Is it public? Public records that aren’t and freedom of information

#FOIAchat is a live, weekly Twitter chat that focuses on open records and open meetings issues. We’ve been going strong for over a year.

One question we will address this Friday at 2 PM Eastern time is: is it public? There are several documents that people would be surprised are public. Additionally, there are several documents that aren’t public but perhaps should be.

For an examples of relevant cases:
*Several universities in Michigan are figuring out how to deal with a records request for university professor e-mails relating to the Wisconsin union dispute.
*In New Mexico, there is a court case that will determine in the next 6 months whether private citizens’ complaints against public employees are public records.
*New Hampshire is the only state that I know of that explicitly states its municipal leagues and taxpayer-funded lobbying associations fall under the state’s freedom of information act. (Related: Here’s a list courtesy of WikiFOIA of litigation elating to private companies and FOIA.)

The list of borderline or questionably public information is long. Add exemptions to the mix and “is it public?” becomes an even more pertinent question.

What documents do you think should be public? What records shouldn’t be? Let us know your ideas, or join us live for #FOIAchat this Friday at 2 Eastern time and let us know.

Diana Lopez is Senior Editor of Sunshine Review and moderates FOIAchat. She follows Freedom of Information trends and writes on local government transparency issues.

Fees abuse and redaction, a dangerous mix

Two major FOIA cases have come out of Colorado in the last few days. One, a federal case based on a four year old public records request, has local news station, 9NEWS pitted against the Department of Labor and the Transportation Security Administration over records relating to the transfer of employees to new positions who were already receiving injury benefits, thus resulting in them receiving two salaries (More here…). The other request involves a request to the City of Fort Collins from Face the State, a non-profit, for emails which did not make it into the cities automatic disclosure database online (More here…). While at face, these two requests neither seem out of the ordinary or in any way related, the article on the Fort Collins case is quick to point out that they have one major commonality: both cases have resulted in extremely high fees requested for records due to the necessity of staff time to comb over the records and redact sensitive information. The Department of Labor has requested $1,181,660 and the City wants $1,600 to review 7000 emails.

While it is contestable whether or not public agencies should even charge for records requests, as tax dollars were used to compile the records (for more on this argument see the Oregon AG’s 2010 report), we at WikiFOIA prefer to give public bodies the benefit of the doubt when it comes to fees. So long as fees are used to recuperate the costs of the physical duplication of public records and not used as a source of income or method for restricting access, then they are within the intention of the law. However, more and more public entities abuse these fees for their own purposes and few enough realize that things like search fees and redaction fees should not be used (see also, The economic nature of transparency). Records requests should be responded to efficiently and cost effectively and it is the responsibility of public agencies to establish methods and systems to achieve these goals prior to an individuals request. States should consider preventing the abuse of redaction and search fees by restricting fees to the actual cost of duplication and nothing more. In addition, individual public bodies should develop systems to redact private information up front, and not after a request, resulting in delayed responses and additional fees. With these two measures, governing bodies will be able to more efficiently respond to public records requests, without resorting to exorbitant fees and delayed responses.

To read more about fees structures across the country, see: How much do public records cost?

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

Lessons in Federalism, State government sets the rules on Open Meetings

Someone needs to explain to the city council and mayor of Orange Beach that they in fact do not make the rules with regard to open meetings in the state of Alabama.

This past week, Mayor Tony Kennon ordered an audience member to stop recording a public meeting, alleging that because it was a city council meeting, they had the right to establish those rules. Kennon told the audience, “It’s a public meeting in a city facility, and I just laid down the rules. There will be no videos tonight. There’s no discussion. There’s no negotiation. That’s the bottom line. We’ve already suffered from — there will be no videos tonight.” When pressured as to why, Kennon stated, ““This is a public meeting by the city of Orange Beach, and we get to set the rules. It’s that simple. We’ve suffered an embarrassment by a group of people who are trying to hurt our citizens. You had a chance. You didn’t do the right thing. So we will have no more videography when it comes to discussions around anything to do with the oil spill or anything of that nature until such time we think is appropriate. So do the right thing, and we won’t have this issue. That’s the way I see it.”

Unfortunately for Mayor Kennon, it is not that simple. In Alabama, like in most other states, the state actually sets the rules for Open Meetings and how they are to be conducted (To find your states open meetings law, see WikiFOIA’s list of laws). Based on the Alabama Open Meetings Act, Kennon had no right to stop the citizen from taping the meeting so long as he or she wasn’t disrupting the meeting. In addition, embarrassment on the part of city officials for failures and the exertion of a citizens rights with regard to transparency do not constitute meeting disruptions but what should be the status quo of democratically enacted government.

