Another reason to keep your own records

The use of private firms and agencies to manage public records has been a hassle and a problem for not only records seekers but the government agencies who employ the services as well. Problems inevitably arise with the storage, retrieval or general access to records and the public bodies are usually held accountable for this failure. Miami, Florida is currently feeling this strain as tens of thousands of boxes of public records are being held hostage over a dispute arising from Miami’s supposed failure to pay the records management firm. The firm argues that Miami $340,000 while the city argues that they only owe $22,000. However, the only person who loses in this arrangement is the public who are unable to get to records that rightfully belong to them. Hopefully this issue sends up another warning signal as other governmental bodies consider privatizing such a core function as providing the public with the records which are rightfully theirs.
~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

To read the original article, please see: Miami Herald, “Miami’s files held `hostage'”, 7/25/2010.

I’d like a refund please!

Apparently charging exorbitant fees for open records is not just a problem for Wyoming County, PA . However, at least North Miami Beach if freely moving away from their illegal fees practices. This past week the North Miami Beach city council voted to eliminate a Building Department policy of charging a $100 flat start up fee for all records requests. Currently, the Florida Sunshine law allows for the charging of only reasonable fees for duplication and the cost of searches in special cases when the search is overly broad or time consuming. While this is a move in the right direction, the illegal fee has been charged by the department for three years, without being challenged by citizens and the media. Hopefully other municipalities in Florida and across the country realize that these records belong to the citizens and remove illegal flat rate fees and begin charging for the actual cost of duplication. Best of luck to all the residents of North Miami Beach in obtaining their refunds, though I doubt they will have any luck.

Joshua Meyer
Editor of WikiFOIA
joshualmeyer@gmail.com

To read the original article, please see: iStock Analyst, “Records request flat fee no longer will be charged by North Miami Beach: North Miami Beach officials removed a $100 flat fee for public records requests from the city’s building department.”, 7/23/2010

Mother always said to not roll your eyes

Apparently Elmhurst IL city officials share the same disdain for eye rolling as mothers and teachers across the nation. Darlene Helsop was ejected from a June 14 meeting for sighing and rolling her eyes, which the city officials argued constituted a “disturbance and disorderly conduct”. Helsop, who opposed the councils attempt to hire a lobbyist for state government, was accused of sighing and rolling her eyes during the open meeting discussion of the matter. The council then proceeded to eject her from the meeting, apparently considering a more expansive definition of disturbance that includes backtalk. The city is currently investigating their decision, having their lawyer go over state law and other municipalities to develop an exact definition for future use. We at WikiFOIA are fairly confident that the IL law does not include eye rolling in its definition of disorderly conduct and any decision to include it in future definitions should be protested by council meeting sit ins with a great deal of eye rolling and sighing to boot.

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@wikifoia.org

To read the original article, please see:
Chicago Tribune, “Suburb;Don’t roll your eyes at me”, 7/20/2010

The economic nature of transparency

FOIA advocates across the country have noted a growing trend amongst state and local governments to abuse FOIA by turning it into an income source through charging exorbitant fees for the release of records. However, while this behavior is often justified by claims of high copy costs and the loss of staff time, it is rare that a governmental body admit that the fees charged for records are being used to bring in additional funding, as is the case with the Wyoming County Recorder of Deeds Office in Pennsylvania.

This past week, the Recorder of Deeds rejected a request from the newspaper, The Citizen’s Voice, for records relating to natural gas leases in the state. The Voice sought the records as a part of a comprehensive online database of gas leases in the state. When the newspaper requested the documents in question as a digital file, either emailed or copied on to a flash drive, in order to better facilitate the transition to the database, the office claimed “My office staff, including myself, are not trained or familiar with loading information on a ‘flash drive’ as suggested by the requester” (Gas lease records at center of right-to-know controversy).

Clearly, in this modern day and age, the inability of an entire government office to use either flash drives or email accounts to transfer files displays either a complete oversight in training or a blatant lie. This lie became more apparent when the newspaper pushed for the records release, even sending someone to the office to retrieve the records. The newspaper employee saw the files on a computer and requested that they be transferred to a flash drive and the office employee stated that it was against the offices policy. In addition, the office claimed that they “had to protect their records” clearly hinting at need to maintain the income from the records being produced (Gas lease records at center of right-to-know controversy).

