Opening up state government one coalition at a time

Groups gather strength around the country, but take differing approaches in pursuit of sunshine
Feature
Page Number: 
16

From the Summer 2009 issue of The News Media & The Law, page 16.

Melissa Davenport is finding plenty of people who want to open up the Washington, D.C., local government. The challenge for the executive director of the fledgling D.C. Open Government Coalition is getting those people organized and focused.

“We do have a really large contingent of people who are very strongly interested in this topic,” Davenport said. “We’ve got the network.”

The coalition has drawn interest from journalists, law firms, librarians, legal services providers and citizen groups. The first order of business has been identifying common goals among the diverse crowd.

An organizing meeting in June felt something like a merry-go-round ride for Davenport, with a few ideas spinning around the room, but no consensus on what the coalition should be trying to do. Should it press agencies to make available information such as employee salaries and staff manuals, as required by the D.C. Freedom of Information Act? Or should it pursue better compliance with FOIA requests? What about open meetings? Why not just try to overhaul the District’s open government laws?

Considering these questions is part of “figuring out who we’re going to be,” Davenport said.

As the D.C. coalition works that out, it might note two lessons that coalitions around the country have learned.

First, there is no uniform set of priorities that works for every coalition. Some have thrived while staying focused on educating the public and government officials, while others have fought and won battles to get laws changed.

Second, coalitions generally say they have room for a variety of viewpoints, from journalists to citizen watchdogs, as long as the focus stays on the open-government mission.

Common ground

Open government coalitions are popping up with regularity these days around the country. Over the past five years, the number of states with a coalition has grown from around 30 to 49, according to Charles Davis, executive director of the National Freedom of Information Coalition (NFOIC). North Dakota is the holdout.

The general idea is to bring together a variety of people and organizations to get citizens involved in an issue that Davis said has been “unfairly categorized as a special interest of the press.”

The NFOIC, which traces its origins to a 1989 meeting in Dallas, has driven the growth of coalitions. Now based at the University of Missouri’s Donald W. Reynolds Journalism Institute and funded by a grant from the John S. and James L. Knight Foundation, the national coalition passes more than $200,000 per year in grants to the individual coalitions.

Davis stressed the importance of including non-media members in coalitions.

“We’ve got a big tent, a bipartisan tent,” he said. “It broadens the conversation beyond merely the interests of the news media.”

A primary focus of the coalitions, Davis said, is “to change the conversation about access in the state.”

While some coalitions try to lobby for policy reform, many specialize in boosting knowledge and enforcement of existing laws by publishing freedom of information guides, offering training for government officials and answering questions from citizens.

“You can have the best law in the world, but there’s a big gap between law and practice,” he said.

The Pennsylvania Freedom of Information Coalition — formed relatively recently, in 2006 — is an example of a group that has focused its efforts on education. That role is especially important because Pennsylvania overhauled its open records law in 2008, bringing a presumption of openness to government records and creating the Office of Open Records to enforce the new law.

“A lot of this stuff, everybody is just figuring out,” coalition executive director Kim de Bourbon said.

While media lawyers and news organizations were the driving force in forming the coalition, de Bourbon said at least 80 percent of the current membership is made up of people not involved in journalism. That is a sign of the success the group has had in reaching out to the public.

“It’s one of those things that unless you need it, you don’t know it’s there,” de Bourbon said. “ ‘Open records? What’s that?’ ”

The coalition is answering questions on an Internet forum and keeping an eye on developments under the new law. For example, some state agencies have ignored rulings from the Office of Open Records, leaving citizens who thought they had won an appeal instead wondering what to do next. One thing the coalition would like to do next, de Bourbon said, is create a guide for citizens to pursue their options in court without having to hire lawyers.

 

Deciding to litigate

So far, the Pennsylvania coalition has not taken cases to court, but that might change if the right case comes up. For now, it is referring citizens to attorneys, some of whom have worked on a pro bono basis.

Some coalitions expressed interest in litigating freedom of information cases, but the money is often missing.

“We generally don’t get involved in litigation because of limited resources and time,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.

Sometimes, though, a coalition can feel compelled to get involved in a case even when it’s not immediately clear how to pay for it.

“We’re already involved in sort of a legal battle, even though we have no legal funds,” said Jim Angell, vice president of the Wyoming Coalition for Open Government.

The group has sought access to autopsy reports for three teenage girls. The issue is complicated by the facts that the deaths occurred on the Wind River Indian Reservation and were investigated by the FBI. Angell insists the reports are open under state law and said the open government coalition, along with the Wyoming Press Association, was considering a legal challenge.

Given the costs of going to court, Angell said the coalition prefers to settle disputes through education. Generally, coalitions do not appear poised to replace news organizations in taking open government disputes to court.

“I still worry about the fact that there are just fewer eyes on the ground, fewer people paying attention, fewer people litigating,” Davis of the NFOIC said.

 

Into the fray

In keeping its focus on helping people use the existing law, the Pennsylvania coalition has taken a hands-off approach to actual lawmaking.

That was true even when the state’s General Assembly was considering whether to overhaul its old open records laws, which were considered among the weakest in the country. While the Pennsylvania Newspaper Association took the lead in pushing for the new law, the Pennsylvania FOIC remained in a supporting role.

“The very fact of our existence helped convince legislators this was not a media issue,” de Bourbon said. “It was a citizens issue.”

The Virginia coalition, established in 1996, is also heavily involved in educating the public, with a pocket-size guide to Virginia’s Freedom of Information Act, an online archive of legal opinions, newsletters and even a YouTube video explaining Virginia’s FOIA.

