My State is Worse than Your State

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by Aimee Edmondson, NFOIC contributing writer

Here’s one great way to find out how your state access laws stack up with others on key issues – go to citizenaccess.org. You can examine state FOI laws in a multitude of ways. You can look at one issue across 50 states for comparison purposes, or look at state law summaries and even get advice about specific access issues from a “Rapid Response Team.”

Bill Chamberlin, director of the Marion Brechner Citizen Access Project, showed features of the website during the National Freedom of Information Coalition’s 2008 FOI Summit in Philadelphia on May 9-10.

“This is an ongoing project,” said Chamberlin, who has been the Joseph L. Brechner Eminent Scholar for Freedom of Information at the College of Journalism and Communications at the University of Florida since 1987. “This project started with the question, who has the best state law?”

But he points out that it’s not that simple. Consider autopsy records after the Dale Earnhardt controversy, for example; that became a hot issue beyond Florida. Reporters and advocates of open government began asking the question in their own states: Are autopsy records open to the public?

“It depends,” said Courtney Barclay, a Florida doctoral student who works with Chamberlin.

CAP breaks down the major factors involved: the medium of the record, the type of information involved, the circumstances of the investigation, whether photos are included.

Autopsy records in 26 states are presumptively open, and 22 are presumed closed.

“Thirty five of the states do have at least one or more exemptions that can change the presumptive ruling,” Barclay said.

It may sound confusing, but CAP breaks the statutes down so reporters and others interested in access can get the information they need.

There also is an FOI Rapid Response Team that can deal with immediate requests from journalists, attorneys, legislators and activists who need quick information on state access laws. Graduate students field these calls.

“Let us know what you are worried about, and we’ll do our very best to get the information to you,” Chamberlin said.

Tim Potts also sat on this panel comparing state FOI laws, and he is convinced his state, Pennsylvania, remains in the basement.

“My state is worst than your state,” said Potts, co-founder of Democracy Rising Pennsylvania, a government reform group founded in 2004, the year the state legislature prompted public outcry after voting itself a pay raise in the middle of the night. The group helped get the pay raise repealed and continues to fight for citizen action for transparency in state government.

Though Pennsylvania passed sweeping FOI legislation that will take effect in January 2009, Potts wishes the new law was better.

The new statute replaces a 1957 law that had a very narrow definition of what counts as a public record. Now there is a presumption of access. Before, records were presumed closed. The new law also 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.

One problem area, Potts said, is finding out how state lawmakers handle their expense accounts. You can’t just ask for expense reports. You have to know what accounts exist.

“There are dozens of leadership accounts. We don’t know how many, and we aren’t allowed to know,” Potts said.

He hates that the penalty for noncompliance is only $1,500. That’s not enough, he is sure. He also hates the appeals process.

“Appeals don’t have any teeth. It goes back to the legislature,” Potts said.

Though the FOI reforms in Pennsylvania have been substantial, Potts said he’ll keep pushing to make them better. He is also quick to point out that the state has a long history of secrecy and corruption. This is, after all, the home of Standard Oil. In her investigation of this powerhouse corporate entity, journalist Ida Tarbell tackled corruption head on as one of the best known muckrakers in American journalism.

“We’ve got a lot of history to overcome, but that doesn’t mean we can’t do it,” said Potts. “We refuse to compromise.”

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