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Tuesday, October 27, 2015
It's (Not) Always Sunny in Paradise
What happened to freedom of information in the U.S. territories?
By Ashley Mayrianne Jones
Malia Zimmerman boarded the plane to American Samoa knowing this island visit would be anything but a vacation. The Hawaii-based reporter had been recruited by a former head of the Occupational Safety and Health Administration for a life-threatening mission: investigate slave labor at a garment factory in an area plagued by government corruption, police misconduct and federal government neglect. Her story, published in 2001 by the Washington Times, touched upon freedom of information issues still unresolved today.
The U.S. territories — American Samoa, Puerto Rico, the Virgin Islands, Guam and the Northern Marianas — boast a wealth of stories and secrets; if only they were easier to investigate. Between corrupt local governments, environmental threats of decreasing biodiversity and rising sea levels, and issues with immigration from neighboring islands, there is potential for reporting beyond tropical storms or the tourism industry. But weak (or non-existent) public records laws at the territorial-level, language barriers and limited newsroom resources can prevent stories from being told.
Over 4.4 million people (1 percent of the U.S. population, according to the 2014 U.S. Census) inhabit territories, paying federal income taxes, serving in the military and following U.S. laws despite lacking presidential voting rights or a voting representative in Congress. Overseen by the Department of the Interior, the territories receive grants from the Office of Insular Affairs and are regulated by federal agencies on the island. There’s not supposed to be a difference between petitioning the federal government for documents under FOIA and getting information from territorial governments (the territories fall into one of the regional divisions along with the states). However, in practice there’s not much figurative sunshine to celebrate in an actually sunny place.
The figurative sun doesn’t always shine in American Samoa, a territory in the South Pacific Ocean, where residents lack any local freedom of information laws. Samoa is the only territory that does not automatically grant U.S. citizenship; residents are “nationals” instead. U.S. federal laws apply, but that doesn’t mean the local government complies, says Zimmerman, and the feds don’t seem to notice.
Zimmerman had been advised by her contact that if anyone found out she was there to report on the garment factory, she would be in danger. The lieutenant governor of American Samoa had business ties to the factory she was investigating, and the police received bribes from the owner, ignoring complaints of physical and sexual abuse from his workers.
Locals also didn’t trust outside media, especially those with the intention of reporting stories that can shake up the community. Zimmerman, who spent a week on the island, says volunteering at a local church helped conceal her identity and get her closer to the factory.
Zimmerman found that the garment factory had been inspected by OSHA over the two years before her article ran and was cited 17 times, accruing over $17,000 in penalties. Workers had been beaten, been sexually abused and gone “missing” under the owner’s management. Yet the federal reports and documents leaked over the two-year span were not enough to get the local or federal governments to pay attention, Zimmerman wrote. The case ended up in the High Court of American Samoa, with the company reaching a settlement with the workers under pressure from the U.S. Department of Labor.
The story may have gone unreported if Zimmerman had not been recruited from an outside news outlet.
“The main local newspaper, American Samoa News, was more of a propaganda piece for the government and defender of the status quo, with no unbiased or investigative reporting,” Zimmerman said. Its editor had overlooked the slave trafficking allegations and poked fun at Zimmerman’s story after it was published.
That was in 2001, but times may have changed, she said. A current investigative reporter at Samoa News said he has no comment on the paper’s relationship with the government, and the paper does its best to seek necessary documents for stories.
“Samoa News has not had any problems requesting documents with federal agencies under the federal FOIA,” the reporter said, although he declined to provide examples of stories using FOIA information.
The Marianas, a chain of 15 islands in the Pacific, is politically divided into Guam and the Commonwealth of the Northern Marianas. The area was historically under the U.S. Naval Administration, and more than 30 percent of Guam is still a military base. Media outlets tend to cover both territories.
When it comes to communicating with the mainland, Guam and the Marianas face several challenges. They are 14 hours ahead of Washington, D.C., leaving only a brief window of time in which phone calls can be made during work hours. Internet connections are slow and not always reliable. Storms can cut off communication for weeks, sometimes months. In July, an undersea fiber-optic cable was destroyed, and the arrival of a relief ship to repair it took several weeks.
Reporting locally also has its barriers beyond technical difficulties.
The Open Government Act in the Commonwealth of the Northern Marianas was most recently modified in 2013 and reads, “The people, in consenting to be governed, do not give their public servants the right to decide what is good for them to know.” But despite the language, discrepancies remain; the act also contains a provision to withhold certain private information “not in the public interest.”
Last year, a citizen sued the legislature, which claimed the Open Government Act did not apply to its elected members. The court ruled that Northern Marianas Commonwealth Legislature procedures supersede the public records law.
