As a nation, we have celebrated the week of James Madison’s birthday (March 16) as Sunshine Week for 15 years. Throughout the week, news outlets and open government advocacy groups issue articles and reports on the public’s right to know what its government is doing. Meetings scheduled during Sunshine Week allow journalists, educators, librarians, civic groups, and government officials to debate and extol open government and freedom of information.
Why James Madison, you ask? Our fourth president, known as the Father of the Constitution, was a fierce advocate of open government. Per President Ronald Reagan’s Freedom of Information Day proclamation in 1986, Madison “understood the value of information in a democratic society, as well as the importance of its free and open dissemination. He believed that through the interaction of the Government and its citizens, facilitated by a free press and open access to information, the Government could be most responsive to the people it serves.”
In step with the advised COVID-19 precautions, some groups shifted Sunshine Week celebrations to virtual events (e.g., webinars); others promised that planned in-person meetings would be rescheduled for a later date. As many of the resource sites were collected in preparation for the annual weeklong initiative, it’s worth mentioning them. So here goes.
Open Data Day
Organizations kicked off Sunshine Week with Open Data Day on March 7. For the past 10 years, the world has celebrated Open Data Day on the first Saturday in March by hosting local events to showcase the benefits of open data. These events are designed to encourage governments and businesses to adopt open data policies that permit anyone and everyone to use (and reuse) their data. More than 306 scheduled events can be viewed on the opendataday.org map, but it’s difficult to tell how many of these were actually held.
The open data community resource page on the site (opendataday.org/#resources)—designed for those planning Open Data Day events—is the perfect place to locate collections of open datasets and is particularly helpful for environmental data discovery, tracking public money expenditures, open mapping, and exploring data for development. While readers may be familiar with data.world, many governments and organizations use the CKAN data management platform to share resources and case studies. If you need help finding data or tools, DataHub is free.
Sunshine Week Resources
The calendar of events for this year’s Sunshine Week was been a bit thin, as news editors and reporters were preoccupied with other things, and public libraries—the venue for many local events—were not necessarily available. You can explore the list of Sunshine Week participants at sunshineweek.org/sw-participants.
The Sunshine Week toolkit offers links to stories, photos, and graphics that are freely available for publication. A link to MuckRock’s Editorial Package from the toolkit includes an article covering examples of public records reporting, a sidebar of helpful tips for readers who are thinking of filing a request for records, and a brief guide to accessing state-level data that could be useful in Sunshine Week reporting. FOI in Action provides links to online resources for easily filing and tracking Freedom of Information Act (FOIA) requests. The Schools & Colleges webpage has lesson plans and activities. In addition, a vault of archived materials from prior years’ celebrations is available for reference. Use it to explore ideas for Sunshine Week activities as you consider how you will participate in 2021.
Journalists and Their Organizations
It’s a challenging time for local news organizations. In addition to their active coverage of the pandemic, newspapers around the country took time to address the need for transparency in government and limiting unnecessary government secrecy. The Whistleblower Project, a collaboration between the Society of Professional Journalists (SPJ) and the Government Accountability Project, is worthy of note.
Journalists have been actively building Sunshine Week programming for their fellow reporters and news agencies, as well as for high schools and colleges. SPJ has a site devoted to Sunshine Week that provides FOI program ideas for society chapters around the country, links to FOI resources that are dedicated to college students/campuses, ideas for newsroom activities, assistance for writing about FOI that includes comparing laws from your state to those of others, and a link to FOI resources. Curriculum ideas include suggesting that students request one public record. They would have to research the law, submit a records request, follow the request through, and summarize their experience of the process.
