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Policing compliance

Public records ombudsmen mediate disputes between government officials, public From the Spring 2005 issue of The News Media & The…

Public records ombudsmen mediate disputes between government officials, public

From the Spring 2005 issue of The News Media & The Law, page 12.

By Ryan Lozar

By the time callers reach Patricia Gleason’s office, they are often at wit’s end after being forwarded from bureaucrat to bureaucrat trying to get what the law says they are entitled to: government records.

In the world of open government disputes between Florida bureaucrats and citizens, Gleason is the chief mediator, helping about 120 Floridians a year challenge alleged illegal closures of government records or meetings.

Providing an alternative to litigation is important because for many citizens, filing and fighting lawsuits is too costly and time-consuming, said Gleason, general counsel for Florida Attorney General Charlie Crist. A scarcity of lawyers specializing in public records law also complicates citizens’ ability to resort to courts to solve access battles, she said.

Florida is one of about 15 states that have some form of public-access ombudsman working out of the state attorney general’s office or a state-organized freedom of information council or commission. Some ombudsman offices write legal opinions responding to public questions, while others &#151 like Florida’s &#151 offer mediation. Some do both.

The idea is spreading. Arizona and Maine, for instance, have bills pending that would create public access ombudsmen in those states. A federal ombudsman’s office tackling federal Freedom of Information Act issues is called for in a FOI Act reform bill introduced by Sen. John Cornyn (R-Texas). Cornyn envisions that the office would take questions from the public as well as government officials, said his spokesman Don Stewart. (See related story, page 7)

Conflict of interest

Historically, many state attorneys general, as the lawyers for their states, have counseled government officials on access disputes but not the public. Asking the attorney general if a government body is wrong to close a meeting or record, is like asking a “lawyer to tell you that his client violated the law,” said Bob Cooper, spokesman for Idaho Attorney General Lawrence Wasden.

In states like Maine where there is no ombudsman and the attorney general does not answer the public’s questions directly, citizens can go to a government official and say, “‘This is the issue, can you send a letter to the attorney general requesting an opinion?’ and 99 times out of 100 they will do it, ” said MalLeary, a print and broadcast journalist with Capital News Service in Augusta.

In Kentucky, citizens do not have to find a third party to ask questions on their behalf because Attorney General Greg Stumbo is legally obligated to answer open government questions from the public. Stumbo avoids potential conflicts of interest by keeping lawyers working on open government issues autonomous, separated from government lawyers in other divisions who may have to defend a government entity’s decision to close records or meetings, said Jon Fleischaker, general counsel for the Kentucky Press Association.

Florida’s Gleason complimented Kentucky’s system for defusing the conflict of interest that other states use as an excuse for not offering similar programs. “Kentucky’s system just shows that there’s a commitment there to providing this kind of service,” she said. “If there’s a will, there’s a way.”

Florida’s attorney general’s office avoids potential conflicts of interest by not representing state agencies in public access disputes, leaving the task instead to agency attorneys.

But some state attorneys general are not able to use Florida’s method because they are constitutionally or statutorily obligated to offer legal representation to state agencies in all circumstances, Cooper said.

An audit indicating poor government compliance with access laws motivated the Virginia General Assembly in 2000 to create the Virginia Freedom of Information Advisory Council to answer citizens’ questions about access disputes. It is patterned after one of the first such offices in the country, New York’s Committee on Open Government.

Forrest “Frosty” Landon, director of the Virginia Coalition for Open Government, said that early on, Virginia struggled with conflict-of-interest concerns. A previous proposal to place the ombudsman office within Virginia’s attorney general’s office “never came out of committee” in the General Assembly, he said. “In fact, I’m not even sure it got a hearing.” The problem was eventually solved by creating the council as a legislative advisory board.

Attorney General’s Office, Council, or Commission?

Fleischaker prefers Kentucky’s system over a council or commission because having an elected official like Stumbo as ombudsman forces political accountability that ensures that open government laws will be interpreted in the public’s best interest, he said. Stumbo’s predecessors began mediating open records disputes in 1975 and open meetings skirmishes in 1992.

Clifton Leonhardt, director of litigation for the Connecticut Freedom of Information Commission, however, disagrees that Election Day pressure is the only way to ensure ombudsmen work in the public’s favor, noting that Connecticut governors from all parties tend to appoint journalists and other open government advocates as commissioners. As a result, the commission, created in 1975 by the Connecticut General Assembly as an independent state agency, is “a force, financed by the state, that continually tries to keep the rest of the state more on the open side,” he said.

