Here are some contributions from FOIA advocates that were posted for distribution before or during Sunshine Week 2024.
But every week is Sunshine Week if someone asks to see government records.
Two pieces by David Cuillier, Ph.D. (he/him), director of the Joseph L. Brechner Freedom of Information Project at the University of Florida and co-author of “The Art of Access: Strategies for Acquiring Public Records.” He can be reached at cuillierd@ufl.edu.
1. IT’S NOt EASY
Growing secrecy limits government accountability
By David Cuillier
When I started covering crime as a reporter for small newspapers in the 1980s, I was assigned to walk to the police department lobby each morning and look through all of the previous day’s police reports, clipped to a board on the counter, containing all the details laid out for anyone to see. We were able to report to the community each day on the major events in town – to explain why people heard sirens, or saw a smoke plume.
By the 1990s, the clipboards were moved out of the lobby, so we asked at the counter to see them. Then we were told we had to review them with the sergeant on duty. Then we were told we couldn’t see them – we had to ask the police what they felt was newsworthy. Then we were told to submit a public records request, and wait for days or weeks – if we got them at all.
For decades, journalists and civic activists have lamented the increasing secrecy of government – the times, they were denied government information, particularly from public records requests. Reports have shown secrecy getting worse at the federal, state and local government levels.
But those were usually anecdotal reports of problems. Now, there is data that brings those refusals into focus and which provides a fuller picture of government agencies hiding their work from the public they ostensibly serve.
Openness benefits people and society
The stakes, and potential ramifications for everyday people, are significant.
Access to government records helps people research their family history, identify quality schools for their children, monitor the cleanliness of their drinking water, background-check their online dates, and hold their local town officials accountable.
And there are clear benefits: Open records are proven to lead to less sex-offender recidivism, fewer food service complaints, increased trust in government institutions and reduced corruption.
Stanford University professor James Hamilton calculated that for every dollar spent by newspapers on public records-based journalism, society realizes benefits worth US$287 in lower taxes and saved lives.
Less transparency year after year
My analysis of government agencies’ compliance with public records laws through 37,000 federal Freedom of Information Act, or FOIA, requests submitted through the nonprofit MuckRock.com shows that a decade ago, if you asked the federal government for a public record, you might get it about half the time – which isn’t great. Today, you might get it about 12% of the time, and the trend is steadily downward.
The trend is similar though less uniform among state and local governments: You might receive what you ask for two-thirds of the time in Idaho or Washington state, but only 10% of the time in Alabama.
Every year in mid-March, since 2005, national Sunshine Week has promoted the right of people to acquire public records and attend public meetings. The Joseph L. Brechner Freedom of Information Project at the University of Florida, where I am the director, has conducted research and education about access to government information for nearly 50 years.
Our research indicates that U.S. government secrecy has never been so prevalent.
Increasing secrecy isn’t tied to any particular president or regime. The administration of President Barack Obama, who declared on his first day of office his intent to be the most transparent president in history, was slower to respond and less likely to release information than George W. Bush’s administration.
President Donald Trump’s administration was more secretive than Obama’s, and transparency continues to slide under the Biden administration.
Data tells a piece of the story
According to annual data collected by the U.S. Department of Justice, federal agencies have become more secretive over the past decade:
- The prevalence of people getting what they asked for through FOIA requests declined from 38% of the time in 2010 to 17% in 2022.
- In 2010, about 13% of the time, federal agencies would reply to FOIA requests by saying they couldn’t find records pertaining to the request. By 2022, the rate of that type of response had increased to 21%, which officials often attributed to outdated record management systems incapable of keeping up with the massive amounts of electronic records, particularly emails.
- Backlogs, where requests languish beyond the 20-day legal requirement for completion, have nearly doubled since 2010, from 12% of total requests to 22%. The average number of days it takes to process simple requests, which require little staff time and a smaller volume of records, has doubled since 2014, from 21 days to 41 days, according to Justice Department reports.
- While some secrecy is necessary to protect national security, the Government Accountability Office reported that the use of FOIA Exemption (b)(3), which allows federal agencies to deny records if another law makes the information secret, has more than doubled during the past decade, even though the number of requests only increased by a third. That includes denying people’s requests about properly withheld intelligence information. But it also includes refusing to release information on topics of great public interest, such as defective consumer products and employment discrimination cases.
Even if agencies grant requests, they present other obstacles. A.Jay Wagner of Marquette University and I surveyed 330 people who requested records in the U.S., finding that high fees to copy documents discourage people, such as journalists, nonprofits and members of the public, from seeking information in the public interest. And some agencies’ public information officers obstruct public access to information. They limit access to the people and documents most important for government transparency and accountability.
Research-based solutions
Just as researchers have identified secrecy spreading through the government, recent studies offer ideas for possible cures.
