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In reporters' role as the eyes and ears of their readers and as citizens seeking information from the government to improve or make more sense of their lives, there is a constant effort to acquire and process information from the government. Although that may be an easy task in some circumstances, it can be daunting in others. When there is a question, legal tools, particularly laws granting public access to government information often known as sunshine, Freedom of Information (FOI) or open meetings laws, can be especially useful. But how do you use them in the best way possible?
FOI Laws
Requesting Records: In many instances, you simply pick up the phone or walk into government offices and ask for the records of your interest. Often that is enough to gain access. If that fails, before getting off the phone or leaving the office, it is suggested that you might say something like "Well, I guess I'll have to submit a FOI request." Sometimes the suggestion that a FOI request may be made is enough to free up the records. If that fails, you submit your FOI request in writing.
How to Request Records: First, the title of the law, Freedom of Information, may be somewhat misleading. It is not a vehicle that requires government officials to answer your questions. While they may and often do so, there is no legal obligation to provide responses to your questions. An FOI law generally deals with existing records and does not require that a government agency prepare a new record in response to a request for information.
When making a request, FOI usually requires that you provide sufficient information to enable staff to locate the records of your interest. Whether a request reasonably describes the records may be dependent on the nature of an agency's filing or record-keeping system. If you are unsure of what you want or how the records are kept (i.e., by name, street address, or perhaps chronologically), ask. Often agency staff must assist in enabling you to make a proper request.
Delays: Many are familiar with the old adage, "Access delayed is access denied." Although an FOI law does not require that agencies jump in response to a request, it is generally intended to require that government agencies make records available whenever and wherever feasible. If you walk into the clerk's office and request the minutes of last month's meeting, often the clerk will simply say, "Sure, they're over there." When an instant response cannot be given, FOI laws usually require that agencies respond in some manner within a certain number of days.
When a request is denied, most often you have the right to appeal to the head or governing body of the agency or the person designated to determine appeals.
Going to Court: If an appeal is denied, you can challenge the denial in court, and FOI laws usually require that the government prove that the records were withheld with justification. NOTE: FOI laws are generally based upon a presumption of access and require that all agency records be disclosed, except those records or portions of records that fall within a series of exceptions to rights of access. Most of those exceptions are based upon the potential harm that would arise if the records are disclosed. When agencies are sued, they often must prove that the harmful effects of disclosure would indeed arise. (That means that they should invoke the Aretha Franklin principle: not "R-E-S-P-E-C-T", but rather "You better think!" before denying access).
If agencies do not meet their burden of proof and you substantially prevail, a judge under many FOI laws may award attorney's fees to you, payable by the agency.
Myths: How many of you have heard something like, "This is a personnel matter. We can’t disclose," or "It's in litigation. We can't discuss it," or "It's under investigation. Sorry, you can't see anything!" None of those statements is true. What they are really saying is, "We don’t want to talk about it." Sometimes it's laziness, and in others, it's the possibility of embarrassment that underlie those statements. Remember: embarrassment is not one of the grounds for withholding records under an FOI law, and it's not one of the grounds for closing meetings under an open meetings law.
Personnel Records: Some aspects of personnel records may justifiably be withheld (i.e., public employees' Social Security numbers, medical information and other items that are unrelated to the performance of their duties). However, other items concerning public employees are typically accessible, including their salaries, overtime pay, gross wages, attendance records, qualifications for the position that they hold, general educational background and, in most cases, disciplinary actions taken against them. You should always challenge a denial of access when you are told that the materials are being denied because they are personnel records. Some aspects of those records are public; others are not.
Litigation: Records indicating legal advice given by a government attorney to government officials may be privileged. However, when litigation has commenced, anyone can walk into the courthouse and usually obtain any of the records that have been filed with the court. Although FOI laws often do not apply to courts, most court records are typically available under other provisions of law.
Investigations: When a crime is committed, portions of records might justifiably be withheld, but others typically must be disclosed. We don't have secret arrests in this country, and the items contained within booking records are usually available. If no arrest has yet been made and the matter is under investigation, records can be withheld insofar as disclosure would interfere with an investigation, deprive a person of a right to a fair trial, or, for example, identify a confidential source. But the fact that a crime has been committed usually requires the disclosure of some portions of law enforcement records.
Open Meetings Laws
What is a Meeting? Everyone has heard the phrase "a rose is a rose is a rose." In most states, a meeting is a meeting is a meeting. When a majority of a government body, such as a town board, a board of education, a planning board, or a city council, gathers for the purpose of conducting public business, that gathering is a "meeting" that falls within the coverage of an open meetings law. It usually doesn't matter whether there is intent to take action or what the gathering is called. A "work session" or "workshop" conducted by a government body is a meeting.
