Questioning Compliance

Freedom of information audits are helping states and counties across the nation highlight the challenges in accessing public records

From the Winter 2004 issue of The News Media & The Law, page 34.

By Andrew Serros

Is requesting public records a crime? It may sometimes seem that way, especially to California resident Barry Duncan.

In 1997, a superintendent of schools in Willows, Calif., refused to allow Duncan to listen to an audio recording of the school board’s latest meeting. Duncan explained that he had a legal right of access to the tape under the California Public Records Act. In response, the superintendent called the police, placed Duncan under citizen’s arrest, and had him taken to jail.

“They had a tendency to have tapes disappear or have blank spaces, inexplicably,” Duncan said. “It was important for me to get the tape as soon as I could, and that it be the official transcript.”

While the superinten-dent’s response to the public information request was extreme, many state officials do not know or respect the laws that govern open records. For years, groups such as The Associated Press, state press associations and open government advocates have been bringing that problem to light.

Conducting audits to test local compliance with FOI laws, these organizations, among others, regularly send out reporters and local residents in search of public records. Police incident reports, teacher salaries, minutes from a city council meeting . . . information that, by law, is to be made available to any resident, without question, upon request.

The results have been eye-opening.

“They’ve created a lot of conversation. In some states, real change,” said Charles N. Davis, executive director of the Freedom of Information Center at the University of Missouri. “Before [these audits], in a lot of states we really couldn’t get anyone to believe that there was a problem with access.”

Exemptions within FOI Act laws differ from state to state. Some common exemptions include personnel records, medical reports and police documents pertaining to ongoing investigations. But many public employees withhold nonexempt records as well, saying they would rather err on the side of noncompliance than accidentally release a document they shouldn’t have.

Thanks to county and state FOI audits from Maine to Montana, advocates of open government are helping to erase the misconception that the public should be content with what it gets, instead of what the law guarantees.

At worst, FOI audits have revealed little change in state agencies’ poor compliance rates from audits of years past. At best, these audits have resulted in new legislation and additional training of public employees about their state’s open record laws.

In an audit of state agencies conducted by the Maryland-Delaware-DC Press Association and published in August 2000, results revealed that the Maryland Motor Vehicle Association denied eight of 17 public record requests. A spokesmen for the agency later told the (Westminster) Carroll County Times that the MVA would take steps to improve that compliance rate.

But the MVA fared no better in the press association’s most recent audit, published last summer. Three reporters each sought access to three individuals’ driving records over the last three years, information that is public in Maryland. Only one request was granted.

As a result, Maryland Attorney General J. Joseph Curran Jr. recently announced that he will require educational training of all public employees about state FOI laws. Robert McDonald, a spokesman for the attorney general, said FOI education programs have been conducted for years, but the new plan is to “train the trainers” with attorneys who actually know the law.

An FOI audit in Iowa, published in September 2000, produced similar results. The ensuing educational training, however, was aimed specifically at law enforcement agencies. Public records requests were denied by law enforcement officials 58 percent of the time, the audit revealed.

“In Iowa we have a strong and valuable tradition of government that is open to public view, including law enforcement,” said State Attorney General Tom Miller, in announcing the newly required educational training program later that year. “This is one of the most important ingredients behind the strong public support most Iowans give to their law enforcement agencies.”

An audit of Maine state agencies, published in November 2002, compelled the state legislature to create the Committee to Study Compliance with Maine’s Freedom of Access Laws, a group designated to ensure public access to government meetings and records. The committee, formed in June, will review the results of the 2002 audit, study local and state government’s compliance with requests, and even plans to revise Maine’s open records law.

However, such results are oftentimes a double-edged sword.

Judy Meyer, a member of the compliance committee and an editor at the (Lewiston) Sun-Journal, says one of her biggest fears is the creation of more exemptions to Maine’s Freedom of Access law. She says the committee will likely recommend a meticulous test for any proposed exemption, which would have to give heavy weight to public interest in the information.

“I think [the test] would give us some protection so that things wouldn’t be written into law just because some special interest group steps forward,” Meyer said.

Sometimes, a basic awareness of the problem is all that is needed for a solution to take shape.

In March 2001, reporter Jay Young of the Altoona Mirror in Pennsylvania conducted his own state FOI Act audit. Of the 47 state agencies he requested public documents from, only 20 complied with Pennsylvania’s Right to Know law. After this audit and a long-running battle over access by media groups, the Pennsylvania legislature updated and strengthened the state’s public records law in June 2002.

“There seemed to be kind of a ‘you take what we give you’ attitude,” Young said. The audit “created an awareness and an acceptability that . . . you weren’t out of line for asking for this information.”

Ed Mullins, chairman of the University of Alabama journalism department, says public awareness was key to the success of a 2003 audit he led. “It really turned out to be an educational process for the citizens, for the press and for public officials,” Mullins said.

The 2003 audit showed that half of the sheriff’s departments and 37 percent of police departments surveyed rejected requests for the front side of incident reports, a document made public in 1999 by opinion of the Alabama attorney general.

A common thread throughout virtually every state audit has been the poor compliance rate of law enforcement officials, who also produced the most hostile responses to record requests. During an Arizona public records audit in 2001, Officer Creig Wallace Jr., of the St. Johns Police Department, filed a suspicious person report on Associated Press reporter Jacques Billeaud following a records request. In Illinois, a reporter approached a sheriff in Edwards County in 1999 with an open records request and a copy of the state FOI Act to show he had a legal right to the information. The sheriff wadded up the state law and told the reporter, “I don’t have to tell you nothing,” The Associated Press reported.

Despite some positive results, access to state and local public records remains a problem for the average person. The solution, says open government advocates, is to keep a spotlight shining on those blind to their state’s public record laws.

“If it’s that hard for journalists, how hard is it for citizens to access public records?” said Davis, of the Freedom of Information Center. “Pretty doggone hard.”