Too often, local municipalities think they have the right to establish their own rules and forget those requirements which are outlined by the state and which guarantee the citizens right to participation. In addition, just because you are being targeted by citizens does not mean you have the power to fire back by revoking fundamental democratic rights. Accepting a public office comes with the assumption that you must accept criticisms and must be transparent in your operations and your decision making. If you are not able to do that, you should avoid governmental positions and seek a career elsewhere. Hopefully someone is contacting Mayor Kennon to inform him of the error of his ways and future violations can be prevented.

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

To read more on this, please see: Political Skinny: Orange Beach mayor bans videotaping of public hearing

Eyerolling not to be included in definition of disorderly conduct

Updated from: Mother always said not to roll your eyes

A few weeks ago, Elmhurst IL city officials ejected a citizen from a public meeting for rolling her eyes, which the city council members deemed a disturbance to the meeting. After consulting with the city attorney, the council this week was upset to find out that eye rolling could in no way be considered a disturbance to a public meeting. After the original incident, the council moved to adopt a concrete definition of public disturbance, commissioning their attorney to develop the definition. The council later stated that they never intended to include eye-rolling in the definition. Council member Mark Mulliner told the Elmhurst Press, “I want to make sure the public understands this was not in any way intended to expel people for eye-rolling. It got out there and it was a snowball and comedians loved it.” Apparently the original ejection for eye rolling was just a confusion on the part of the press as well, and had no basis in reality nor gave any cause for worry?

Either way, the newly proposed definition is below:

“The presiding officer shall have the power to specifically prohibit any individual from engaging in the following behavior during any meeting of the council or any of its committees:
1. Conduct in violation of any city ordinance, state or federal law, or any
rule or regulation implementing state or federal law;
2. Interruption of speakers; name calling; boisterous remarks;
3. Offensive use of abusive, obscene, profane, slanderous or threatening
language or gestures;
4. Acting or behaving in such an unreasonable manner so as to alarm or
disturb another and to provoke a breach of the peace; and
5. Any other act designed to intimidate, threaten or harm persons, or
damage or destroy property.

The presiding officer has the power to require individuals who have engaged in the above-listed prohibited behavior to leave the meeting, or to order the removal of such an offender. The offender has no right to appeal from such an order of the presiding officer; however, such an order may be appealed by a member of the council, or a committee member, as applicable, present at the meeting. Any ruling by the presiding officer may be overruled by a majority of the members present at such council or committee meeting.”

To read more please see, City attorney says eye-rolling not grounds for meeting ejection

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

Stonewalling via script

I came across one of the most interesting video recordings of an outrageous stonewalling I have encountered in my work on public records and wanted to share it with everyone. In the video, whose link appeared in a news story by the Mercury News of San Jose CA, three citizens attempt to gain access to public records, namely building permits in digital form. The only response the city manager makes is to repeatedly read from a script stating that city policy would not allow the citizens access to the computers and that it was not the city’s policy to train employees on antiquated software. This of course begs the question why there records are being stored in an inaccessible location.

However, that was not the end of it. As the citizens began citing the open records act to the official, all he could do was stand there silently and ignore their comments. In addition, when confronted with the question of whether or not a city official, apparently known to be able to access the records by the citizens, could in fact access the records the city official instead of lying, opted to refuse to respond to their question, instead asking them if he could help with anything else. We wish the trio of citizens the best of luck in their lawsuit and thank them for their good work!

To see the full 8 minute video, Click Here!

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

Facebook and the Open Records Act:Guidelines for a Useful Transparent Governmental Account

This past week another municipality, Redondo Beach CA, disabled their facebook account due to fears of legal troubles resulting from open meetings and open records violation. While the city still uses twitter and youtube, the loss of facebook was criticized by the mayor of the town as “a big mistake”. And while transparency and preventing records violations are of the utmost importance, I can’t help but agree with the mayor.

The us of new social media like facebook and twitter by cities and municipalities presents a unique method for interacting with and notifying their constituencies. The problem that arises with a website like facebook is the need to maintain the information to comply with open records policies and the worry that the comment features will result in either open meetings violations or inappropriate comments that are protected by free speech. However, this problem can be circumvented with a few clear steps which would allow municipalities to embrace a method of communication that would reach a large portion of their citizens.

