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Wednesday, February 17, 2016
FOI Toolbox

Fight secrecy without the lawsuit

By Jonathan Anderson

When Illinois journalist Susan Sarkauskas was denied access to a meeting of the Waubonsee Community College Board of Trustees last year, she could have filed a lawsuit alleging the board had violated the state’s Open Meetings Act.

Instead, Sarkauskas simply wrote to the Illinois attorney general.

In about a month, the attorney general’s office took action: It issued an opinion finding that the board had indeed broken the law, and it ordered release of a recording of the closed meeting and other materials.

The decision was an important victory for Sarkauskas, a reporter for the Daily Herald newspaper near Chicago, who believed the board had improperly discussed the college’s finances behind closed doors.

But more broadly, her case also illustrates how journalists can challenge improper government secrecy in ways that may be faster and less expensive than litigation.

Sarkauskas had invoked a 2010 statute giving the Illinois attorney general authority to enforce the state’s open government laws through binding decisions, advisory opinions and mediation.

A growing number of states have similar mechanisms, which at their core give journalists and other members of the public an opportunity to seek third-party review of disclosure disputes outside of court. Here are some examples:

• The Connecticut Freedom of Information Commission reviews citizens’ complaints involving access to government records and meetings. The commission can hold hearings, compel government bodies to release records and invalidate decisions made in illegal meetings.

• In Pennsylvania, record requesters may appeal denials to the state’s Office of Open Records, which can issue binding decisions. The office is also authorized to help parties informally settle their differences.

• Florida’s attorney general offers mediation services between record requesters and governmental bodies in a non-adversarial manner.

• Wisconsin’s attorney general technically can sue on behalf of aggrieved record requesters, but that almost never happens. Instead, the attorney general’s office more commonly responds to complaints by issuing advisory opinions.

• At the federal level, the Office of Government Information Services calls itself the “FOIA ombudsman.” It has authority to mediate disputes between Freedom of Information Act requesters and executive agencies, and is also tasked with reviewing how well agencies are complying with their disclosure duties.

To be sure, these procedures are not perfect nor silver bullets for securing transparency. Federal agencies can ignore the Office of Government Information Servces, for example, and there are questions in Illinois as to whether the attorney general’s binding decisions have any teeth.

It’s also just as true that in certain circumstances, the only way to force information out of the hands of uncooperative officials will be a court order. And if that’s the case, a lawsuit might be appropriate.

But suing may not always be possible or prudent, especially in uncertain financial times for the media. Research indicates that news organizations on the whole tend to be devoting fewer legal resources to challenging government secrecy, despite the existence of programs such as SPJ’s Legal Defense Fund and the fact that record requesters in many states can recover attorney’s fees if they prevail in lawsuits.

In short, we as journalists would benefit by taking a page out of Sarkauskas’ playbook: Be vigilant when you see violations of freedom of information laws, and fight improper secrecy using whatever tools are available. It might be easier than you think.

Enforce Your Right to Know

To learn more about FOI enforcement mechanisms, visit the Open Government Guide from the Reporters Committee for Freedom of the Press.

Jonathan Anderson is a reporter for Gannett Wisconsin Media and is chairman of SPJ’s Freedom of Information Committee. Contact him at andjonc@gmail.com and interact on Twitter: @jonathanderson

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