FOI Reform Efforts

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by Aimee Edmondson, NFOIC contributing writer

Sometimes it takes a juicy public scandal to get the citizenry interested in open government. Pennsylvania and Iowa got just that, but with mixed results for FOI reform. Pennsylvania has a new law. Iowa’s failed to make it out of legislative committee.

Why did one reform effort work and the other fail?

FOI advocates from both states discussed the push to rewrite their state laws during the National Freedom of Information Coalition’s 2008 FOI Summit in Philadelphia on May 9-10.

The Iowa bill would have created the strongest FOI enforcement agency in the country. But it was going to cost $500,000. The agency seemed too bureaucratic. It was perceived as a bill that would mostly help journalists. And bill sponsors were unwilling to accept amendments, said Kathleen Richardson, a lawyer and director of the Drake School of Journalism and Mass Communication.

“I am presenting a cautionary tale and some advice on the things I learned,” said Richardson, also executive secretary of the Iowa Freedom of Information Council.

The environment for reform looked promising initially. A series of controversies led the way in 2006. The state Board of Regents sparked public outcry when it carried out much of its search for a new president of the University of Iowa behind closed doors. The Iowa City Press-Citizen sued after the board conducted a “rolling meeting,” essentially a series of meetings on the same topic, without notifying the public. On top of that, the job candidates’ names were kept secret, and search committee members were required to agree in writing that they would not discuss the search outside the meetings.

In another FOI battle, the Des Moines Register sued a state job-training agency for repeatedly violating the state open meetings law. This was the same agency under investigation for misusing public funds, with four people involved indicted on fraud and conspiracy charges. The list of FOI battles and scandals in Iowa was long that year and FOI advocates were optimistic.

“The FOI reform bill included a lot of things we had been fighting for for years,” Richardson said. 

The new state board would respond to FOI questions, give informal advice and conduct investigations. The enforcement arm, however, scared a lot of people off. But the bill also included exemptions for draft documents and allowed for deliberative privilege, things FOI advocates opposed.

“We realized this was the first FOI bill that FOI advocates hadn’t actually written themselves, and there were aspects of it we didn’t like,” Richardson said.

FOI advocates realized later that they needed more of a grassroots effort, including more face-to-face meetings with lawmakers and fewer emails. Non-journalists also need to be more involved in the process next go-around.

“It needs to be framed from the beginning as a citizen’s right to access,” Richardson said. “Most of the heavy lifting was done by the press association.”

Pennsylvania was a different story. Reformers say one of the reasons the new law passed was that the old one was so bad.

The Keystone state will have a new open records law starting January 2009, replacing a 1957 law that had a very narrow definition of what counts as a public record. Now there is a presumption of access, and the new law shifts the burden onto government officials to prove why a requested record should be shielded from public scrutiny. Also, the new law calls for the formation of an Office of Open Records that has its own independent director and staff.

FOI advocates were aided by highly publicized scandals, with state officials spending outrageous amounts on fancy meals, cigars, cosmetics for public officials’ wives and even a $800,000 retreat – then refusing to hand over expense vouchers to reporters. This prompted litigation and public outcry.

Reporter Jan Murphy, capital bureau chief for The Patriot News in Harrisburg, also wrote about pay raises legislators gave themselves and other public officials in the wee hours of the morning before they left town on the last day of the 2005 session. Salaries were boosted from 16 to 54 percent depending on the office.

“We just kept writing story after story and citizens were outraged,” Murphy said.  “This was when the need for reform in Pennsylvania took root, and it has caused dramatic change.”

A blog sponsored by the Pennsylvania Newspaper Association, passopenrecords.org, helped bring people interested in the issue together.

“It opened up conversation in a way we hadn’t seen before,” said panelist Teri Henning, general counsel for the Pennsylvania Newspaper Association. “It helped get the word out.”

Henning said the PNA worked to bring together commercially based groups that had a vested interest to insure broad-based support for reform.

They knew that the issue of open records isn’t very sexy in and of itself to the average citizen. In launching the Brighter Pennsylvania initiative in 2006, organizers included a model law and an open government pledge, posting names of legislators who had signed on. But they also showed ordinary citizens why open government was important. Specific examples were included in a widely circulated glossy brochure. A woman had been attacked running along the river, but police did not release the report until they arrested someone.

“So people who were running along the river didn’t know about it,” said Henning, who oversees the PNA Legal Hotline, receiving more than 2,000 calls each year.

In another example, a bomb threat had been made to a local school and parents could not find out why their children were coming home from school.

“We get a ton of calls and have specific examples. It did hit some notes,” Henning said.

Another lawsuit got the public interested: the salary of Penn State head football coach Joe Paterno. The Pennsylvania Supreme Court ruled in 2007 that the state retirement system must disclose the salaries of the schools top administrators. The case arose out of a 2002 request by the Patriot News for Paterno’s salary, along with other Penn State officials from the State Employees’ Retirement System.

This case and other state Supreme Court FOI cases helped bring about the passage of the new law, said attorney Craig J. Staudenmaier, who routinely represents the media and other plaintiffs in public records and open meetings matters.

“It was the momentum put together by all of these efforts,” he said.

 

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