#1)Understand the goal

Too many municipalities approach Facebook with the goal of creating a method for interactive or dynamic communication between themselves and their citizens. They see the status updates and wall posts as a new democratic forum. While there is certainly room for the advancement of digital democratic forums, Facebook’s international reach and inability to back up content renders it a less ideal method for achieving this goal. For municipalities, Facebook should be used to post concrete information, including information related to municipal contact information, meeting times, links to agendas and status updates concerning upcoming meetings. While, most of the information I would recommend putting on the site can be found on numerous municipality websites, the benefit of using Facebook is that it would reach citizens with real time updates on issues. Municipalities should keep this goal in mind when establishing privacy settings. They should be open to Facebook “friending” anyone while at the same time keeping their wall and contact information transparent and open for viewing to everyone it insure ease of access for those interested.

#2)Restrict comments

While every municipality and public body should be open to critique and comment, Facebook may not be the best method for doing so. The potential to add comments presents serious problems for open meetings violation when repeated comments are made by city council members. In addition, hostile comments which would be protected by free political speech are not well suited for a Facebook environment. Municipalities should disable comments and disallow anyone from posting on their walls to prevent these issues. This can be done by simply entering the accounts privacy settings and making the appropriate changes.

#3)Messages and a dedicated email

Not to disable all means of Facebook communication, municipalities should still employ the message features on Facebook to allow citizens easy access to comment on the political happenings of the town or city. However, municipality directors should have the foresight to use a dedicated email address to send and receive(more receive) only Facebook comments and information. In addition, this email address should be fully transparent and comply fully with the states open records laws.

#4)Keep it simple:don’t comment and avoid messaging

Unfortunately for municipalities, for Facebook to be feasible within transparency laws, communication needs to be extremely restricted. Due to open records restrictions, municipalities need to avoid commenting on other peoples status’s and avoid writing on their walls. Comments should be restricted to their own wall posts and nothing more. In addition, municipalities should be cautious about sending messages with the message feature for the same reason. Instead, municipalities could use their dedicated facebook email accounts to reply to messages, thus insuring the preservation of emails and transparency. If a municipality decided to use the message feature, either to reply to messages sent or to send broad messages to large citizen groups then the municipality should be cautious and always save a back up of the message off facebook, including the list of individuals sent to. Finally, and it goes without saying, don’t install and use any applications. That is just asking for trouble!

#5)Always backup

By restricting comments to only wall posts and preventing other citizens from commenting or posting on the municipalities wall, public bodies insure that a simple record can be maintained to include all wall posts for the purposes of compliance with public records laws. At the end of each day, assign a public employee the task of taking five minutes and copying the wall posts into the appropriate shared document and maintaining those wall posts for future records requests. This, combined with the dedicated email address, will assure compliance with the open records act, and prevent open meetings abuses and inappropriate comments from surfacing on a city website.

While this structure is less than ideal, and doesn’t provide the same benefits as the interactive website may offer the average citizen, it is none-the-less useful and helpful tool for both the public body and citizens. Posting contact information and meetings calendars can be an extremely useful use of the bio portion of the facebook page. In addition, while this information may already be made available on the website, it may reach a different group of constituents on facebook. In addition the use of status updates to post meeting announcements, links to agendas and minutes as well as general local news would allow municipalities and governing bodies the opportunity to send a constant stream of important governmental information to their citizens. While it can’t be treated like a personal account, so long as governing bodies follow the five guidelines outlined above, problems with transparency laws and inappropriate comments should be eliminated and citizens and the government alike may enjoy the benefits of more direct contact and notification about important local events and governmental decisions.

~Joshua Meyer
Editor of WikiFOIA
http://www.wikifoia.org

SEC FOIA exemption not uncommon, but still poorly done

The FOIA world has been at arms over the past few days over a newly “discovered” Federal FOIA exemption found within the freshly signed Financial Reform Bill. The exemption explicitly exempts the Securities and Exchange Commission from FOIA requests for information relating to “surveillance, risk assessments or other regulatory and oversight activities” and is designed to protected increased surveillance and investigatory powers granted to the SEC in an attempt to guard against future economic problems and recessions. John Nester, an SEC spokesman, summarized this intention, telling the press:

“The new provision applies to information obtained through examinations or derived from that information. We are expanding our examination program’s surveillance and risk assessment efforts in order to provide more sophisticated and effective Wall Street oversight. The success of these efforts depends on our ability to obtain documents and other information from brokers, investment advisers and other registrants. The new legislation makes certain that we can obtain documents from registrants for risk assessment and surveillance under similar conditions that already exist by law for our examinations. Because registrants insist on confidential treatment of their documents, this new provision also removes an opportunity for brokers, investment advisers and other registrants to refuse to cooperate with our examination document requests.”