But unlike in Pennsylvania, the Virginia group goes beyond education by taking an active role in influencing laws.

“We always felt the best thing to do was get involved in the legislative process from the get-go,” Rhyne said. “That has given us an opportunity to improve FOIA.”

Even at a time when there are no major freedom of information battles in the Virginia General Assembly, Rhyne said she was tracking about 75 bills. Having influence in the creation of legislation seems important to the group, she said, because theirs is the only organization in the state that focuses on access for all citizens.

Leaders in other state coalitions also said their organizations had a unique perspective to offer lawmakers — and one that might seem more palatable to officials who are wary of the press.

“Some members of the Legislature, just like some members of the public, have varying viewpoints about members of the media,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. “If those are negative, they can automatically start tuning you out. . . If you represent people, it is incumbent on them to listen.”

The public perspective effectively complemented journalists’ interests when the Texas Legislature was considering and ultimately passed the Texas Free Flow of Information Act in May, creating a shield law allowing journalists to protect confidential sources. Elkins said lawmakers responded when his foundation played up the angle that the law would protect not only reporters, but also whistleblowers — often regular people who can now be more confident that they can speak out without reprisal.

“By providing a limited protection to a journalist, we believe that it better serves all citizens,” Elkins said.

The Utah Foundation for Open Government jumped into a legislative fight this year when House Bill 122 threatened to eliminate from the state’s Government Records and Management Act a balancing test that factors the public interest in disclosure into determining whether a record should be released.

Utah coalition president Linda Peterson and board member Joel Campbell met with state Attorney General Mark Shurtleff, who was supporting the measure, and convinced him the bill went too far, Campbell said. Shurtleff agreed to work on a compromise, and the legislation ultimately died.

Gaining “a little more punch in the Legislature” was a motivation for the formation of a coalition in Wyoming, said Angell, who is the executive director of the Wyoming Press Association in addition to his duties with the Wyoming Coalition for Open Government.

When the Wyoming Press Association went to the state Legislature in the past, Angell said, it found friends on freedom of information issues including the ACLU and the League of Women Voters. It seemed natural to the association to reach out to like-minded organizations when forming a coalition with which some legislators would be more willing to engage than if it were a pure media group.

“When somebody from the media goes to the Legislature, we are not welcomed with open arms a lot of the times,” Angell said.

So far, the Wyoming group has been “playing defense,” Angell said, trying to keep new exemptions from being inserted into the state’s sunshine law.

 

Limited infighting

Many coalition leaders who praise the diversity of their groups acknowledged that media and non-media members — including genealogists, librarians, professors, bloggers and political activists — have differing viewpoints. Reporters tend to push for as much disclosure as possible, while some other citizens might be more willing to accept limitations based on privacy, for example.

“There is the problem of sometimes citizens don’t always understand the need to have complete access or as much access as the media does,” said Katherine Garner, who held positions including executive director in the Freedom of Information Foundation of Texas for 15 years. “Therefore, they might be a little more willing to give up on some issues when the media wants to fight.”

Despite those different perspectives, Garner said, the Texas coalition has not seen a rift between journalists and non-journalists. The regular citizens who take the initiative to join a coalition usually feel strongly about freedom of information and are willing to fight for open government broadly, she said.

Rhyne, with the Virginia coalition, said journalists enjoy some advantages that regular citizens don’t have. By working a beat, she said, reporters get to know people in government offices who might be more willing to provide them with information and waive fees. She said that the coalition has to work to help all citizens benefit from open government laws.

She also said individual citizens tend to have a narrower view of open government than journalists.

“The things that they are interested in are usually smaller and less big-picture than what the media’s working on,” Rhyne said. “They’re much more interested in the things that directly affect them, whether that’s a firing range that’s getting built down the street from them or finding out things about the nursing home where they’re going to put their mother.”

As she considers when the organization should take a position on proposed legislation, she said she has avoided controversy within the coalition by sticking to the 10 “guiding principles” the group has established, such as that access to information should be restricted “only within narrow and carefully defined exceptions.”

Chuck Baldwin, executive director of South Dakotans for Open Government, said conflicts between his group’s journalists and non-journalists — which include state Attorney General Larry Long — have not been a particular problem. He pointed out that even among newspapers in his state there is no consensus on open government issues.

“We do not have every paper in the state participating, not even close to it,” Baldwin said.

 

Moving forward

The D.C. Coalition, like many of those formed before it, will have to work on the big questions — like deciding whether to try to work for changes in the law and finding its voice in the midst of a variety of stakeholders — on the fly, as it deals with practical concerns like securing funding and expanding its board of directors, which started with three members. How the coalition resolves those immediate concerns is likely to affect the coalition’s long-term approach.

Precisely who ends up sitting on the board of directors will also heavily determine the group’s identity. Davenport said a difficult balance needs to be struck to include a wide range of interested parties while keeping the decision-making team small and effective.

A local law firm, Ropes & Gray, is funding Davenport’s job for one year, after which she’ll leave the coalition to work at the firm. The D.C. Coalition is also receiving $10,000 for its launch from the NFOIC.

“That puts us in a good position,” Davenport said.

The decision on a first big project is likely to depend on what kind of further funding the coalition can come up with, Davenport said. If the group receives a grant earmarked for a particular use, that’s likely the direction the coalition will take.

The struggles of the news media industry are not making it any easier for coalitions to come up with money.

“Asking for money is not going over really well right now,” de Bourbon said.

That might be all the more reason to reach out beyond coalitions’ traditional media boosters.

“The good news is that as these groups mature, they get a base that’s broad enough to encompass more than just news media membership,” Davis said.