WHY FREEDOM OF INFORMATION?

Joel CampbellFreedom of Information CommitteeSociety of Professional JournalistsAssociate ProfessorDepartment of CommunicatonsBrigham Young University

JAMES MADISON

 A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives. 

IN THE WORDS OF PRESIDENTS

Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.

-- John Adams

Let the people know the facts, and the country will be safe.

-- Abraham Lincoln

We must never forget that the free flow of information is essential to a democratic society.

-- Bill Clinton

QUESTION: WHO SAID THIS?

“When information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and -- eventually -- incapable of determining their own destinies.”

a. Abraham Lincolnb. Bill Clintonc. Richard Nixond. John F. Kennedy

MOST SECRETIVE TIMES IN U.S. HISTORY? War of 1812 World War I World War II Civil War Post 9/11

A HUMAN RIGHT

Freedom of information is recognized in international law. Article 19 of both the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights provide that every person shall have the right to seek and impart information. An international court has recognized the right to seek information includes a right of freedom of information.

A U.S. RIGHT TO KNOW

“Democracy dies behind closed doors.”– Judge Damon Keith

Detroit Free Press v. Ashcroft, 303 F.3d 681 (August 26, 2002)

Successful challenge of closed court proceedings involving non-citizens following 9/11 terrorist attacks,

TWO RIGHTS IMPLIED

RIGHT TO KNOW RIGHT TO ASK

ProactiveThe positive obligation of public bodies to provide, to publish and to disseminate information about their main activities, budgets and policies so that the public can know what they are doing, can participate in public matters and can control how public authorities are behaving.

ReactiveThe right of all persons to ask public officials for information about what they are doing and any documents they hold and the right to receive an answer. The majority of information held by public bodies should be available, but there are some cases where the information is withheld in order to protect privacy, national security or commercial interests.

THE IMPACT OF FOI

Some 86 countries around the world now have some form of Freedom of Information (FOI) legislation with many more considering or developing it. This trend gained momentum during the 1990s across the world.

The UK implemented its 2000 FOIA in 2005. FOI legislation is pending in Brazil and

Philippines. Communist countries recognize basic

information access rights.

GENERAL GOALS OF FOI

1. Increase transparency and openness 2. Increase accountability and decrease

corruption 3. Improve the quality of government decision-

making 4. Improve public understanding of decision-

making 5. Increase public participation 6. Increase public trust 7. Increase security Source; Stated goals of the UK FOIA 2000, National Security Archive

FREEDOM OF INFORMATION – “SUNSHINE LAWS”

U.S. Constitution – First Amendment right to attendCourt hearings and implied record access

(Some First Amendment theorists have argued for that the First Amendment should extend to protect receiving and distributing information from government, but that has never been recognized by a U.S. Supreme Court majority)

U.S. Freedom of Information Act - FOIA (records) U.S. Government in the Sunshine Act (meetings) Utah Government Records Access and

Management Act - GRAMA Utah Open and Public Meetings Act

A BIT OF HISTORY

First records access law passed in Sweden (1766),

Anders Chydenius (1729-1803) (pronounced Anders KyDenies)

Sweden’s Principle of Public Access means that the general public are to be guaranteed an unimpeded view of activities pursued by the government and local authorities; all documents handled by the authorities are public unless legislation explicitly and specifically states otherwise

U.S. FOIA

The first modern legislation was the United States FOI Act of 1966.

Championed by Rep. John E. Moss, a Democratic congressman from California, is known as the legislative father of FOIA

It was updated in 1974, 1986, 1996, 2002.

FOIA was signed reluctantly by President Lyndon Johnson in 1966. As Johnson's White House press secretary said years later,

"LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House."

In fact, the bill was signed on July 4 without any signing ceremony.

UTAH’S GRAMA

Enacted in 1991 Legislative session Update nearly every session since. 2011 – HB477 Costs Privacy Technology Balancing test

STORIES USING FOI LAWS

Salaries of coaches and leading elected officials

Olympic bribery scandal investigation Campaign contributors to politicians Stories showing how soldiers were

sprayed with biological agents at Dugway Proving Ground

Effects on “downwinders” from above ground nuclear tests

STORIES USING FOIA

Radiation experimentation Increased health risks in work places Wasteful government spending Campaign finance Lobbyist expenditures Travel of members of Congress Homeland security expenditures Audits of military bases Biological and chemical exposures Safety in national parks 501 c 3s – IRS Form 990 – Guidestar.org

PUBLIC RECORDS FOR EVERY DAY

Police reports School teacher disciplinary records Voter registration records Professional licenses Audit reports Correspondence Incorporation records

THE BELL,CALIF. STORY

THE BELL, CALIF. STORY

FISHING EXPEDITION OR PUBLIC SERVICE?

SANDY SALARIES - 2008

"I'm sure the administrators are getting nearly all of the bonus money," wrote one employee. "I've heard rumors that the chief receives up to $10,000,” wrote an employee in an e-mail.

After a three-year legal battle, the Salt Lake Tribune gained access to information about an extensive bonus program at Sandy City. a bonus program that disproportionately rewards top administrators from all city departments -- and even provides Sandy Mayor Tom Dolan with a $1,000+ "thank you" bonus, each year.