I personally do not feel comfortable weighing in on the impact of this exemption on the federal FOIA, a topic with which I am less experienced. In addition, I don’t care to weigh in on any of the partisan debate surrounding the exemption, as I believe neutrality is key, especially within open records policies. I will however state that, despite popular opinion, the exemption or at least its intention is not that outrageous or even uncommon amongst state open records laws.

While almost all states exempt information like trade secrets and information which if released might result in unfair trade practices, both exemptions which could in fact cover some of the material the SEC is seeking to protect, many states expand on this by exempting financial investigatory materials. At least the following seven states have exemptions similar to the SEC’s new exemption:

State: Citation: Exemption:
Alaska Alaska Stat. 40.25.120.10B Guidlines for investigations, the release of which could result in avoidance of the law.
Connecticut Conn. Gen. Stat. Chapter 14 Sec. 1-210.5B Freely given financial information, not required to be collected by statute.
Kentucky Kentucky ORA 68.878(e) “Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to, banks, savings and loan associations, and credit unions, which disclose the agency’s internal examining or audit criteria and related analytical methods;”
Maryland Maryland Statute 10-616.u Surveillance information.
Oregon Or. Rev. Stat. Chapter 192, 501(9) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732.(Examinations section)
Virginia VA Code § 2.2-3705.6. Broad reaching trade secrets exemptions targeting numerous specific industries.
West Virginia West Virginia Code 29B-1-4(a)(7) “Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers;”

However, while this exemption is not terribly uncommon and is generally granted with a good intention, namely protecting the financial and proprietary information collected from private agencies during regulatory investigations, the current Federal exemption has a few problems.

First and foremost the exemption as written is somewhat broad and poorly constructed. The first exemption found in the law merely applies old FOIA laws to new information gathered by the SEC. The exemption in the law found in Sec 112 (5)(C) states that “(C) FREEDOM OF INFORMATION ACT- Section 552 of title 5, United States Code, including the exceptions thereunder, shall apply to any data or information submitted under this subsection and subtitle B.” Essentially, this exemption is only applying the original exemptions set forth in the FOIA to the newly collected information by the SEC. This is not a broad reaching exemption, but merely a restatement of old exemptions.

However, the addition of Section 919I states,

Except as provided in subsection (f), the Commission shall not be compelled to disclose records or information obtained pursuant to section 17(b), or records or information based upon or derived from such records or information, if such records or information have been obtained by the Commission for use in furtherance of the purposes of this title, including surveillance, risk assessments, or other regulatory and oversight activities.

This exemption is slightly broader and more poorly written. While the exemption does seem to intend to only include investigatory information, the insertion of the phrase “other regulatory and oversight activities” broadens the scope and leaves a great deal of ambiguity. Therein lies the real problem with the bill. While the intention may be good, exemptions, like most laws originating in the legislature, should be arbitrary and clear, leaving little work for the courts to expand or clarify the legislation and consequentially little opportunity for government agencies to abuse the exemption.

In addition to poor wording, the fact that this exemption slid into such an enormous bill presents a serious problem for our legislature. Suggesting problems more with the legislative process rather than the bill itself, the inclusion of a hidden FOIA exemption poses a direct assault on American democratic values and the legislative process. The minute a bill becomes too large for a legislator to read entirely, let alone an average citizen, is the minute that the American government moves from a democracy by and for the people to a democracy by and for the bureaucracy. Citizens should vocally criticize their legislators on both sides of the isle for failing to bring to light such an important FOIA exemption prior to passage.

Thus, while the intention of the law is not outrageous or unheard of, the wording and the secrecy of the implementation will pose serious issues for the laws implementation and retention. The law should be modified so as to increase the specificity of the exemption, and the American public should become more vocally critical about the ability of legislators to slide in hidden legislation.

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

To read the original news article announcing the broad exemption, please see: SEC Says New Financial Regulation Law Exempts it From Public Disclosure

To read other articles on the bill, see: Obama signs broad reform of financial regulation into law and Fox News invents a rule exempting SEC from FOIA compliance