Have sunshine laws burned out?

From the Summer 2003 issue of The News Media & The Law, page 25.

Journalists have, with good reason, been concerned over serious injuries the war on terrorism has inflicted on Freedom of Information. In the last issue of the magazine we detailed some of the losses, and a running commentary on openness, “Behind the Homefront,” appears on the Reporters Committee’s Web site at www.rcfp.org.

In this magazine we look at FOI away from the war to find that, even if national security concerns are discounted, FOI is not very healthy. One article reveals some uncomfortable statistics on federal FOI denials. Another, which examines state enforcement of FOI laws, shows a dearth of sanctions.

Federal agencies used the privacy exemptions to the federal FOI Act six times more often in 2002 than they did in 1998. Reporters knew information that once had been available was now being routinely withheld, ostensibly to protect the privacy of named individuals. In this issue, Reporters Committee’s journalism fellow Jennifer LaFleur looks at the data in yearly agency reports and shows how right they have been.

The losses are terrible. When the public cannot learn who is running government programs, who is affected by them, who is disciplined, who is licensed, who is imprisoned, or who is (or isn’t) getting government monies, it doesn’t know anything about the government. These numbers show that the situation is getting worse and not better.

The U.S. Supreme Court will look again this fall at the privacy exemptions to the FOI Act in Favish v. Office of Independent Counsel. Keep an eye on this case. The decision will affect what reporters are able to get in the future.

A committee on an attorney general’s task force in South Dakota is looking at the enforcement provisions in the state’s open meetings law, hoping to find a way to make the law work. It has not worked all that well.

Dave Bordewyk, general manager of the state’s newspaper association, says school boards will claim the personnel exemption — clearly intended to protect employee evaluations — can be used to close off budget hearings, reasoning that cut programs will ultimately mean fewer employees.

Similarly, he said, officials use an exemption meant to protect consultations with attorneys in pending litigation to go behind closed doors “anytime an attorney shows up.”

Public officials in South Dakota who know the law, know that if they break a law against secrecy, they suffer no consequences. That makes them pretty much like officials everywhere else.

In this issue, Reporters Committee legal intern Katrina Hull examines sanctions for violations of open records and open meetings laws in the states.

Mostly, the worst that can happen to lawbreakers is the court-ordered levy of court costs and attorney fees against the agency, council or board on which the offenders serve. The officials who actually break the law will probably not even suffer a reprimand.

The award of attorneys fees may not be automatic — even when a requester takes his case to court and even when he wins. An attorney Hull interviewed for the article pointed out the sad experience all over the country of weak discretionary penalties and the refusal to enforce them.

Some laws threaten more serious punishment including jail, but only four officials have ever been jailed after violating open records or meetings laws. There are recall actions from time to time over secrecy matters, but they are rarely successful. Judges seem particularly hesitant to come down hard on officials who do “nothing worse” than keep unlawful secrets.

Freedom of Information laws can grow insignificant without any oversight.

Legislators who see their state FOI laws deteriorate for lack of enforcement should amend them.

Their constituents should demand those amendments.

Journalists should make those constituents aware of the shabby treatment of these laws.

And judges should pay due respect to FOI laws and enforce them.

But don’t hold your breath.

–Rebecca Daugherty