Your Federal Government in (In)action
A U.S. Government Accountability Office (GAO) report released during Sunshine Week, “Freedom of Information Act: Federal Agencies’ Recent Implementation Efforts,” indicates that the number of FOIA requests of federal agencies has increased by more than 30% from FY2012 to FY2018 and that “the backlog of requests—that is, the number of requests or administrative appeals that are pending beyond FOIA’s required time period for a response at the end of the FY—increased over 80 percent.” With FOIA staff increasing by only 21% during that time period, it would appear that staffers would be experiencing work overload. However, agencies also “reported that resources spent on FOIA implementation increased from FY 2012 to 2018.” Notably, the Department of Homeland Security (DHS) used Sunshine Week to release its 2020–2023 FOIA backlog reduction plan. Subtitled “A Business Modernization Roadmap,” the document states that DHS commits to, among other improvements, reducing FOIA backlogs, responding to FOIA requests in a consistent and timely manner, and reducing the age of open requests through upgraded FOIA IT infrastructure and investment in frontline employees.
The National Archives and Records Administration’s (NARA) March 16 Sunshine Week program, including the panel discussion “The Transparency Landscape,” was canceled, but NARA’s Office of Government Information Services (OGIS) used Sunshine Week as an opportunity to release its annual report for FY2019. The report indicates that OGIS reduced its backlog of FOIA requests by 50%, handling 4,649 requests for FOIA assistance from the public and federal agencies in FY2019.
During the most recent quarterly meeting of the FOIA Advisory Committee (March 5), OGIS compliance team lead Kirsten B. Mitchell summarized how agencies measure their records management and FOIA request fulfillment in the presentation “Assessing Freedom of Information Act Compliance Through the 2018 Records Management Self-Assessment.” This was followed by recommendations to the committee from the FOIA subcommittees on Time/Volume, Records Management, and Vision. One month earlier (February 14), the Chief FOIA Officers (CFO) Council’s Technology Committee released a report discussing FOIA-related IT best practices and recommendations.
The Department of Justice (DOJ) released its “2019 Litigation and Compliance Report,” summarizing its efforts to encourage agency compliance with FOIA. On March 11, Syracuse University-based Transactional Records Access Clearinghouse (TRAC) sued the DOJ’s Office of Information Policy (OIP) for withholding information regarding the receipt and processing of FOIA requests. OIP claims “that it is under no legal obligation to search its own database. …” TRAC asserts that OIP’s handling of FOIA requests flies in the face of the office’s mission to “encourage and oversee agency compliance” with FOIA.
During a DOJ Sunshine Week event, Claire McCusker Murray, principal deputy associate attorney general, pointed to the “fact” that, these days, FOIA applicants are quicker to litigate, thus straining the workloads of agency FOIA staffers and delaying their ability to process FOIA requests. Based on a study it released in 2019, TRAC found that to be incorrect, with requesters “waiting on average six months—a full month longer than they had five years ago—before filing a FOIA lawsuit. … Additionally, [TRAC found] that the increase in FOIA lawsuits … was due to FOIA officials’ failure to respond to requests in a timely manner as required by law.”
The Americans for Prosperity Foundation celebrated Sunshine Week by issuing an investigation of federal agency instant messaging (IM) records management policies and practices. “Gone in an Instant: How Instant Messaging Threatens the Freedom of Information Act” notes, “Thirteen of the sixteen agencies that produced their policies for the administration of IM in response to our FOIA request do not preserve instant messages as a matter of policy—a violation of federal law and NARA guidance.” The foundation recommends that agencies “embrace IM’s increasing integration and use in the workplace—providing employees with an official IM option for work that is equipped with the necessary features to comply with legal requirements.”
The National Security Archive at George Washington University released a Sunshine Week audit indicating that 75% of the current president’s decisions have been bad for openness, including classifying coronavirus talks, hiding White House visitor logs, and keeping his tax returns secret. There have been some good transparency decisions made by this administration, however, including work on providing greater transparency about hospital and prescription drug prices. The audit underscores the need to strengthen the Presidential Records Act, which requires the president to make and preserve records, just as federal agencies are required to do by the Federal Records Act.
