Forecasting Freedom of Information in the US

16 March 2017

Two excerpts from a report by David Cuillier of the University of Arizona School of Journalism. Based in part on a survey, the report was commissioned by the John S. and James L. Knight Foundation. Cuiller also wrote an op-ed about the study. Below are the instruction and the conclusions sections. 

INTRODUCTION

People must have access to reliable public information to make informed decisions and hold their elected officials accountable. Without transparent government at all levels—local, state and federal—representative democracy is threatened. For a generation, presidents of both parties have in different ways tightened controls on government information. “The natural progress of things,” Thomas Jefferson once wrote, “is for liberty to yield, and government to gain ground.”1

The John S. and James L. Knight Foundation commissioned this study to better understand the landscape involving public access to government records by gathering information and insights from 336 freedom of information experts—journalists, advocates, record custodians, technology companies, scholars and others. In all, from December 2016 through January 2017, 108 experts were interviewed and 228 surveyed online. The study is not representative of journalists or society as a whole, but rather a cross section of those who deal with public record laws routinely. They are the active members, and in some cases the leaders, of America’s freedom of information community.

Freedom of information is not decided only in Washington, D.C. All levels of government are involved, bringing into view a diversity of government officials. Our objective was to canvass experts to identify barriers to information access and possible solutions, looking broadly at the law, public education, networking and new technology.

We found dissatisfaction, uncertainty and worry.

Key points:

  1. MANY EXPERTS SAY ACCESS IS WORSE TODAY COMPARED WITH FOUR YEARS AGO: About half of the 228 experts surveyed online reported that access to state and local records has gotten worse during the past four years (41 percent said it stayed the same, and 13 percent said it has gotten better2 ), and 41 percent said access to federal records has worsened. “What I hear from reporters in Washington and my students is that exemptions are being used in way too many cases and delays are still very long,” said Leonard Downie, former Washington Post executive editor and current Weil Family Professor of Journalism at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication. “I hope the door doesn’t get shut tighter.”
  1. NEARLY 4 IN 10 SEE A RISE IN DENIALS: Though most respondents (57 percent) said denials have stayed the same during the past four years, 38 percent said they have been denied records at any level of government more frequently, and only 6 percent said denials have decreased. Rising knightfoundation.org | @knightfdn FORECASTING FREEDOM OF INFORMATION | Introduction 4 / 52 denials are particularly acute at the local level, where news organizations have cut some 20,000 journalists since the 2007-09 recession. Timothy Bolger, managing editor of the independent online Long Island Press, said he did not realize the extent of the problem until he conducted an FOI audit of nearly 200 municipalities on Long Island, N.Y., in 2016. “This past year has really opened my eyes. There’s a good number of agencies that just don’t follow the law. I hadn’t paid that much attention before, but I didn’t realize how much of it was an epidemic.”3
  1. OVERWHELMINGLY, EXPERTS PREDICTED THAT ACCESS WILL GET WORSE: Nearly 9 out of 10 predicted that access to government will worsen because of the new presidential administration. “I think it’s going to be a backyard brawl,” said Ted Bridis, investigations editor for The Associated Press in Washington, D.C. Over the past several weeks, nonprofit organizations scrambled to save data purged from federal websites and listed the many restrictions placed on communications with the public.

This report lays out problems with freedom of information and synthesizes solutions aimed at making freedom of information laws work as their creators intended—as an open, honest way for the public to know what its government is doing.

CONCLUSION

This study finds an earnest group, which includes government officials in the access community, focused on what it sees as an opportunity to preserve and even expand freedom of information in cities, states and the nation.

If the open government community was hoping for something to rally around, this report signals its arrival. Nearly 9 of 10 experts who contributed to this study—be they journalists, librarians, nonprofit groups or government employees—fear the new administration will worsen freedom of information and government transparency.

“It’s obvious this administration is going to be even less forthcoming than the last one, which is saying something,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “Transparency will become more of a battleground.”

For news people, the issue at stake is what Nieman Reports calls “the most powerful and fundamental tool of American journalism.” Freedom of information is, in fact, the foundation upon which every profession is built. Without open government, there are no journalists, librarians, nonprofits or government employees, not as we know them today—just a mass of people, as one put it, “wandering in the dark.”

A freedom of information renaissance. It sounds somehow right, at this moment in history, when we are focusing on the fundamental elements of the American democracy. New projects and partnerships, new money, technologies and momentum toward once again being a global leader in open government: Is this possible? This is a community that can react well to crisis. Cold War secrecy led to federal FOIA. Watergate aided passage of new state public record laws. The 9/11 attacks and Iraq War secrecy preceded the expansion of state FOI coalitions, Sunshine Week and significant endowment campaigns for access organizations.

Part of what has brought us to today, a significant number of this study’s participants agree, is a steady decline in transparency and an increase in public records request denials over the past four years. Respondents outlined problems in delays, redactions, denials and technological barriers. Yet the Obama years were a study in action and reaction. Not all the news was bad. “There is an awful lot of information disclosed under FOIA,” said Harry Hammitt, publisher of Access Reports. “We could be much worse off.”

To avoid that fate, the FOI community watches what many others do not—the flow of the public facts. Of its many ideas, the author believes a consensus has formed around four priorities:

  1. Band together. While journalism groups have started to work together, at times with civil society groups, they need to further break down walls, setting aside competitive self-interests, suspicion, ego and structural impediments. To raise more money, to strengthen the groups, they must divide the job at hand and work together.
  1. Take the fight to the states. A state litigation network with one or more hubs could connect requesters with lawyers and university law clinics, coordinate a campaign to get attorney fee provisions added to state laws, coordinate researchers to answer key FOI questions, and serve as a quick-response center for FOI emergencies nationwide.
  1. Bolster education and advocacy. A Sunshine Coalition could work to create an effective ad campaign for the public, including expanding Sunshine Week to a year-round effort, integrate FOI into schools, enhance training for journalists and record custodians, and empower a new cadre of FOI-friendly politicians.
  1. Develop digital technology. Technology companies could work with MuckRock, Reporters Committee and others to bring FOI organizations into the digital age and to create new tools to organize supporters, raise money, share information and in other ways that will enhance government transparency, as well as aid government agencies in disseminating data online proactively.

If Thomas Jefferson is right, the fight to free public information must happen regardless of which parties are governing, and it is a fight that is never fully won. Still, without teamwork, training, technology and support of the people— and tenacity—progress can be elusive. So the final word goes to David Cay Johnston, a Pulitzer Prize-winning reporter who launched DCReport.org to watchdog the new administration. “The republic has survived a lot of things,” he said. “We survived a Civil War. The Constitution is durable. The worst thing to do is be fearful. Don’t lose heart.

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