Cutting back without closing up

From the Winter 2009 issue of The News Media & The Law, page 15.

In Gainesville, Fla., city hall is closed on Friday.

It saves money, a common goal for public and private entities alike these days. But it also knocks a day off the time citizens have to access city records and resources.

Gainesville isn’t alone in this, of course: Across the country, local governments are responding in different ways to the financial crisis that has rocked their budgets.

Some cost-cutting measures involve rolling back openness. Washington state is considering a new policy of charging search fees for records requests, according to some open government advocates. In Connecticut, several towns actually took down entire Web sites in 2008 for fear they couldn’t afford to ensure the sites lived up to the state government’s transparency requirements.

Ironically, these scattered attempts to shuffle open records requests and laws under the rug are coinciding with an increased premium, filtered down from Washington, on transparent government.

“If anything, there is greater taxpayer interest in the manner in which public money is spent than ever before,” said Robert Freeman, who runs New York’s Committee on Open Government.

In Connecticut, the problems arose when the legislature required towns that maintain a Web site to post notice of upcoming meetings and the minutes from them, starting Oct. 1.

“Generally speaking, there’s an increased concern on the part of public officials that unfunded mandates become even more difficult to comply with,” said Eric Turner, the managing director of Connecticut’s Freedom of Information Commission.

The new law prompted several small towns, including Harwinton, to stop operating their Web sites altogether, and drew attention from news outlets like The New York Times.

“Municipalities are saying that it creates a great hardship and expense for them and they want to postpone or . . . defer the implementation of this,” Turner said. “We believe they could do it and not only would it be relatively easy to do, it could be helpful.”

Since the initial outcry, Turner said, a few towns have managed to post the requisite information without trouble.

Looking at the state’s transparency apparatus more broadly, Turner said the economic woes for now have not translated into staffing cutbacks at the Commission or among personnel who process open records requests at the local level. But as the budget pressures increase, that may change, creating more hurdles to government access.

Meanwhile in Washington state, fiscal woes are bringing lawmakers to look closely at certain transparency mechanisms, according to National Freedom of Information Coalition director and University of Missouri professor Charles Davis.

In what Davis says is a “direct response to budgetary pressure. . . . no doubt about it,” the state might soon for the first time charge records search fees. There and elsewhere, a free records search is increasingly viewed as a luxury for better economic times, Davis said. Now, fees are eyed as a way to help fill in a budget shortfall.

But, Davis is quick to point out, citizens already pay taxes for that purpose — the records belong to the public, not the government.

“It’s not so much that people are providing less information” because of the economy, Davis said. “It has more to do with reduced staff and increased pressure cost structures.”

In New Britain, Conn., the city council in December considered changing a local ordinance that gives requesters up to 40 free pages of copies a year because the city was losing revenue.

In Pennsylvania, a change in the open records law mandated local governments designate an open records officer by Jan. 1, 2009. Some governments pushed back, not sure if they could afford to hire someone or if they could just add the job duties to someone already employed.

In Dunbar, W.V., the city council has started charging $10 an hour to process records requests. The local mayor said it was because the city was “flooded” with FOIA requests, according to the Charleston Gazette.

Yet, Freeman, of the Committee on Open Government, says there hasn’t yet been a broad budgetary pushback in New York against the state Freedom of Information Law.

In part, that may be because New York’s attorney’s fee provisions provide an incentive for governments to comply with the statutory deadlines. The law also contains a provision that requires agencies to accept electronic requests for records and allow electronic access to them.

“That little provision, which slipped through with no fanfare, no editorial support,” Freeman said, “I believe it has changed the relationship between the people and their government.”

The only fees allowed in New York are copying fees — and now Freeman says those fees are increasingly irrelevant. “A lot of people are getting a lot of information for nothing.”

That, in turn, is saving the taxpayers money, Freeman says. And in a state where freedom of information has become part of the language of the bureaucracy, as Freeman says, more information is being disclosed than ever before.

But more disclosure than ever before still means not as much disclosure as could be happening.

“Broadly, this is one of those trees falling in the forest. There is no question that there is going to be work that doesn’t get done,” Davis said.

One of the hardest-hit areas may be preemptive disclosure at the state level, he said. While the Obama administration is pushing for the posting of government information online so it is accessible without a citizen having to request it, those same efforts may fall short at the state level.

“State government was really feeling that too, but there are just going to be a number of things they say ‘we’d do it if we could’” to, Davis said. Searching for those records, or virtually anything else, takes money.