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Joel Campbell Freedom of Information Committee Society of Professional Journalists Associate Professor Department of Communicatons Brigham Young University. Why Freedom of Information?. James madison.

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why freedom of information

Joel Campbell

Freedom of Information Committee

Society of Professional Journalists

Associate Professor

Department of Communicatons

Brigham Young University

Why Freedom of Information?

james madison
James madison
  •  A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.
in the words of presidents

Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.

-- John Adams

Let the people know the facts, and the country will be safe.

-- Abraham Lincoln

We must never forget that the free flow of information is essential to a democratic society.

-- Bill Clinton

In the words of presidents
question who said this

“When information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and -- eventually -- incapable of determining their own destinies.”

Abraham Lincoln

Bill Clinton

Richard Nixon

John F. Kennedy

Question: Who said this?
most secretive times in u s history

War of 1812

World War I

World War II

Civil War

Post 9/11

Most secretive times in u.s. history?
a human right

Freedom of information is recognized in international law. Article 19 of both the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights provide that every person shall have the right to seek and impart information. An international court has recognized the right to seek information includes a right of freedom of information.

A human right
a u s right to know

“Democracy dies behind closed doors.”– Judge Damon Keith

Detroit Free Press v. Ashcroft, 303 F.3d 681 (August 26, 2002)

Successful challenge of closed court proceedings involving non-citizens following 9/11 terrorist attacks,

A U.S. RIGHT TO KNOW
two rights implied
Right to know

Right to ask

  • ProactiveThe positive obligation of public bodies to provide, to publish and to disseminate information about their main activities, budgets and policies so that the public can know what they are doing, can participate in public matters and can control how public authorities are behaving.
  • ReactiveThe right of all persons to ask public officials for information about what they are doing and any documents they hold and the right to receive an answer. The majority of information held by public bodies should be available, but there are some cases where the information is withheld in order to protect privacy, national security or commercial interests.
Two rights implied
the impact of foi

Some 86 countries around the world now have some form of Freedom of Information (FOI) legislation with many more considering or developing it. This trend gained momentum during the 1990s across the world.

The UK implemented its 2000 FOIA in 2005.

FOI legislation is pending in Brazil and Philippines.

Communist countries recognize basic information access rights.

The IMPACT OF fOI
general goals of foi

1. Increase transparency and openness

2. Increase accountability and decrease corruption

3. Improve the quality of government decision-making

4. Improve public understanding of decision-making

5. Increase public participation

6. Increase public trust

7. Increase security

Source; Stated goals of the UK FOIA 2000, National Security Archive

general goals of foi
freedom of information sunshine laws

U.S. Constitution – First Amendment right to attend

Court hearings and implied record access

(Some First Amendment theorists have argued for that the First Amendment should extend to protect receiving and distributing information from government, but that has never been recognized by a U.S. Supreme Court majority)

U.S. Freedom of Information Act - FOIA (records)

U.S. Government in the Sunshine Act (meetings)

Utah Government Records Access and Management Act - GRAMA

Utah Open and Public Meetings Act

Freedom of Information – “Sunshine Laws”
a bit of history
A bit of history

First records access law passed in Sweden (1766),

Anders Chydenius (1729-1803)

(pronounced Anders KyDenies)

Sweden’s Principle of Public Access means that the general public are to be guaranteed an unimpeded view of activities pursued by the government and local authorities; all documents handled by the authorities are public unless legislation explicitly and specifically states otherwise

u s foia
U.S. FOIA
  • The first modern legislation was the United States FOI Act of 1966.
  • Championed by Rep. John E. Moss, a Democratic congressman from California, is known as the legislative father of FOIA
  • It was updated in 1974, 1986, 1996, 2002.

FOIA was signed reluctantly by President Lyndon Johnson in 1966. As Johnson's White House press secretary said years later,

"LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House."

In fact, the bill was signed on July 4 without any signing ceremony.

utah s grama

Enacted in 1991 Legislative session

Update nearly every session since.

2011 – HB477

Costs

Privacy

Technology

Balancing test

UTAH’s GRAMA
stories using foi laws

Salaries of coaches and leading elected officials

Olympic bribery scandal investigation

Campaign contributors to politicians

Stories showing how soldiers were sprayed with biological agents at Dugway Proving Ground

Effects on “downwinders” from above ground nuclear tests

Stories using FOI laws
stories using foia

Radiation experimentation

Increased health risks in work places

Wasteful government spending

Campaign finance

Lobbyist expenditures

Travel of members of Congress

Homeland security expenditures

Audits of military bases

Biological and chemical exposures

Safety in national parks

501 c 3s – IRS Form 990 – Guidestar.org

Stories Using FOIA
public records for every day

Police reports

School teacher disciplinary records

Voter registration records

Professional licenses

Audit reports

Correspondence

Incorporation records

Public records for every day
sandy salaries 2008

"I'm sure the administrators are getting nearly all of the bonus money," wrote one employee. "I've heard rumors that the chief receives up to $10,000,” wrote an employee in an e-mail.

