “F” we detected troubling trends.
The BGA rankings were prompted by years of run-ins with obstinate public officials. BGA investigators have been refused requests to examine state contracts and performance measures, denied everything from documentation of ambulance response times to the documents reviewed when making budgeting decisions, and ignored by officials in nearly every major office at one time or another. NFOIC coalition members share similar tales of frustration.
The rankings are a tough read, and some question the methodology — BGA didn’t interview, or look at the gap between the statutes and their implementation, but instead simply laid the statutes beside the criteria, and calculated a score. It’s a thumbs-up, thumbs-down scale, and some states have some of what’s needed to respond to FOI requests, but most don’t.
First, and most importantly, public records aren’t really open if bureaucrats can stall on responding. It’s the starting point for any discussion of FOI laws, really: does the state’s law demand that officials respond to FOI requests within a reasonable period of time? Does it have a response standard at all?
If a state law has no response data mandated by law, requesters are at the mercy of recalcitrant public officials who can stymie requests with the hope that the requester eventually throws up their hands and goes away. It’s like a tree falling in the forest: no one need know the request was even made, let alone denied, unless the citizen is dogged enough to stick with it to the bitter end.
Then, if the request is denied, there must be an adequate, timely appeals process, and the law must allow trial courts to expedite appeals, lest the news or public interest value in the records rot while the process grinds on and on.
Finally, citizens should be able to fight secrecy with a snowball’s chance of recovering attorneys’ fees and other legal costs. In the vast majority of states, that’s simply not the case. Instead, citizen requesters, seeking information from their government, face battalions of salaried lawyers, ironically enough, paid for by the tax dollars of the citizens across the table. Unless they happen to be independently wealthy, few citizens can face the prospect of a multi-year legal saga with little prospect of seeing legal fees, to say nothing of the fees that so many state FOI laws say courts “may” assess wrongdoers.
Want to guess how often a court that “may” assess fees in a sunshine case decided to actually do so? Rarely.
We have our work cut out for us. Few state FOI laws provide any meaningful way for citizens to seek redress for unlawful denials of access, and without those reforms, we’ll continue to bang our heads against the wall, while public officials take advantage of the fact to stall and delay.
This article was originally prepared for the National Newspaper Association’s Publishers’ Auxiliary by Charles Davis, executive director of the National Freedom of Information Coalition located at the Missouri School of Journalism. Mr. Davis can be reached at 573-882-5736 or daviscn (at) missouri.edu.