While the Freedom of Information Act offers the public a way to pry records from the federal government, the 50 different laws that allow citizens to request information from their respective state and local officials run the gamut from highly effective to deeply frustrating.
Some states, such as Alabama, have no statutory time limit for state officials to process records requests and instead only urge officials to respond “promptly,” giving the government ample opportunity to stall requests at will.
The Alabama Supreme Court has even ruled that citizens may not request records if “the purpose is purely speculative or from idle curiosity,” according to the National Association of Counties.
Other states impose short timetables on government agencies in an effort to encourage rapid responses, such as Nebraska’s four-day limit.
Nebraska has been named as an accessible state in multiple studies. New Jersey’s open records law is also often cited as an example for other states to consider.
Walter Luers, president of the New Jersey Foundation for Open Government, said the law’s broad definition of what constitutes public records boosts access to documents.
Luers said the state’s rapid response time also helps more residents get the records they seek.
“The unwritten rule that’s developed in New Jersey is 30 days, but you find a lot of people get it done in seven to 14 days,” he said. “I don’t think there’s a pattern of delay or a pattern of abuse.”
If a citizen whose request has been denied sues the state government and a judge decides officials improperly withheld information, the state is forced to pay the citizen’s attorney fees under a provision known as mandatory fee shifting, Luers said.
He said mandatory fee shifting encourages openness because “the threat of prevailing party attorney fees might make you err on the side of disclosure, which is what you’re supposed to do anyway.”
Charles Davis, dean of the Grady College of Journalism and Mass Communication at the University of Georgia, said one of the most important factors that determines whether a state’s freedom of information laws are effective is whether they include provisions limiting response times.
“Remarkably, there are a lot of states that still don’t mandate, in terms of a number, how many business days can go by before they have to respond,” Davis said. “And that really hurts, because the state can sit there and hope you go away.”
He said the appeals process and the way states handle lawsuits over their refusal to disclose certain records changes the overall effectiveness of a state’s transparency law.
“If and when that citizen who gets denied that information decides to do something about it, in the vast majority of states, the only recourse that citizen has is to file suit,” Davis said. “Very few states even allow for the recovery of attorney’s fees if you win your lawsuit.”
Requiring the state to recoup plaintiffs’ losses in the event a judge rules in their favor is “hugely significant” to successful freedom of information laws, he noted.
Many states’ open records operations mirror the federal FOIA process in that citizens must sometimes sue the government in order to force disclosure.
That’s because state officials, whether willfully or through ignorance of the law, may attempt to block the release of documents using vague legal justifications.
Robert Reed, director of programming at the Illinois-based Better Government Association, said strong freedom of information laws should impose sanctions on state officials who misapply the law and erroneously withhold records.
“You don’t want a hollow law,” Reed said. “The law has to have some bite to it if you don’t comply.”
He said those sanctions could include court costs, such as attorneys fees, or other penalties, but should apply more pressure than a simple “slap on the wrist.”
A study of each state’s open records legislation discovered the most effective laws contained few exemptions and provided a simple avenue for citizens to appeal decisions they feel are unfair.
South Carolina, Virginia, West Virginia, Colorado and Maryland provide citizens with the least amount of access to public records, according to the State Integrity Investigation, an analysis conducted jointly by the Center for Public Integrity, Global Integrity and Public Radio International.
Connecticut, Rhode Island, Washington, Pennsylvania and Illinois were ranked as the best states for public transparency.
The study looked at how quickly and thoroughly states responded to requests, whether certain agencies or officials were exempt from the laws, and the cost of appealing unfavorable decisions, among other factors.
Gordon Witkin, executive editor at the Center for Public Integrity, said the group is developing an updated version of the 2012 analysis slated for release this fall.
“But our original findings continue to resonate, especially when scandals pop up, as they frequently do, in state government,” Witkin said.
Texas, which ranked 29th in the State Integrity analysis but has been touted as an example of effective open records laws, is working on yet another way to improve its residents’ access to information: giving the state government ownership of officials’ business-related private emails when those records are included in a citizen’s request.
Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said the fact that state government officials must ask permission of the attorney general’s office if they want to withhold information pushes them to disclose records more readily.
“In Texas, the burden is on the government and it’s presumed that information is public and it ought to be handed over to the requester,” Shannon said.
Then-Attorney General Gregg Abbott drove home the significance of his state’s Public Information Act in 2003 after a school superintendent was convicted on criminal charges for intentionally withholding records from a newspaper. Abbott was elected governor of the Lone Star State last November.
“I want all government officials to take note of how this case ended,” Abbott told the Fort-Worth Star-Telegram that year. “I have said before that I will vigilantly enforce open government laws and I will protect the public’s access to information. It’s essential to ensuring public confidence and accountability.”
A bill introduced to the state’s legislature in February would amend the Texas Public Information Act by adding a provision that compels government officials to turn over private emails that dealt with government business.
In 2013, the state approved a measure that deemed those emails a matter of public record. But in the years since, some local governments have claimed they could not produce private emails in response to requests because they didn’t have custodianship over the records.
Shannon said the state bill closes that “loophole” and gives the government custodianship over private emails.
“The legislation being debated right now would ensure that officials would have to turn them over or else be subject to a lawsuit,” she said.
Litigation is one of the only options for Georgia residents who feel their requests are being stymied unfairly, said Sabrina Smith, state chairman of Georgia Watchdogs.
“The attorney general takes no enforcement action,” Smith said. “Most people are not going to take $10,000 or more out of their pocket and sue the government.”
Smith said the fact that Sam Olens, Georgia’s attorney general, is facing multiple allegations of corruption “goes to the heart” of the state’s failure to comply with open records laws.
“Needless to say, watchdog groups are very concerned about the lack of transparency and the unwillingness of anyone to enforce the law,” she said.
The attorney general office’s willful refusal to enforce Georgia open records laws was evident in its response to a request Smith filed for the number of complaints the office receives regarding violations of the open records law.
“Citizens in Georgia have long had — and continue to have — the power to bring their own actions to enforce the law. Indeed, if a citizen believes his or her rights have been violated but refuses to bring legal action, they are [in] no position to complain about any conduct of this office,” wrote Stefan Ritter, senior assistant attorney general, in an email obtained by the Washington Examiner.
“In fact, the law is clear that the attorney general’s action is completely discretionary,” Ritter continued. “If you or any citizen believe your rights have been violated, you have an obligation, at the end of the day, to go to court if you want to enforce your rights. That is the way the law works.”
While Georgia ranked 40th in public access to records, the state came dead last in terms of overall “corruption risk.”
Officials have attempted to skirted the state’s open records law by using private email in the past.
For example, Tim Lee, the chairman of the Board of Commissioners for Cobb County, which encircles the bulk of Atlanta’s affluent northern suburbs, used a private email address in his effort to strike the multi-million dollar deal that moved the Braves baseball stadium from the city to his county, the Atlanta Journal-Constitution reported. The use of a non-government email account to reach the controversial agreement meant the messages weren’t initially subject to open records laws.