Guam’s open record law has been amended, repealed and re-enacted for years, resulting in the most recent version, the Sunshine Reform Act of 1999. The law is comprehensive, requiring agencies to file an annual report, to post certain information online and on magnetic media, and to comply with requests to copy documents.
The timeline required for an agency’s response to a public records request is short: four days, or 10 with an extension. The penalty for nondisclosure is the heaviest among all the territories: a $1,000 fine for a public official who fails to abide by the law. The law also created a Government Ethics Fund separate from the general fund, to assist the Guam Ethics Commission in keeping a transparent government.
In April 2014, a Legislative Freedom of Information Advisory Council was established by a Guam senator after he accused the local administration of being “shrouded in deep secrecy like no other time before.” The council was composed of 12 members, the attorney general and representatives from the media as well as all branches of government. The council was supposed to provide resources and education related to freedom of information and to seek redress from noncompliant agencies. Yet one year later, the Freedom of Information Advisory Committee is now defunct.<
“Shows how well it worked — not!” said former member and media representative Jayne Flores.
The U.S. Virgin Islands
The U.S. acquired three of the volcanic islands in the Virgin Islands chain in 1917. Just over 100,000 people reside here, over 90 percent identifying as minorities compared to the overall U.S. population. Most live on the largest island, St. Thomas, the seat of government and home to over a dozen media outlets.
-1899 Part of archipelago acquired by U.S.
-1929 Ratification Act: gives civil power to U.S. president
-1951 Power shifted to secretary of the interior
-1967 Constitution of American Samoa created
-1979 Public records defined in code
-1976 Shift from United Nations trust to -Commonwealth status
-1978 Partial Constitution goes into effect
-1986 Constitution goes into full effect
-2013 Open Government Act passed
-1917 Purchased from Denmark
-1954 Revised Organic Act serves as Constitution
-1972 First public records amendment
-2012 Code amended to include Government Transparency Act
-1898 Granted to U.S. in Spanish-American War
-1900 Foraker Act gives Puerto Rico civil government
-1917 Jones-Smith Act creates independent legislature
-1952 Constitution created for internal self-government
-1990 Regulation for the Administration of Public Documents of the Executive Branch
-2000 Public Documents Administration Act passed
-2007 Centro de Periodismo Investigativo founded
-1898 Spain cedes Guam to the U.S.
-1944 U.S. retakes Guam from Japan
-1950 First Guam Constitution created
-1987 First Sunshine Law passed
-1999 Sunshine Reform Act of 1999 passed
-2012 Most recent Constitution amended
-2014 Guam FOI Advisory Council created
-2015 Guam FOI Advisory Council defunct
Covering heavy-hitting topics such as corruption in public hospitals and abusive police tactics, the Pulitzer-winning Virgin Islands Daily News has served as the major investigative newspaper in the U.S. Virgin Islands since the 1930s. However, a weak open records law hasn’t made the job any easier, according to editor-in-chief Gerry Yandel.
In August, Yandel was working on a story about salary information of government employees, and the document he requested, a simple spreadsheet, was delayed for five weeks. The argument is that releasing names of public workers violates union law. This is a problem with the current Virgin Islands administration, he said; in the past, the same information would have only taken a week to process.
The open records law on the Virgin Islands, last amended in 2012, contains 11 exemptions compared to the U.S. FOIA’s nine. One such exemption, Yandel said, contains an open-ended loophole that prevents disclosure “if it is in the best interests of the public not to reveal information.” Because there is no standard of what this exemption means, each agency differs in what it considers a government record.
Some agencies are reliable, Yandel said, like emergency management, where the attorney general is a former judge. However, many agencies are under federal scrutiny for other reasons, so they are very wary of releasing documents. The new governor advocated for more transparency during his campaign run, but “those who say that the loudest are the worst offenders,” he said.
Yandel said his newsroom hopes for the day that records will be made available online. Although a multi-million-dollar project recently improved the island’s Wi-Fi system, government websites are rarely updated, and until 2010, there was no centralized email system for government agencies.
“It was like going back to the dark ages,” said Yandel, who grew up in Georgia. But he advises his journalists to keep asking for information, and he publishes the names of noncompliant agencies and a timeline of responses — or lack thereof — on the second page of the paper.
Readers "rely on us to be champions against the government,” he said. One issue with the Virgin Islands is a low literacy rate and educational system. “It might be beyond them to file FOIA, but not to pick up the phone and to ask the newspaper for it.”
