Sunshine Week (@SunshineWeek and #SunshineWeek) highlights our need to rebuild trust in public institutions. To accomplish this, we must promote access to public records, encourage lawmakers to be more transparent, and hold government accountable. At the heart of democracy is the free flow of information.
Officially launched in 2005 by the American Society of News Editors—now the News Leaders Association—Sunshine Week has grown into an enduring initiative to promote the principles of open government and freedom of information. For Sunshine Week 2022, held March 13–19, the association website listed many events, sponsored by different types of organizations across the U.S., such as the League of Women Voters in Kansas City and the Nevada Open Government Coalition. The topics covered during these meetings were equally diverse, including how to use the California Public Records Act (CPRA) to access public records, barriers to transparency, how access to information and accountability can be strengthened, and ways to get involved in legislative advocacy. Additional examples include:
- The National Freedom of Information Coalition and Uncovered: A Cold Case Platform examined freedom of information “through the lens of technology—how technological solutions can help us, or in some cases hinder us, as we work to understand the world around us and to ensure government transparency.”
- In Navigating Roadblocks to Police and Government Accountability, Point Park University’s Center for Media Innovation, the Pittsburgh Institute for Nonprofit Journalism, and the Press Club of Western Pennsylvania hosted a discussion on right-to-know laws by addressing “successes and roadblocks in obtaining public records that reveal the realities of correction facilities, police departments and other institutions.”
Some events addressed specific challenges facing their communities. For example:
- The DC Open Government Coalition held an event that was focused on transparency and accountability issues related to the Washington, D.C., Metropolitan Police Department (MPD). Discussions included the state of access to MPD information, such as body-worn camera video, and officer discipline proceedings.
- At an event held by the Society of Professional Journalists and the National Press Club Journalism Institute, expert panelists explored government or school district restrictions on press coverage of public schools and offered strategies and tools to overcome these barriers.
Once again, the pandemic hampered some groups’ ability to gather in person to celebrate Sunshine Week. Fortunately, the world has grown accustomed to using technology to meet virtually. The Project on Government Oversight (POGO) hosted an innovative effort on Twitter. Using the hashtag #SunshineWeekWithPOGO, people were able to learn about the Freedom of Information Act (FOIA), whistleblowers, and how transparency brings about more accountability in government. You can test your knowledge of FOIA by taking the POGO quiz.
Open Data Day
Open Data Day is celebrated in advance of Sunshine Week. Around the world, on March 5, groups hosted community events to demonstrate open data’s benefits and to encourage the adoption of open data policies at all levels of government, business, and civil society. There were 153 events (versus 327 in 2021) registered on the Open Data Day site illustrating diverse approaches to involve the “data curious” in 38 countries. Some events held in North America included the following:
- Los Angeles mayor Eric Garcetti’s Data Team hosted a competition among city departments to publish as many datasets as they could, clean up metadata, retire old datasets, and improve the overall quality of their data. The competition was judged by community-based organizations. Winners, along with their datasets, are available at lacity.org/stories/s/t6bs-qf7p.
- For Chattanooga, Tenn., a single day was not enough. Organizers crafted a weeklong celebration of activities targeting the media, the community, and not-for-profit organizations. There was a mix of in-person and virtual events throughout the week leading up to Open Data Day, with presentations and opportunities to suggest data that would be useful for the community, culminating with the launch of Open Data Guides.
- This year’s Open Data Day in Winnipeg, Canada, featured a full-day hackathon with the theme of Geospatial Analysis, which was attended by 87 people.
IFLA marked Open Data Day 2022 by talking to the lead contributors of the three countries with the highest number of data points supplied to the Library Map of the World: Latvia, Sweden, and Ukraine.
How the U.S. Government Celebrated Sunshine Week
This year’s National Archives and Records Administration (NARA) Sunshine Week program was a conversation between Librarian of Congress Carla Hayden and the Archivist of the United States David Ferriero, who will be retiring in April 2022 after 12 years in the position. David Rubenstein moderated the discussion, and virtual participants shared their thoughts on open government and transparency in a series of short videos. Sen. Patrick Leahy closed the session via recorded remarks, proclaiming that being a part of the “community of transparency and open government advocates has been one of the most important and gratifying aspects” of his Senate career. Transparency “is a fundamental pillar of a democracy. It’s the American people’s right to know what their government is doing.”
On March 15, Attorney General Merrick Garland issued a Memorandum for Executive Departments and Agencies on Freedom of Information Act guidelines. It aims “strengthen the federal government’s commitments to transparency in government operations and the fair and effective administration of FOIA.” The new guidelines “emphasize that the proactive disclosure of information is fundamental to the faithful application of the FOIA and note the Justice Department’s efforts to encourage proactive agency disclosures, including by providing more specific criteria regarding how relevant metrics should be reported in agency Annual FOIA Reports. …”
Freedom of Information Day
March 16 is the birthdate of the fourth U.S. president, James Madison, known as the Father of the Constitution and a fearsome advocate for openness in government, and is also Freedom of Information Day. This year, the Advisory Committee on Transparency chose to celebrate by recognizing “centuries of sunshine laws that established and codified the public’s rights to know and access knowledge, forming the foundation of today’s open government policies, programs, and proactive disclosures across all three branches of the U.S. government.” The event featured live remarks from Rep. Mike Quigley, founder of the Congressional Transparency Caucus, and recorded remarks from Rep. Derek Kilmer, chairperson of the House Select Committee on the Modernization of Congress. Nick Hart, president of the Data Foundation, talked about how Sunshine Laws are modernized through the implementation of the DATA (Digital Accountability and Transparency) Act of 2014, pointing people to spending datasets available on USAspending.gov.