After a three-year legal battle, the Salt Lake Tribune gained access to information about an extensive bonus program at Sandy City. a bonus program that disproportionately rewards top administrators from all city departments -- and even provides Sandy Mayor Tom Dolan with a $1,000+ "thank you" bonus, each year.Dolan's check pales in comparison to those received by city administrator Byron Jorgenson and 11 other city leaders who help administer the program, each of whom picks up the equivalent of about a month's salary in bonuses, year after year.

Meanwhile, most city employees who do get bonuses get the equivalent of a few day's pay. And hundreds get nothing at all.

Sandy salaries - 2008
foi grama challenges today

Technology…. Cloud computing, Facebook, social media, text message

Lack of planning at front end of records storage development

Lack of data to formulate policy

Privacy

Abuse of records – political participation

Misunderstanding, Ignorance

Culture of secrecy

Over charging

Over classification

Wikileaks syndrome

Foi/GRAMA challenges today
the power of access
The power of access
  • At least a third of news stories are based in part on open records, meetings or court proceedings (SPJ 2001 study of 3,192 stories)
  • Journalists increasingly having to fight for records to circumvent growing walls of secrecy and spin (despite what Nixon or other officials would say)
  • Documents help win Pulitzers
  • Documents help change the world
utah government records access and management act grama
Utah Government Records Access and Management Act (GRAMA)
  • All records are considered public unless otherwise specified
  • If public interest outweighs private interest the record may be disclosed
  • Right to inspect records free of charge
  • Government cannot use form of record to restrict access.
  • No use test
  • No expertise test
grama request process
GRAMA request process
  • Find the record keeper
  • Finesse a request
  • Make a written request
  • Wait for a response
  • Appeal to the head of an agency
  • State records committee or court
  • Court
grama request concepts
GRAMA request concepts
  • Not held by state, check local ordinances
  • 10 days for normal response
  • 5 days for expedited response involving “public interest”
  • Request for fee waiver for “public interest”
  • Journalists preparing a story for air or publication considered acting in “public interest”
five categories of records
Five categories of records
  • Public – Salaries of public officials

-Public Tier II – police records

  • Private – Medical and welfare records
  • Controlled – Adoption records
  • Protected – Trade secrets
  • Limited – Catch-all exemption
access strategy handling denials
Access strategy: Handling denials

If they say…

  • “Your description is inadequate.”
  • “The requested material does not exist.”
  • “We don’t trust how you might use the information.”
  • “We don’t have time or resources to handle your request.”
  • “Parts of the records are exempt, so you can’t have anything.”
  • “We don’t have to give you nothin’!” (actual quote from a sheriff)
  • “OK. That will be $450,000, please.”
  • “Just sign here on this contract line.”
grama

All records are considered public unless otherwise specified

If public interest outweighs private interest the record may be disclosed

Right to inspect records free of charge

Government cannot use form of record to restrict access.

No use test

No expertise test

GRAMA
slide37

Who is covered?

    • Executive Branch departments, agencies, and offices; federal regulatory agencies; and federal corporations.
  • Who is not covered?
    • Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President, are not subject to the FOIA

Source: National Security Archive

FOIA
u s freedom of information act foia exemptions
U.S. Freedom of Information Act (FOIA) Exemptions
  • National security
  • Internal agency personnel rules
  • Information exempted by dozens of federal laws already on the books – “Catch-all exemption”
  • Trade secrets and confidential commercial information
  • Internal agency memoranda and policy decisions
  • Personal privacy – The Privacy Act
  • Law enforcement investigations
  • Federally regulated banks
  • Oil and gas wells
fee waivers

For all non-commercial requesters the first two hours of search time and 100 pages of copying free of charge.

If you are a representative of the news media, you are entitled to waiver of all search and review fees.

In addition, all fees, including copying, must be waived by the agency if the material requested "is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester."

Fee waivers
utah open meetings act keys

A quorum must be present

Notice must be made 24 hours in advance

Meetings must be closed by 2/3 vote

Agenda must be posted or mailed

Minutes must be taken and are public documents

Utah Open Meetings Act keys
open meetings act keys

Recordings of open sessions

Detailed written minutes and recordings must be kept of closed sessions except discussions of character and security

Sworn statement needed after character and security discussions

Misdemeanor penalty

Open Meetings Act keys
eight reasons to close a meeting

Discussion of character, professional competence or physical or mental health of an individual

Strategy sessions for collective bargaining

Strategy sessions for “imminent” litigation

Strategy sessions to discuss the purchase, exchange, or lease of real property when public discussion of the transaction would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on the best possible terms.

Eight reasons to close a meeting
eight reasons to close a meeting1

Strategy sessions to discuss the sale of real property when: value would be disclosed, notice of sale had been given, terms of sale are disclosed

Security discussions

Investigations of criminal misconduct

Discussion of “commercial information” for property tax appeals

Eight reasons to close a meeting
top 10 meetings tips

Diffuse the open meetings bomb.

“Retreats” should raise a red flag.

Be careful of attorney-client privilege.

Challenge “stealth agendas

Question boilerplate closures.

Beware or “electronic meetings”

No votes for “executive sessions”

Beware of “work meetings” or “committee of the whole” meetings

Get the meeting documents

Beware of executive sessions for non-specific times and locations

Top 10 Meetings Tips