Executive Sessions: An executive session or its equivalent is most often a portion of an open meeting during which the public may be excluded. Most open meetings laws specify and limit the grounds for entry into executive session.
Personnel: When speaking before the National Association of School boards, I asked the crowd: "What is your favorite word for entering into a closed session?" The resounding response was "personnel!" Nevertheless, often that term is a catchall. It's a trap. It's a word that should be eliminated from everyone's vocabulary.
Some personnel matters may be discussed in private, but many others must be discussed publicly. Often the language of the law is precise and authorizes a government body to conduct an executive session to discuss certain matters as they may relate to a particular person, rather than staff generally.
If a board is discussing the budget and whether positions should be retained or eliminated, the focus would not pertain to any particular person. Even though it may be a personnel matter, there would be no basis for going into executive session, for the issue would involve issues of policy (how public money should be allocated, or whether a position is needed).
On the other hand, if the discussion involves whether to promote or fire a specific person, an executive session might properly be held. In that case, the focus would deal with "a particular person" in relation to his or her performance.
Possible Litigation: The courts have held in some states that the litigation exception for entry into executive session is intended to enable a government body to discuss its "litigation strategy" in private so as not to divulge its strategy to its adversary, who may be present at a meeting. They have also held that the threat, the fear, or the possibility of litigation is not enough to justify an executive session. If it were, there would be little left of an open meetings law.
What to Do? What if it doesn't appear that there is a proper basis for going into executive session? What do you do? First, you should have your copy of your state open meetings law with you at all time. And then you invoke the "Tracy Chapman principle of law" (I think she had the best song of the '90s): "Baby just give me one reason, and I'll turn back around." You show the grounds for entry into executive session to the board and ask: "Please tell me where this subject fits." If it doesn’t fit, the board must discuss the issue in public. If you don't raise the question, often nobody else will, and the information may be lost forever.
In some states, there are government agencies created to deal with open government laws, and they are there to be used, and (for those knowledgeable in music trivia) you should invoke the "Bill Withers principle of law": "Use me – until you use me up." They are there to be used. In others, offices of attorneys general or news media associations may be able to offer guidance.
For an idea of what some government "sunshine" agencies do, you can look at the Web site of the New York Committee on Open Government. Just search online for "Committee on Open Government" or "COOG." Last year, in addition to receiving thousands of telephone inquiries and preparing hundreds of legal advisory opinions, the Committee’s Web site (http://www.dos.state.ny.us/coog/coogwww.html) received more than 1.8 million hits from more than 100,000 visitors. For a pretty good sense of what a sunshine agency does, check it out.
Robert J. Freeman is executive director of the New York State Committee on Open Government in Albany.
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I had just turned 13 when I learned that the government in my native country of Cuba had imprisoned more than 15,000 men and women for political reasons. The majority of them were in jail because of their ideas. Others were detained for "conspiracy against the government," and many more for attempting to leave the island, which at that time – as now – was considered treason.
I did not hear the truth about the prisoners through the government's disclosure or from the Cuban press. I learned about it in May of 1977, because in the midst of political overtures to President Jimmy Carter, Fidel Castro decided to offer an interview to American journalist Barbara Walters.
To the surprise of Cuban people accustomed to covert behavior by their government, the interview was broadcast. "What about the political prisoners?" Walters asked. This single inquiry – something I had never before heard asked in Cuba – alerted me to the importance of asking questions that demand precise answers from our leaders.
Walters' pointed question had such a strong impact on me that it sparked my passion to become a journalist. Twenty years after starting my career at The Miami Herald, that passion still guides my pen and my career choices.
On several occasions, I have attempted to return to Cuba to report stories. For example, in 1999 I applied for a visa to interview Cuban government officials about racial conflicts on the island. My visa was denied. The Cuban authorities in Washington D.C said there were no racial issues on the island.
In 2003, I asked for permission to travel to Havana to research information for my book about the 1980 Mariel boatlift, when more than 125,000 Cubans left the island within a five-month period. I was refused again. This time, I was told that the topic was not of interest to Cubans. Even so, my book, "Finding Mañana: A Memoir of a Cuban Exodus," was published. It was well received by literary critics and readers alike despite the Cuban government's refusal to tell its side of the story.
Where I work now, teaching journalism at Columbia University's Graduate School of Journalism, there is a sign at the entrance hall that I often read in the mornings. It is a quote from Joseph Pulitzer, founder of the School of Journalism. It says: "Our Republic and its press will rise or fall together. An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery."