Panelists examining the status of sunshine laws, the importance of whistleblower protection, and the impact of the pandemic on public access and government transparency were Shanna Devine, director of the House Office of Whistleblower Ombuds; Kate Oh, attorney and senior policy counsel at the ACLU; and Danielle Brian, executive director of POGO. Alex Howard, co-director of the Advisory Committee on Transparency and director of the Digital Democracy Project, moderated. A recording of the session is available at transparencycaucus.info or via YouTube.
Openness and Transparency in Government Beyond Sunshine Week
The March 10 meeting of the Office of Government Information Services’ (OGIS) FOIA Advisory Committee recommended that the Office Information Policy (OIP) issue guidance to government agencies to use the internationally recognized nomenclature of “neither confirm nor deny” (NCND) to refer to the legalistic terminology currently employed, the “Glomar response.” Further, the Classification Subcommittee recommended that government agencies post information on their website regarding circumstances that will likely result in an NCND response, and where possible, recommendations on how to avoid such a response.
The Technology Subcommittee recommended that the OIP encourage agencies to include information on their FOIA websites beyond what is required by law, including a link to agency schedules, a link to a description of records maintained by the agency, and an explanation of FOIA’s nine exemptions. Additional recommendations included establishing an executive branch working group to create best practices for the release of records in native format, including metadata, and the implementation of recommendations made by the FOIA Advisory Committee during the 2016–2018 term that have not been put in place, including 508 compliance and proactive publication of FOIA logs.
The meeting also went over the results of the Public Records Requester Survey of MuckRock users. Members of several email lists indicated a level of frustration by respondents who are unhappy with the request experience, primarily due to delays in the process, overuse of exemptions, and “no responsive records.” Three-quarters of the requesters support eliminating fees, 90% think Congress should be subject to FOIA, and 85% think the Judiciary should as well.
Rep. Steny Hoyer and Rep. Kevin McCarthy are co-hosting the 4th Official Congressional Hackathon, an in-person meeting at the Capitol on April 6. The event brings together members of Congress, congressional staff, open government and transparency advocates, and civic hackers for discussions on data transparency, constituent services, public correspondence, social media, committee hearings, and the legislative process. Interested parties can register at eventbrite.com/e/congressional-hackathon-40-registration-294228785217.
Not All Is Sunshine, However
As First Branch Forecast reminds us:
- “Congress still has not enacted the Access to Congressionally Mandated Reports Act (2838), which would require GPO to create and maintain a public online repository for all federally mandated reports.”
- Attorney General Merrick Garland has not delivered on his confirmation hearings’ “promise to implement the FOIA in a manner that emphasizes openness and transparency.” A Feb. 23 bipartisan congressional letter called for immediate action.
- The public still doesn’t know about the contents and intents behind the Department of Justice’s Office of Legal Counsel (OLC), as the OLC determines which of its legal opinions it will disclose.
- The proposed Open Courts Act (S. 2614) would eliminate the paywall that restricts public access to federal court records, making PACER free. The bill made it out of the Committee on the Judiciary at the end of 2021, but no further action has been taken.
- The Senate and the House of Representatives have passed legislation regarding courthouse ethics and transparency (S. 3059 and H.R. 5720), but have not enacted a law.
- “The Capitol Police still have not implemented a FOIA-like process.”
- There are Congressional Research Service reports that still aren’t publicly available online.
This Year’s Foilies
Every year since 2015, the Electronic Frontier Foundation (EFF) and MuckRock award Foilies to government agencies that violate the spirit of FOIA or otherwise impede public access to information. Among this year’s winners is the U.S. Food and Drug Administration. While the government authorized use of the COVID-19 vaccine in record time, the agency has not been responsive of FOIA requests for data about the authorization process.
This year’s Highest Fee Estimate Award was given to the Pasco County Sheriff’s Office. The EFF filed a public records request for contacts involved in an intelligence-led policing (ILP) program. “Claiming there was no way at all to clarify or narrow the broad request, [the sheriff’s office] projected that it would take 82,738 hours to review the 4,964,278 responsive emails—generating a cost of $1.158 million for the public records requester,” EFF notes. Accounts of the other FOIA missteps that were awarded a Foilie can be found at eff.org/deeplinks/2022/03/foilies-2022.
The Bureau of Governmental Research (BGR) says in a March 2022 report that citizen participation in livestreamed government meetings increased during the pandemic; archives of online video recordings provided access for those who wished to watch and listen but found meeting times inconvenient. BGR notes that even when these online options are no longer required due to health reasons, they should continue to be available, encouraging greater public participation in government.
As President Joe Biden’s Executive Order on Ensuring Responsible Development of Digital Assets reminds us, transparency does not come without risks for users and the environment. It is the responsibility of government agencies to mitigate these risks, “prioritizing privacy, security, combating illicit exploitation, and reducing negative climate impacts.”
One model to avoid would be that of Russia and its latest assault on truth in government information. Censorship of media and curtailing free expression by the populace is certainly not in the spirit of Sunshine Week. #StandWithUkraine