The Novel Coronavirus Takes Its Toll on FOIA
COVID-19 is having an effect on FOIA requests. On its eFOIPA portal, the Federal Bureau of Investigation (FBI) says, “Due to the COVID-19 pandemic, the FBI has adjusted its normal operations and is unable to timely process Freedom of Information/Privacy Act (FOIPA) requests received via the eFOIPA portal or by standard mail. Given limited staffing to ensure safety, you can expect delays in both the acknowledgement and substantive response to your FOIPA request.”
In response to her effort to determine the impact the pandemic is having on agencies’ FOIA operations, Emma Best of MuckRock received a message from NARA that it had located one two-page document that would answer her question, but it opted to use the FOIA exemption (b)(5) of legally “privileged” communications in the Executive Branch as its (non)response.
Government Participation in Sunshine Week Events
One of the Sunshine Week events scheduled for Washington, D.C., that had to be canceled this year was to take place at the U.S. Census Bureau and feature Nancy Potok, former U.S. Chief Statistician. The timing of this cancellation is unfortunate, as census forms have just been released for completion by every citizen in the U.S. Oh, the questions that could have been asked of Potok!
The Data Coalition hosted a webinar on March 16, Innovating With Open Government Data, that was originally scheduled as a panel discussion for South by Southwest (SXSW). Panelists representing the Data Coalition, the Department of the Treasury, the U.S. Census Bureau, and the National Oceanic and Atmospheric Administration (NOAA) discussed how their agencies are using open data to promote transparency and accountability in government as they solve issues facing the public. Rebecca Hutchinson, Big Data lead at the U.S. Census Bureau, said, “Open data can enhance our ability to provide our data users with what they need to gauge the health of the economy, get a more accurate count of regional demographics, and ultimately provide substantial benefits to the American public.” Neil Jacobs, the acting administrator at NOAA, reminded participants that NOAA makes its “trove of data … publicly available through several ways, including commercial cloud service providers who simplify and accelerate accessibility.”
Open The Government hosted a “state of the union” virtual conference in honor of Sunshine Week, featuring experts and advocates who held a discussion about openness in government, open government data, government modernization, transparency at the DOJ’s Office of Legal Counsel, whistleblowers, press freedom, and democracy in the U.S. today. Much of the initial conversation concerned openness about COVID-19, but the video is worth a few minutes of your time.
Each year, the National Freedom of Information Coalition (NFOIC) and its regional affiliates celebrate Sunshine Week by recognizing achievements and setbacks in ensuring open and accessible public institutions. The organization holds government agencies accountable for violations of transparency laws and calls out those localities obstructing access to public records. NFOIC’s latest contribution is a new bill-tracking tool that allows the public to follow transparency-related bills that are introduced across the country.
On March 16, NFOIC released its biennial Open Government Survey showing “that members of the public outnumbered newspapers as the larger client group for attorneys pursuing open government cases. … Lack of funds and resources were cited as the number one reason for declining media interest and involvement in litigation, followed by a decline in the type of reporting that requires assertive legal action to gain access to information.”
@SunshineWeek and #SunshineChat2020
The Twitterverse was abuzz during Sunshine Week as individuals and organizations used @SunshineWeek to tag news, opinions, and event roundups. Participants of the exquisitely moderated #SunshineChat2020 emphasized the importance of government transparency and accountability to a functioning democracy. Among the most active participants in the chat, the Electronic Privacy Information Center (EPIC; @EPICprivacy), published its FOIA Gallery 2020 of the organization’s most significant open government cases this past year.
This year, ALA did not get a chance to give out its James Madison Award celebrating an individual or group that has brought awareness to public access to government information and the public’s right to know. However, the Electronic Frontier Foundation (EFF) continued its tradition of celebrating Sunshine Week with the Foilies, a list of government officials and corporations that impede the public’s right to know. This year’s winners can be found at eff.org/deeplinks/2020/03/foilies-2020; laughter is encouraged.