From Oct. 18 to 20, 2022, the National Freedom of Information Coalition (NFOIC) presented the 17th annual National FOI Summit. This virtual summit was for everyone interested in freedom of information (FOI) and access to government records. Panelists included journalists, attorneys, academics, government officials, and citizens.
NFOIC is an alliance of state FOI advocacy groups. Its members share resources to protect the right to public records. NFOIC holds FOI Bootcamps for journalists, tracks public records legislation, runs the Knight FOI Fund for FOI litigation, and recognizes the best FOI research. According to NFOIC’s About page, “Simply put: We protect your right to open government.”
Over 3 days, panels of FOI experts talked about new challenges, old barriers, success stories, and a new direction for public records requests.
SOLUTIONS FOR DOXXING AND DISAPPEARING MESSAGING APPS
Wikipedia’s definition of doxxing is “the act of publicly providing personally identifiable information about an individual or organization, usually via the Internet.” Governments collect citizens’ personally identifiable information (PII) in the course of regular business like registering someone to vote. Governments also have PII of their elected officials and employees. Since some PII is obtainable by FOI requests, unscrupulous doxxers with a vendetta post it online to harass government officials and even journalists. In the Much Ado About Doxxing panel, participants discussed how to prevent doxxing without restricting access to public information. Courtney Radsch, a postdoctoral research fellow at the UCLA Institute for Technology, Law & Policy, stressed urgency in a world of artificial intelligence: “PII is sitting in systems that learn things. We don’t know how PII will be used in predictive settings.”
Sarah Brewerton-Palmer, an associate attorney at Caplan Cobb, said new legislation is giving greater protections to public officials’ PII. After a judge was doxxed and her son shot and killed, New Jersey’s Daniel’s Law was passed to restrict access to PII of judges, law enforcement officers, prosecutors, and their families. Panelists were concerned that Daniel’s Law and other new anti-doxxing legislation could make it easier for governments to deny journalists’ FOI requests. Also, such legislation doesn’t extend protection to rank-and-file government employees. The panel extolled comprehensive data protection laws for everyone’s PII, such as the California Consumer Privacy Act and Europe’s General Data Protection Regulation, which applies to government-held PII as well as PII in the private sector.
The panel Disappearing Messaging Apps: The Impact on Public Record Laws, Record Management, and Policy discussed another technological development: secure messaging apps that delete public records before anyone asks for them. FOI laws are futile if sought-after public records no longer exist. Panelist Mark Pedroli, an attorney at Pedroli Law, filed an FOI lawsuit against the governor of Missouri over use of Confide, an app that deletes messages immediately after reading. Edward Papenfuse, retired Maryland State Archivist, explained that state public records laws require records retention and that historically important governor’s records often require permanent archiving. Secure messaging apps violate retention requirements. “In a democracy, it’s an obligation to have strong archival laws and preservation of government information,” said Papenfuse.
Steven Johnson from the Michigan House of Representatives discussed new legislation that prohibits Michigan state government from using software that automatically deletes public records. The hope is that other states follow Michigan’s lead. According to Pedroli, when stymied by deleted messages, journalists can make FOI requests for metadata. Email sent-and-received logs, audit logs showing who viewed and edited records, and chatroom structures and memberships will give meaningful clues to tech-savvy journalists.
OPENING UP STATE LEGISLATURES AND NIL
In Legislative Transparency: The Written and Unwritten Rules That Conspire to Keep the Public in the Dark, panelists discussed access to state legislatures, which can be tough. In Oklahoma and Massachusetts, legislative records are exempt from state public records laws. FOI requests for legislative records can be denied. Many states deny access to categories of legislative records like amendments, committee records, and legislators’ votes. Other states make all legislative records public. FOI requesters can use NFOIC’s state law resources to navigate this patchwork.
The COVID-19 pandemic encouraged many states to let citizens observe legislatures remotely. Many now stream live video and post recordings online. Gail Symons, blogger of Civics307, said that in Wyoming, every legislative session and committee meeting is posted on YouTube. While the North Carolina legislature posts audio only of its House chamber, Rob Schofield, director of NC Policy Watch, hoped for live streaming of all hearings and House, Senate, and committee meetings.