And Landon pointed out that even though Virginia has a council, the state attorney general &#151 who is elected &#151 still has a hand in its work as one of its 12 members. The librarian of Virginia, journalists, citizens and state agency representatives round out the membership, overseeing the work of full-time attorneys but not collaborating on individual written opinions.

Quick and easy, but is it effective?

Creating a division of the attorney general’s office to answer the public’s questions in Kentucky has made fighting for access rights incredibly easy and fast, Fleischaker said. He has heard of citizens making such simple complaints as putting their written request for a government record in an envelope with the government agency’s written rejection, and mailing it to Stumbo with a note saying, “I think it’s wrong. Please take a look.” Fleischaker, however, advocates writing a more substantial complaint.

The opinions issued by the Virginia Freedom of Information Council, done quickly and at zero cost to the complainant, don’t have the force of law, but are “generally respected by all parties as being impartial and authoritative, ” Landon said. The state attorney general has told the government that the council’s opinions should be presumed to be correct unless there’s clear evidence that the council absolutely got it wrong, Landon said. “We hope that eventually, courts will also defer to the findings of this council.”

Courts already defer to Stumbo’s rulings in Kentucky, where state law says that if the government doesn’t comply with &#151 or appeal &#151 an attorney general’s ruling within 30 days, it waives its right to challenge it. On the 31st day after issuance, a requester can simply ask a court to execute the order.

Legal enforcement power is critical, Leonhardt said. In Connecticut, staff attorneys first try to help the parties settle their disputes before a full commission hearing complete with briefs and witnesses is held. “The ombudsing, in my opinion, is worthless unless it’s backed up by some compulsion,” he said. “As an ombudsman, a lot of times I can’t get the parties to talk to me very seriously until they know there’s going to be a hearing before the commission.”

Indiana’s Public Access Counselor Karen Davis, on the other hand, said even ombudsmen without enforcement power, such as herself, are effective. Davis is a four-year gubernatorial appointee working in an independent two-person office first created by then-Gov. Frank O’Bannon with an executive order in 1998. She issues advisory legal opinions and tries to spark settlement between parties in access disputes.

State and local governmental bodies are amenable to negotiations even without legal compulsion, she said, explaining that “frequently a dispute is just a misapprehension of the law, and generally the government does try to comply.” If the government body has legal counsel, she said, “I’m almost always going to want to talk to them, so it’s lawyer to lawyer.”

Voluntary mediation works in Florida, too, Gleason said, also stressing her preference to speak to agency lawyers. Lawyers understand that their client “government agencies don’t want to risk litigation,” she said, and so by going to them she can “perhaps bypass bureaucrats who may be involved in some personality dispute with a citizen” more than anything else.

There are times that Davis wishes she had enforcement powers, but only occasionally when she squares off with a government official who doesn’t understand that “it’s the legislature that sets the policy of the state” and not an individual recordkeeper, she said. “But by and large, government bodies really do respond to your pointing out what the law requires for them.”

Lobbying and Education

In addition to resolving access disputes, some state ombudsman offices, like the Virginia Freedom of Information Advisory Council, are legally required to report regularly to the state legislature. This can be a boon to the state’s access laws, said Landon, who noted that the council’s regular dialogue with open government stakeholders makes it well equipped to advise the Virginia General Assembly on access law issues. Legislators will send bills to the council for study and comment, and legislation is also suggested by the council when government agencies bring it ideas.

Ombudsman’s offices also frequently offer educational programming on access laws for public bodies, the media and the general public This is a particularly important service for government bodies where “people are frequently cycling on and off,” said Sam Thompson, spokesman for New Mexico Attorney General Patricia Madrid. The public body “doesn’t always have the institutional memory” needed to maximize compliance with open records law, Thompson noted. Madrid’s office, which only answers access questions from elected officials, has attorneys who give seminars throughout the state.

Considering the variety of forms, locations, powers, and functions that define ombudsman programs, “no two of these offices are exactly alike,” Landon said. Although these offices can be as diverse as the jurisdictions that they serve, there is one important commonality, Davis said: “the tremendous amount of good they do for a state,” whether by facilitating the public’s defense of their access rights, or by improving a state’s openness culture through education and lobbying.

“A big part of this,” agreed Maine’s Leary, “is just giving people one place to go that’s clear,” however a state chooses to conduct the program. “You got a question? This is the office. Call them.”