Access To Public Records Mandatory, Not Discretionary
Sunshine Week (March 11-17) is the news media's industrywide effort to alert the public to the importance of open government and the right of access to public information and public meetings.
Through news coverage, editorials and other offerings, newspapers and broadcasters are shining the light on the public's right to gain access to government information. The week draws attention to the Freedom of Information Act and to the dangers of official secrecy.
The week also includes National FOI Day, March 16, marked each year by the First Amendment Center with a major conference on access issues.
Governmental agencies seems to abhor open government laws and in some circles, spend more time trying to thwart public access to records than they do to letting the sun shine in.
The Reporters Committee For Freedom of the Press has published Open Government Guides for each state and they contain a wealth of information. http://www.rcfp.org/ogg/
"Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately." Judge Damon Keith, U.S. Sixth Circuit Court of Appeals has written.
The were two significant amendments to New York's Freedom of Information Law last year, a major step forward in making government more accountable to the people.
New Yorkers are now allowed to use e-mail to submit requests under FOIL for most government records. Enabling the public to request records by means of e-mail and to require the government to respond by e-mail when they have the ability to do so simply makes the Freedom of Information Law must more usable to so many people", said Robert Freeman, executive director of the state Committee on Open Government.
By using e-mail, the cost of copying is eliminated and public agencies can't manipulate the law to make obtaining public information cost prohibitive and accessible only to those who could afford to pay the exorbitant costs imposed by officials. The new law is also designed to expedite the release of public information. No longer do government employees have to stand at the photocopy machine; rather, they will simply hit the send key on their keyboards.
The only instance in FOIL that authorizes agencies to charge fees involves the reproduction of records. The law states that agencies generally may charge up to twenty-five cents per photocopy, or the actual cost of reproducing other records, those that cannot be photocopied. When records are made available through email, no copies are made, and no fee can be charged. Thousands of citizens will be able to acquire information they need to improve their lives or to affect the activities of their government for free. We believe that to be nothing short of revolutionary.
In August, an amendment was passed broadening courts' authority to award attorney's fees when agencies engage in stonewalling or foot dragging. A court now may award attorney's fees when an applicant substantially prevails and the agency had no reasonable basis for denying access or when the agency failed to comply with the new provisions requiring timely responses to requests. The law also allows a court to force governmental and school districts to pay court costs if officials had "no reasonable basis for denying access" in addition to failing to respond to a request within the time required by law.
Although governmental participation is a crucial component of our democratic heritage, it is also a fragile one. For every citizen seeking to discover what's going on behind the closed doors of government offices, there's often at least one bureaucrat coming up with reasons to keep things secret.
Secret government is dangerous. Public trust is the nucleus of our democracy and open government keeps public officials accountable and presumably honest. The more government hides, the more distrust there is in government.
In association with Sunshine Week, the Associated Press conducted a nationwide survey about record-keeping in government. Unfortunately in all too many cases not only does government fail to comply with open government laws, but there are few penalties and in most cases, if legal challenges are raised to government's denial of information, attorney general's offices and other agencies generally side with the government or issue a mild rebuke, a slap on the wrist.
According to the AP survey, while nearly all state have penalties in place for those who violate the "sunshine" law most don't keep records of who breaks the law and what penalties, if any, were assessed.
Even New York State, considered a leader in open law government laws, has no penalties in place for those who violate it although with amendments last year, it is now easier to recover fees expended in order to try to force governmental compliance.
Freeman says that the "court of public opinion is much more powerful than the judicial court".
Perhaps if New York began to criminalize the denial of access to public records, the prosecution of a public official here and there would be a grim reminder to others that giving access is public information isn't discretionary, its mandatory.
It's Sunshine Week. Let the sun shine in on open government. 3-12-07