Margaret Kwoka, Lawrence Herman Professor in Law at Ohio State University’s Moritz College of Law and author of Saving the Freedom of Information Act, echoed Schofield and called for more proactive online disclosure of all types of records. Kwoka estimated that journalists made only 2.6% of FOI requests. The remainder were from citizens needing easily retrievable records. Governments could automate easy requests and reallocate resources to complex requests from journalists.
Want a copy of University of Alabama star quarterback Bryce Young’s name, image, and likeness (NIL) contract with Dr. Pepper after watching his funny commercial? No dice. Although state FOI laws apply to public universities, schools will not disclose students’ NIL records so long as the possibility exists that NIL records fall under the federal Family Educational Rights and Privacy Act (FERPA), agreed panelists on the Game Changers: How to Know Who’s Paying for College Athletes’ Names, Images and Likeness panel. FERPA makes all student records confidential. Furthermore, 29 states passed laws governing NIL, and most restrict access or say nothing, said Frank LoMonte, counsel at CNN. FOI lawsuits had the same result. Courts in Louisiana and Georgia have decided that NIL records are confidential under FERPA. Courts have not decided whether records of collectives—which are private nonprofit organizations that help student athletes get NIL deals—are subject to FOI, so journalists could look there.
Still, the panel said, individual students’ NIL contracts are not why we need transparency. It’s needed to hold public universities accountable. Journalists want to investigate universities’ compliance with state NIL laws, conflicts of interest between universities and businesses, fair market value of students’ public image, and NIL money by gender, race, and sport. Panelists suggested the release of aggregated and anonymized data on the flow of money and keeping individual students’ contracts confidential.
BEST PRACTICES FOR GETTING THOSE RECORDS
In the FOI Successes: Harnessing the Power of Information panel, Nate Jones, FOIA director for The Washington Post, advised journalists and researchers to be persistent with FOI requests: “Public records favor the hungry.” In records requests, include details such as record types and formats, custodians, and time frame, and don’t be afraid to borrow language from others’ successful requests.
Backup sources are important too. In an investigation of problems with privatized military housing, Michael Pell, a reporter for Reuters, interviewed private contractors and attorneys who gave him records. With information gleaned from those records, he made successful FOI requests to the government. Researchers can turn to state government agencies that possess sought-after federal records because they often respond more quickly. State public records laws may allow the release of information that’s otherwise confidential under federal FOI law.
Michael Linhorst, a media attorney, moderated Transparency’s Teeth: The Best Approaches to Enforcing FOI Laws, a panel about fighting protracted delays and complete denials. At the federal level, 20% of complex records requests took more than 100 days to answer, and the backlog was 153,000 requests at the end of 2021, said Adam A. Marshall, senior staff attorney at the Reporters Committee for Freedom of the Press. Journalists on deadlines especially feel the pain.
What can frustrated requesters do about delays other than file a costly and risky lawsuit? They can appeal to the Office of Government Information Services (OGIS), whose mission is to assist people with FOI requests. The federal FOIA Advisory Committee’s Reimagining OGIS Working Group made recommendations for strengthening OGIS. A stronger OGIS would have a bigger budget and report directly to the Archivist of the United States. Its decisions would be binding, and federal courts would give extra weight to OGIS’s decisions in FOI lawsuits.
A CALL FOR NEWS STARTUPS
Since the Watergate scandal, journalists’ FOI requests have sought to expose big government corruption. The panelists in The Public’s Right to Know: Does Accurate Information Reduce Political Polarization? said that this is important work, but they encouraged journalists to help smaller communities, such as small towns and suburbs, by asking their governments for actionable, empirical data and analyzing it to tell the stories of those communities.
Amelia Robinson, opinion and community engagement editor for The Columbus Dispatch, recommended that journalists let community conversations drive FOI requests for data: “We are not experts on a community. The community is the expert on itself. Rely on the community to tell you about itself.” Panelists called for community-based news startups for reportage of data-driven stories that are too local for large media organizations.
It’s tempting to consider FOI access as an unchanging right. After all, freedom of information has been the law since the 1960s. At the 2022 National FOI Summit, panelists explained social, legal, and technological developments that enhance and hamper that right. It’s a comfort that NFOIC seeks balanced solutions for doxxing, disappearing messaging apps, and whatever comes next. NFOIC tentatively plans an in-person summit in Louisville, Kentucky, in 2023. Plan to be there. With NFOIC on guard, the right of access to public records feels secure.