Independent oversight offices with enforcement power, such as in Connecticut, Ohio, Pennsylvania and more than 80 nations, provide private citizens an alternative to litigation. Instead of having to hire a lawyer to sue the government for what you are entitled to, the independent agencies will review your case, make a determination and force the government to provide you the information.
The federal FOIA Advisory Committee, working since 2014, has provided 52 recommendations for Congress and federal agencies to improve transparency in the United States, crafted from experts and researchers. A subcommittee I co-chair for the current term is close to finishing its assessment of how well the recommendations have been implemented, with results to be released in May 2024. Our preliminary assessment indicates that there is a lot of work left to do, and that Congress and government agencies have ignored many of the recommendations.
2. Tips for writers:
“Bright tips for public support, Sunshine Week”
By David Cuillier, Brechner Freedom of Information Project
We would like to think that the public appreciates investigative reporting and the right to access public records, but sometimes they need to be reminded.
National Sunshine Week, March 10-16, is a great opportunity to do so — a news peg for highlighting freedom of information. It’s a cause everyone can support. As Stanford’s James Hamilton calculated in his “Democracy’s Detectives” book, for every dollar spent on records-based investigative reporting, society reaps $287 in benefits. That is a phenomenal return on investment.
Here are ideas for educating your community on the role of public records in your reporting, their lives and our shared democracy:
- Secrecy stories. Write about the state of access in your community. Publish embargoed stories, op-eds and other materials from the Sunshine Week website, sunshineweek.org.
- Transparency audit. Send requests to cities or schools in your community. Report how well (or not) they respond, and why it matters. The Society of Professional Journalists offers audit tips at spj.org/foitoolkit.asp.
- Records for life. Highlight public records that help people in their everyday lives, such as IRS 990 forms, police reports and drinking water quality results.
- Log jam. Acquire record request logs from local agencies, including disposition. Report what percent are fulfilled, and how fast (or slow).
- Social media. Tag #SunshineWeek on social media. Find suggested posts in the Sunshine Week website’s social media toolkit.
- Get graphic. Produce editorial cartoons, graphics and multimedia projects to educate the public on how to get records.
- Gatherings. Host a webinar or in-person gathering; teach people how to acquire records and why documents matter in your reporting. Put your event on the Sunshine Week website’s calendar
- Transparency tag. Insert a Sunshine Week logo into print and online stories that use public records. Add a note to readers that the story was produced with access to public records.
- Encourage editorials. Urge the opinion folks in your shop to write op-eds or air public service announcements.
When covering transparency, it’s useful to understand the public’s perspective. Most people support FOI in general, but attitudes change quickly when personal privacy or national security are implicated. Studies suggest strong public support for journalists’ access to public records regarding government finances and public safety, such as dam inspection data, but little support for open divorce files or property tax records.
In 2018, a report from Open The Government (now part of the Project On Government Oversight) provided sample language and key points that resonate with the public when communicating about freedom of information (tinyurl.com/FOImessage), including:
- Focus on how access holds government accountable.
- Acknowledge reasonable justifications for some secrecy, such as national security.
- Highlight that voters on both sides of the political aisle begrudge politicians playing by their own rules to enrich themselves, and that transparency discourages that.
It’s also helpful to hammer home records sourcing. A 2021 experiment by University of Florida researcher Jessica Sparks found that subtly citing public records as a source in a news story does not increase credibility or trust in the story or media. Instead, reporters or editors should make it obvious with a prominent breakout “doc box,” linking to the actual records and explaining how they were acquired.
Sunshine Week will celebrate its 20th anniversary next year. The American Society of News Editors launched Sunshine Week in 2005 with support from the John S. and James L. Knight Foundation. ASNE later merged with the Associated Press Media Editors to form the News Leaders Association; however, that association is set to dissolve in June 2024. Anticipating the change, coordination of Sunshine Week transferred to the University of Florida’s Brechner Freedom of Information Project on Dec. 8.
Now, the tradition continues in collaboration with the SPJ, Muckrock, Radio Television Digital News Association, and many other partner organizations and newsrooms — including yours, if you join us!
For more ideas, visit the Sunshine Week website or these tips at tinyurl.com/brightideas06.
David Cuillier, Ph.D. (he/him), is director of the Joseph L. Brechner Freedom of Information Project at the University of Florida and co-author of “The Art of Access: Strategies for Acquiring Public Records.” He can be reached at cuillierd@ufl.edu.
—-------------------
This edition of FOI Files, “Bright tips for public support, Sunshine Week,” was originally published in the Q1 2024 edition of The IRE Journal . A subscription to the magazine is included with IRE membership, and a digital version of the magazine is available on the IRE website free to members. A PDF of the printed column is available.