In these uncertain times when governments – including the U.S. government – persistently obscure the facts, Pulitzer's statement echoes even louder.
The public has the need to understand; indeed, the right to know, how their elected leaders exercise the powers vested in government by the electorate. Citizens expect their leaders to treat their power with humility and a sense of mission, to honor the voter's confidence, not to abuse it.
Transparent governments empower and educate their electorate, essential elements for true democracy to function and flourish.
Mirta Ojito is an author and professor at the Graduate School of Journalism, Columbia University, New York.
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It’s Women’s History Month, and it’s not your fault if you didn’t know that.
The tradition started in 1981, when Congress established the second week of March as Women’s History Week. In 1987 they expanded it to a month and every year since, they’ve passed a resolution on it, and the president has issued a proclamation. And yes, he did so this year.
The only sign of it here was on March 8, when Lake County poet laureate Sandra Wade held a reading for International Women’s Day a Redbud Library and urged teachers to give students credit for attending.
OK, we’re not Sonoma County, where the National Women’s History Project started in 1980 and persuaded Congress to pay attention. Their impetus was noticing that only 3 percent of textbook content was about women.
Three percent. It is to laugh, scornfully. Anyone who’s ever watched Western movies knows the nation’s history, to say nothing of the world, is simply teeming with women.
And so are Lake County’s past and present. We’ve had women county supervisors before Denise Rushing. Louise Nan’s superintendent of Konocti Unified School District. A woman started this publication you’re reading.
Dozens, maybe hundreds, of women run our businesses, head political committees, provide health care at all levels, keep volunteer groups running, and lovingly fill that traditional woman’s job, teaching.
Shelby Posada runs the Arts Council, Melissa Fulton runs the Chamber of Commerce. Could you ask for a broader range?
Native women were here when the pioneer families arrived, and today some of them are running things in their tribes. Tracey Avila chairs the Robinson Rancheria Tribal Council. Irenia Quitiquit is Robinson’s environmental director.
(It’s just as well I've only been here four years and don’t know that many people or you’d be getting a very long list of names.)
So – why don’t we celebrate Women’s History Month and the many achievements of our friends and neighbors?
Don’t we care? Or are we just too busy doing today’s work?
Too busy is my guess. So how about we give ourselves a break from how much we are doing to notice what we have done?
And how about sending us a few words on your own favorite piece of women’s history? Mine’s that Mom riveted airplane wings during World War II. Then she made me take typing.
Watch a movie:
– North Country: Based on a real story, stars de-glammed Charlize Theron as one of a handful of women working in the Minnesota iron mines. Forced to labor under sexist conditions, she and her female colleagues fight the relentless harassment of their male co-workers and bring the first class action suit for sexual harassment.
– Iron Jawed Angels (history): From 1912 to 1920, a group of fiery young suffragettes led by Alice Paul (Hilary Swank) and Lucy Burns (Frances O'Connor) band together to wheedle the United States into adapting a Constitutional amendment guaranteeing women the right to vote. Their efforts incur the wrath of President Woodrow Wilson (Bob Gunton) and anger other suffragette leaders (Anjelica Huston and Lois Smith). Not a pretty picture.
– Calendar Girls: Based on a true story. These English women are resilient, resourceful and refined. They're also about to shock the residents of their little town. When one of their own discovers her husband has cancer and needs treatment, the group decides to put out their yearly calendar to raise money for the local cancer center. But instead of the usual Yorkshire dales, they'll grace the pages in the nude.
–Little Miss Sunshine is fiction, but has great insight. It gives us pudgy young Olive (Abigail Breslin), obsessed with beauty pageants, a blessedly sane mother (Toni Colette) who tells her it’s OK to be fat, a twitty father (Greg Kinnear) who redeems himself when he’s horrified by the pageant’s other contestants, all tarted up as premature sex objects. Also, it’s very funny, but rated R, in part for the wonderful Alan Arkin’s foul mouth.
Read a book:
– Inés of My Soul, Isabel Allende, 2006. The Chilean author brings her magic realism to an historic novel, the story of Ines Suarez, who left Spain in the 16th century to find her husband and wound up co-founding a New World nation.
– The Yellow Wallpaper, Charlotte Perkins Gilman, 1892, fiction. What to do with a depressed wife? This doctor husband thinks he knows, but it’s a prescription from hell.
– Writing a Woman’s Life, Carolyn G. Heilbrun, 1988, non-fiction. Great introduction to the historic treatment of women writers, and to rewriting your own life, if it needs that.