The notion of protecting records which are not exempt under the law from the public which pays for their creation through tax dollars is as undemocratic as it is absurd. While it is easy to understand the need for cash strapped government agencies to recover copying fees in order to maintain their budget, the use of copying fees to augment income runs counter to the very principles of the public records act. Currently, the Pennsylvania law allows for the charging of reasonable fees for copying established by the Pennsylvania Office of Open Records and extended fees, based on market value, for data sets issued to private citizens. However, a 2008 directive from the Governor went against the Office of Open Records and stated that agencies may charge reasonable fees for staff time and searches. However, if files and government documents can be transferred easily through the use of technology, without cost to either the government office or the citizen, it should be advocated, encouraged and used. The original goal of the open records act is the free flow of information from government to citizens and anything that better enables the government to achieve that goal should be employed.

The Citizen’s Voice is currently filing an appeal at the state office of open records. We wish them the best of luck in overturning this absurd policy. If the courts rule in their favor, and order that government agencies must release documents in digital form, without charging for the transfer, it would be a big win for open records advocates in Pennsylvania and set another example of a state which truly supports the meaning and intention of transparency and openness in government.

~Joshua Meyer
Editor of WikiFOIA
joshualmeyer@gmail.com

To read the original article from the Citizens Voice, please see Gas lease records at center of right-to-know controversy.

Texas city plays musical records to evade the FOIA law

For the latest award for creative FOIA avoidance (see also The ever popular enemies exemption and Plano Texas Economic Development Board explores new ways to avoid records requests) we return to Texas, where the city of Arlington is playing musical records in an attempt to evade the public records law. The city opted to move their criminal records, including police records, prosecution records and trial records from the local police department to the local court house. Why, you may ask, would a city choose to transfer control of such critical records? The reality is that the Texas Public Information Act specifically does not include the judiciary. By transferring control of the records, Arlington is essentially moving the records from a department which is subject to FOIA to one which is not.

However, local FOIA advocates are not sitting by and letting this happen. The Dallas law firm Sullo & Bobbitt has filed suit in an attempt to prevent the transfer of the records. Bill Aleshire, the attorney representing the firm justified the suit, telling the press, “Imagine if every city did this. You would have municipal judges deciding how and what information should be released.” See: “Arlington sued over access to criminal records”

This is obviously a dangerous precedent and one that should be prevented. The transfer of public records to organizations and entities which are not subject to FOIA laws has typically been prevented by both litigation and legislation. In fact, Texas law already prevents the concealment of public records in private agencies by including in its definition of public body all private entities which receive funds or are controlled by governmental agencies. The fact that Texas law attempts to prevent the concealment of records in private agencies but fails to address the issue presented by the transfer of records to a body that is publicly funded and considered a branch of the government constitutes a serious negligence on the part of the Texas legislature which will hopefully be corrected by the courts soon.

The Pros and Cons of Open Meetings

In my searches for transparency related news, I recently came across an article entitled “Airing public meetings: transparency or a circus?” from the Southtown Star out of Chicago, IL (May 22, 2010). The article centers on the New Lenox District 122 school district, which recently confronted the issue of whether or not to continue to air their public meetings. Historically, the school district has been one of the only districts to air their meetings on cable television. This has been made possible because the municipalities of New Lenox and Mokena have made meeting rooms complete with video equipment available to all governing bodies in the municipality, thus making the cost of airing meetings more feasible.

However, despite the reduced cost, the school district recently decided to stop airing their public meetings. To back this decision up, New Lennox provided a laundry list of reasons not to air public meetings, and the article did its best to seek out other justifications for eliminating this public service. The New Lennox district made its decision based on the fact that as election season approaches, the publicly broadcast meetings often become a form of free advertising for not only challengers but incumbents as well. This grandstanding often results in direct personal attacks on board members by challengers and frequent aggressive debates between electoral opponents. Other districts in the Chicago area cited such reasons as a lack of interest and attendance and a lack of volunteers or equipment. In addition, the Lincoln-Way school district cited equality issues, focusing on the numerous residents who would not have meeting access due to a lack of cable television. And finally, New Lennox board president Kathy Markus justified their own decision by stating that meetings should not be taped because they are an opportunity to “not really worry about what we are saying.”

