Stacked deck favors: Government secrecy

Investigative Reporters and Editors, Inc. The IRE Journal, Mar/Apr 2002 by Davis, Charles

FEATURES

Better Government Association study of state public records laws - and survey of IRE members shows citizens are at disadvantage.

The results are in, and they're not pretty.

A sweeping study of state FOI laws by the Better Government Association reveals that most are weak and easily undermined. The haphazard construction of state public records laws has resulted in an information gap that significantly affects the citizenry's ability to examine even the most fundamental actions of government, the study found.

BGA researchers studied all 50 state public records laws, and no state earned better than Nebraska's B-. Eleven states earned F ratings, with the rest scattered between C and D. The results are dismal, the details depressing even to hardened FOI observers who knew the national situation was grim.

The study was 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.

The BGA decided to find out where its home state of Illinois stood in relationship to other states. Could Illinois be an aberration in an otherwise sunshine-laden country? Well, no.

Working closely with IRE, the BGA surveyed 191 investigative journalists across the U.S. The investigators asked these IRE members to rank their satisfaction with the FOI laws in the state where they practice their craft. The findings were entirely consistent with the BGA's overall analysis of the laws. The BGA/IRE survey found that:

* Journalists across the country believe that open records are important to doing their job by a ratio of nearly 31:1.

* Journalists across the country believe that public officials abuse their discretion when responding to FOI requests by a ratio of 11: 1.

* Journalists across the country do not feel confident that legitimate FOI requests will be honored by a ratio of 11:1.

The survey also found journalists believe that the cost of litigation is a deterrent to fighting improper FOI refusals, that public officials would not be held accountable for violations, and that important information goes unpublished as a result of weak state FOI laws.

To study the relative strengths of the FOI laws, the BGA created a "gold standard" against which the laws of each state could be objectively and accurately measured. This gold standard was then developed into a simple, understandable report card, grading each state's performance on a four-point scale.

The study measured several criteria regarding access to information. The first three criteria that the BGA studied in assessing the strength of each state's open records act are procedural, involving the process the requesting party must undergo to gain access to public records. The BGA's concern with these procedural requirements is that a lengthy and burdensome process is likely to discourage citizens from making requests and seeking enforcement of the statute, which will result in less disclosure of public information. To assess the procedural obstacles facing FOI requesters, the BGA studied response time, the process of appealing FOI denials and expediency, or the means to give a case priority on a court's docket in front of other matters because of time concerns.

Although most states did well in this section of the survey, managing to respond within legal limits, rarer are any sort of detailed, effective appeals processes. Citizens often have their requests denied and the only way they can gain access to records is by appealing the agency's denial.

The appeals process

If citizens are able to appeal in a cost- and time-efficient manner, in the forum of their choice, citizens are more likely to challenge an agency's denial. The BGA's method of grading this criterion is based on three elements: choice, cost and time. A petitioner should be able to choose the body that hears the appeal. The appeals process also should provide for administrative remedies to control the costs and time of appealing.

States with statutes that do not provide for an appeals process do not receive any points. These states fail to inform citizens that the denial may be reviewed, and maybe reversed, by a higher authority. Allowing a petitioner to appeal a denial to court receives one point. Appealing directly to a court will assuredly be the most expensive and take the most time. Citizens are less likely to challenge a denial if an appeal means several years of litigation costing thousands of dollars.

Two points were awarded to states that require petitioners to first appeal to the director of the agency denying them access, then to an ombudsman and only then to court. By requiring a petitioner to exhaust both administrative remedies before allowing access to the court system, these states provide the petitioner no choice of forum. However, these states do provide for administrative remedies that may reduce the cost of the appeal if a favorable ruling can be achieved before going to court. By appealing first to the agency head and then to an ombudsman, there is at least a chance of getting a favorable decision in a cost- and timeefficient manner. The presence of a legislatively designated entity, either the head of the agency or an ombudsman, as an appellate avenue before resort to the courts earned states three points. States offering petitioners the choice of appealing to the head of an agency or an ombudsman, or going to court, received four points. Finally, states allowing citizens to pursue the channel of appeal of their choice received five points.