– And now for something really light, but crammed with early 20th century history: Laurie R. King’s mystery series based on the premise the retired Sherlock Holmes meets a much, much, younger woman, Mary Russell, who becomes his detecting partner and wife. Start anywhere. You’ll catch up.
E-mail Sophie Annan Jensen at
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These are strange times for people who advocate for open government. On one hand, technological changes appear to make information about government more easily available than ever before. We live in a radically changed media environment, in which news about government misconduct seems to reach our televisions instantaneously. And if we look around the world, we see an extraordinary spread of laws like the U.S. Freedom of Information Act. Over 70 countries now have FOI laws, most adopted in the last decade.
And yet we seem to be more concerned with government secrecy than ever before. Indeed, some people claim that secrecy today is the worst in decades. How can both of these stories be true?
It might help to recognize that we are in the middle of an intense, global battle over the principle of governmental openness. In the heat of battle, there's a temptation to employ overheated rhetoric. The truth is that the idea of transparency has gained a lot of ground over the last 20 years. This is evident in the spread of FOI laws, and the number of citizens who say that open government is an important value.
Nonetheless, there are serious challenges to openness. One is executive pushback – the determination of political leaders to reverse laws or policies that guarantee openness. As pressure for openness mounts, this countervailing pressure also intensifies. Of course, we've seen a classic case of pushback in United States, where the Bush administration waged a campaign against openness even before the 9/11 attacks. The administration tightened rules governing the Freedom of Information Act and policies on access to presidential records, among other measures.
However, pushback isn't unique to the United States. The British government led by Tony Blair was elected on a promise to introduce a Freedom of Information Act in 1997, but took eight years to put it into force. The new law was in operation for little more than a year when the Blair government announced substantial fee hikes that could gut the law. The Indian government also adopted a Freedom of Information law in 2005, but within months senior officials were pushing for restrictions. A wave of protests – and hunger strikes – deterred Indian leaders from introducing new limits.
Such struggles will continue in the years ahead. Some advocates argue that FOI laws eventually introduce a "culture of openness" in government – but the evidence tends to support a more hardheaded view. As a Canadian politician once said, the struggle over access to information is ultimately a struggle for political power. A well-organized community of stakeholders, including journalists and public interest groups, is essential to make rules about openness stick in the long run.
Executive pushback isn't the only challenge. The very structure of government is also being transformed, often in ways that undermine openness. One obvious example is the growing role of contractors in performing government functions. A 2006 study estimated that almost 8 million people work for federal government contractors – four times the size of the regular government workforce. As we've seen in Iraq, contractors now perform defense and intelligence tasks that we once thought belonged to government alone.
The problem? Most often, contractors aren't affected by FOI laws, so that internal documents about the use of money or power can't be accessed. Indeed, it may be difficult to obtain even the contract itself, which explains what contractors have promised to do, and how much they will be paid. Around the world, battles for access to government contracts are commonplace.
The structure of government is also being changed in more subtle ways. Since 9/11, we've all been reminded of the need to make difficult tradeoffs between security and openness. Less easily seen are the changes in the defense, intelligence, and policing sectors. Government agencies in different states (and different countries) are linking together more tightly, forming networks aimed at improving collective security. This is an admirable goal. But governments often agree to information-sharing agreements that allow inter-governmental confidentiality to trump FOI laws. OK as long as the network performs well – but bad news when the network fouls up, and journalists or citizens try to find out why.
Another subtle but important change: the growing role of international organizations. We live in a globalized economy, superintended by important institutions such as the World Trade Organization (which referees trade disputes), the International Monetary Fund (which monitors governments' economy policies), or the lesser-known ICANN (which rules the internet). Decisions made by organizations such as these affect the well-being of millions of citizens – but they are not required to comply with the transparency rules that we've imposed on national, state and local governments.
Are we making headway on governmental transparency? Frankly, it's too early to tell. The idea of transparency had gained ground. But it's not yet clear whether we will find ways of tailoring openness rules (like FOI laws) to fit new structures of governance. And we can expect political leaders to continue pushing back, especially as their capacity to control the outflow of government information is challenged more directly.
It's a long road ahead. But it's a road we must follow, if we want to protect the ideal of an open, vibrant democracy.
Alasdair Roberts is a professor of public administration at the Maxwell School of Syracuse University. His 2006 book, "Blacked Out: Government Secrecy in the Information Age," recently won awards from the National Academy of Public Administration and the American Society for Public Administration. His Web site is www.aroberts.us.