While these reasons may provide some justification, they in now way provide an adequate defense for the decision to not record and air meetings. While grandstanding may be an issue, it can usually be prevented with a few basic rules. In addition, the extra focus during election time may shed light on problems with either incumbents or challengers which may aid voters in determining whom to support. In addition, the lack of volunteers may be solved by easily enlisting local schools or libraries, most of which already posses basic recording equipment.  The library in my community of Euclid OH already records and posts videos of city council meetings and committees in the interest of preserving historical information about the city. In addition, the article itself cited high school video clubs as a potential group to tape school board meetings. In addition, while lack of interest may slow a public bodies decision to record meetings, the public interest at the time of the recording is in no way indicative of the potential interest in the meeting in the future. Finally, a lack of mutual access can be solved by not only airing the meetings on television, but also streaming them online, a resource which most of the community has access to at some level.

This issue of justifying the recording of open meetings came up during one of our weekly Friday FOIA chats. During this chat, the participants of FOIA Friday also developed a laundry list of reasons most of which help to overcome the justifications of the Chicago area school boards. While this list incorporates many of the reasons i mentioned above, it also includes other factors that may encourage communities to begin recording all of their public meetings. The following is a compiled list of justifications mentioned by FOIA chat participants:

Benefits to public officials

  • Accessibility is obviously key for transparency. More accessible meetings means greater trust in the government from citizens.
  • A method of civic engagement. Meetings available online whenever citizens need them would increase interest in local government.
  • Politically, officials would be able to prove their value to their constituents and sometimes use videos against their opponents.
  • Officials can provide context for actions; justify decisions, prove they were taken out of context or misquoted.
  • Public officials can research what was discussed before so that they can better remember what was hashed out.
  • Possibility of fewer FOIA requests due to info online already for citizens. Self-service on the part of citizens.

Integrity of information

  • Historical context: could be interesting for historical studies.
  • Videos provide truth, meeting minutes don’t always.
  • Recording gives quotes, color, context.
  • Tone of voice & body language are also important.

Benefits to citizens

  • When main meetings are during regular work hours, video posted online is a solution for both governments and citizens.
  • Online meetings reach citizens where they are on their time, 24/7.

Hopefully, New Lennox and any other public body who is not currently airing meetings will reconsider their decision and employ a few of the tactics and justifications mentioned here to beginning doing so. The mass recording of public meetings will not only do a great deal to increase transparency, but will also aid in the historical preservation of records for years to come and set a powerful example to all levels of government that government must be open and transparent in order to function in the public’s best interests.

A special thanks to Diana Lopez for assembling this list of reasons, and an additional thanks to all of those who participate in FOIA Friday chats. To learn more about FOIA Friday chats, see my blog or our Wiki Page.

The ever popular “enemies” exemption

Apparently the city council of Lawrence MA is under the misconception that there is an exemption within the Massachusetts Public Record Act that allows for the prevention of the release of documents to “enemies” of the city. The city recently cited this search for enemies as a reasoning for its delayed response to the Boston Herald’s request for city payroll documents. The request took almost two months, well past the 10 day time period established by Massachusetts law, especially for payroll records which are clearly public records. In response to questions from the Boston Herald about the lengthy response time City Attorney Charles D. Boddy Jr. assured the Herald that the city has “a lot of enemies” and that he had to insure that the records weren’t going to enemies of the city. The current law does not place any restrictions on the use of records, nor does it require any statement of purpose. Hopefully the Massachusetts Attorney General catches wind of this and corrects the cities clear misconceptions about public records laws. To read the full story from the Boston Herald, see: “City blames delay of records release on ‘enemies’”, 5/18/2010.