The most populated (with more people than Wyoming, Vermont, North Dakota and Alaska combined) and closest territory to the U.S. mainland, Puerto Rico is the most likely candidate for statehood. It also encapsulates almost all of the barriers to information: no separate open records law, a bilingual population, and a media industry more focused on competition and breaking news than investigation.
Attorney Miguel Sarriera Roman is in the midst of his first — and one of Puerto Rico’s only — FOIA cases: Feliciano versus EPA, filed in October 2014. The story began seven years ago, when a battery recycling factory began leaking acid in Arecibo, posing major health and environmental concerns. The Puerto Rican EPA Division failed to act in a timely manner. But just how long it took was the question; and a FOIA request filed in 2012 was denied.
“This is a quintessential FOIA case,” said Roman, who believes there was a three-year lag between discovery and action. “It was a health and community concern. It should have been public information.”
Roman’s experience with FOI law comes from his hands-on work on prior environmental cases, not from formal education at the University of Puerto Rico School of Law. He says the language barrier is a deterrent for the general population to file federal FOIA requests. Not everyone has the English skills to write a request and to communicate back and forth with federal FOIA officers, or to read through lengthy documents and legal jargon. People might complain but don’t follow up, instead getting used to a lack of information, he said.
Challenging the federal government for information is only half the battle. There is no local open records law in Puerto Rico that guarantees citizens a way to access public documents from other agencies. It’s been an ongoing debate for nearly two decades: whether a constitutional protection or a local FOI law would better suit the territory’s needs.
A Public Documents Administration Act amended in 2000 sets procedures for assigning document administrators to oversee creation, use and disposal of documents. But the act makes no mention of a public right of access or permanent retention of information. Each agency has its own regulations, according to Roman. You can go to court, but there are no clear parameters there, either.
It’s therefore up to the journalists to request information and follow through. That’s why in 2007, journalists Omaya Sosa Pascual and Oscar J. Serrano started the Centro de Periodismo Investigativo (Center of Investigative Journalism), which works on investigative pieces and transparency cases for journalists and other interested groups.
Most Puerto Rican journalists don’t recognize how they work in contrast to how the U.S. media works, said executive director Carla Minet; they don’t report on the federal government or know about the laws, especially when written only in English. While Puerto Rico does post some information online, it isn’t always timely or accurate. And agencies collect information and crunch the numbers in different ways, making accurate reporting a challenge.
“It hasn’t gotten any easier over last 10 years, either on the local or the federal level,” Minet said. “There is not a strong investigative journalism presence in Puerto Rico, and the center has been trying to fill the gap.”
The territories are underrepresented in U.S. government and underreported by local and national media, and no one really seems to have a good explanation why.
“They kind of get overlooked,” former SPJ president and past FOI Committee chairman David Cuillier said.
Organizations like the Sunshine Foundation and Center for Law and Democracy do not collect data specifically on the territories; statistics are included as part of the country’s overall reports. Plus, territories are unlikely to be included in state-by-state analyses, said Emily Shaw, deputy policy director at the Sunshine Foundation.
While the foundation does not have specific insight into why U.S. territories have weaker FOI laws, one reason could be that developments in state FOI laws are achieved through advocates' comparisons of a single state to other U.S. states. If the problems aren’t known, they can’t be corrected.
These issues are largely invisible to the rest of the country. Territories are not often covered by mainland media. Perhaps it is the time, distance or language barriers; or perhaps it is a simple lack of knowledge about the territories and their people.
“Not many people in the continental U.S., or anywhere else in the world for that matter, care much about news in Hawaii or in U.S. territories or the Pacific Islands,” Zimmerman said. “There are important stories. And it is a real shame they don’t get more attention.”
Part of the issue is also a lack of local reporters who cover hard-hitting investigations, she said, out of the fear of retribution in a small, tightly knit community often controlled by a corrupt government. Coming into American Samoa as an outsider, Zimmerman felt she lacked knowledge of the culture and area to do the story justice. However, her story made national news and inspired change because she was able to work with a larger national organization on the mainland.
A partnership between reporters on territorial islands with mainland media can help get freedom of information issues noticed, as can posting and spreading the stories on social media for a larger audience. Collaborations with FOI organizations and relationships with lawyers, journalists and advocates in the states can direct reporters in the territories to the resources needed to fight for their right to open information.
Given new knowledge and empowerment, the territories, and their citizens, can finally step out of the shadows.
Ashley Mayrianne Jones was SPJ’s summer 2015 Pulliam/Kilgore Freedom of Information fellow. In the course of reporting this story she was offered a job at the Virgin Islands Daily News, which she accepted at the end of the summer internship period. Interact on Twitter: @amayrianne