Dolan's check pales in comparison to those received by city administrator Byron Jorgenson and 11 other city leaders who help administer the program, each of whom picks up the equivalent of about a month's salary in bonuses, year after year.

Meanwhile, most city employees who do get bonuses get the equivalent of a few day's pay. And hundreds get nothing at all.

HERRIMAN NEPOTISM

CITIZEN ACTIVISM

FOI/GRAMA CHALLENGES TODAY

Technology…. Cloud computing, Facebook, social media, text message

Lack of planning at front end of records storage development

Lack of data to formulate policy Privacy Abuse of records – political participation Misunderstanding, Ignorance Culture of secrecy Over charging Over classification Wikileaks syndrome

THE POWER OF ACCESS

At least a third of news stories are based in part on open records, meetings or court proceedings (SPJ 2001 study of 3,192 stories)

Journalists increasingly having to fight for records to circumvent growing walls of secrecy and spin (despite what Nixon or other officials would say)

Documents help win Pulitzers Documents help change the world

UTAH GOVERNMENT RECORDS ACCESS AND MANAGEMENT ACT (GRAMA)

All records are considered public unless otherwise specified

If public interest outweighs private interest the record may be disclosed

Right to inspect records free of charge Government cannot use form of record to

restrict access. No use test No expertise test

GRAMA REQUEST PROCESS

Find the record keeper Finesse a request Make a written request Wait for a response Appeal to the head of an agency State records committee or court Court

GRAMA REQUEST CONCEPTS

Not held by state, check local ordinances

10 days for normal response 5 days for expedited response involving

“public interest” Request for fee waiver for “public

interest” Journalists preparing a story for air or

publication considered acting in “public interest”

FIVE CATEGORIES OF RECORDS

Public – Salaries of public officials-Public Tier II – police records

Private – Medical and welfare records Controlled – Adoption records Protected – Trade secrets Limited – Catch-all exemption

ACCESS STRATEGY: HANDLING DENIALS

If they say…

“Your description is inadequate.” “The requested material does not exist.” “We don’t trust how you might use the

information.” “We don’t have time or resources to handle your

request.” “Parts of the records are exempt, so you can’t

have anything.” “We don’t have to give you nothin’!” (actual

quote from a sheriff) “OK. That will be $450,000, please.” “Just sign here on this contract line.”

GRAMA

All records are considered public unless otherwise specified

If public interest outweighs private interest the record may be disclosed

Right to inspect records free of charge Government cannot use form of record to

restrict access. No use test No expertise test

FOIA

Who is covered? Executive Branch departments, agencies,

and offices; federal regulatory agencies; and federal corporations.

Who is not covered? Congress, the federal courts, and parts of

the Executive Office of the President that function solely to advise and assist the President, are not subject to the FOIA

Source: National Security Archive

U.S. FREEDOM OF INFORMATION ACT (FOIA) EXEMPTIONS

1. National security2. Internal agency personnel rules3. Information exempted by dozens of federal laws

already on the books – “Catch-all exemption”4. Trade secrets and confidential commercial

information5. Internal agency memoranda and policy

decisions6. Personal privacy – The Privacy Act7. Law enforcement investigations8. Federally regulated banks9. Oil and gas wells

FEE WAIVERS

For all non-commercial requesters the first two hours of search time and 100 pages of copying free of charge.

If you are a representative of the news media, you are entitled to waiver of all search and review fees.

In addition, all fees, including copying, must be waived by the agency if the material requested "is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester."

FOR MORE INFORMATION

Reporters Committee for Freedom of the Press. Online manual.

http://www.rcfp.org/foiact/index.html

UTAH OPEN MEETINGS ACT KEYS

A quorum must be present Notice must be made 24 hours in

advance Meetings must be closed by 2/3 vote Agenda must be posted or mailed Minutes must be taken and are public

documents

OPEN MEETINGS ACT KEYS

Recordings of open sessions Detailed written minutes and

recordings must be kept of closed sessions except discussions of character and security

Sworn statement needed after character and security discussions

Misdemeanor penalty

EIGHT REASONS TO CLOSE A MEETING Discussion of character, professional

competence or physical or mental health of an individual

Strategy sessions for collective bargaining Strategy sessions for “imminent” litigation Strategy sessions to discuss the purchase,

exchange, or lease of real property when public discussion of the transaction would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on the best possible terms.

EIGHT REASONS TO CLOSE A MEETING Strategy sessions to discuss the sale of

real property when: value would be disclosed, notice of sale had been given, terms of sale are disclosed

Security discussions Investigations of criminal misconduct Discussion of “commercial information”

for property tax appeals

TOP 10 MEETINGS TIPS

Diffuse the open meetings bomb. “Retreats” should raise a red flag. Be careful of attorney-client privilege. Challenge “stealth agendas Question boilerplate closures. Beware or “electronic meetings” No votes for “executive sessions” Beware of “work meetings” or “committee of the

whole” meetings Get the meeting documents Beware of executive sessions for non-specific times

and locations