Freedom of Information in the USA: Part 1

Overview

There are probably no more important reforms to government than the ones that came with the passing of the Federal Freedom of Information ("FOI") Act. The law recognized in no uncertain terms that if government is to be of the people, by the people and for the people, the decisions and actions of the government must be open for review by the people.

The states, for the most part, followed the federal government in adopting open records laws.

Unfortunately, state FOI laws have proven to be almost uniformly weak and easy to undermine. The weakness and haphazard construction of the state laws has resulted in an information gap that significantly effects the citizenry's ability to examine even the most fundamental actions of government.

In the course of numerous investigations, Better Government Association investigators have been refused in our requests to review 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. Our experience told us that the FOI laws simply do not work very well in Illinois.

As a result of our hands-on experience with Illinois' lack of responsiveness, the BGA decided to find out where we stood in relationship to other states. We found that no one had completed any sort of national analysis of FOI laws, and that Illinois' relative strengths and weaknesses could not be measured without creating a new instrument to study the problem and without an analysis of each state's statutory provisions for FOI.

In addition to a thorough analysis of the laws, we worked with Investigative Reporters and Reporters, Inc. (IRE) to survey 191 investigative journalists across the US. We asked these journalists to rank their satisfaction with the state FOI laws in the state in which they practice their craft. Our findings were entirely consistent with our analysis of the laws. The BGA/IRE survey found that:
·         Journalists across the country believe that open records is 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 ratio of 11:1.
·         Journalists across the country do not feel confident that legitimate FOI requests will be honored by ratio of 11:1.

Our survey also found that journalists believe that the cost of litigation is a deterrent to fighting improper FOI refusals (8:1), that public officials would not be held accountable for violations (6:1), and that important information goes unpublished as a result of weak state level FOI laws (2:1).

It is time to reform Freedom of Information Laws in the US.

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 the each state's performance on a four-point (4.0) scale.

The criteria that the BGA uses are based on the existing "best practices" in states across the country. In other words, we know that each criterion is obtainable because it is already law in at least one state. The criteria are derived from state statutes or the law as it is written, because it was too burdensome to measure how the law is actually implemented in each state or how state courts have reshaped the FOI laws in each state.

The FOI Report Card measures the five criteria on a scale from zero to five, with zero being the lowest and five being the highest possible scores. The criteria were broken into two categories - three procedural criteria and two penalty criteria.

The procedural criteria measure (1) the amount of time a public agency or department has to respond to a citizen's request for a public document; (2) the process a citizen must go through to appeal the decision of an agency to deny the request for the public record; and (3) whether an appeal is expedited when it reaches the court system.

The penalty criteria weigh (1) whether the complaining party, upon receiving a favorable judgment in court, is awarded attorney fees and costs; and (2) whether the agency that has wrongfully withheld a record is subject to any civil or criminal punishment.

The grading scale the BGA chose to use is based on the standard "four-point" university grading scale. Grades are awarded based on the number of points that a state earns in any given category. Those points are multiplied by .08 to put them on a four point scale. The final "GPA" is derived by adding the weighted average grades and dividing by the total possible credits (16).

The BGA believes that this analysis will best serve the public and the media as a starting point rather than an end. It shows much of the depth and breadth of the problem and where the laws are weakest. We even propose a "gold standard" by which we every state can improve the strength of their FOI laws.

The scores and the data themselves are most useful in assessing the relative performance each state, breaking them into rough quintiles rather than focusing on the specific scores.

This analysis does not measure culture, enforcement or the various myriad exceptions in each state. Each of these factors can have an enormous impact on the actual practice of the laws but is unmeasurable without a much larger, prohibitively expensive study.