“Press releases tell us when federal agencies do something right, but the Freedom of Information Act lets us know when they do not,” U.S. Sen. Patrick Leahy, D-Vt., once said. I like that quip given that government agencies — federal, state and local — have a nasty habit of releasing whatever information they want us to see, and then concealing (or obfuscating) the documents and information that provide a less flattering view of their behavior.
Yet federal and California laws are clear: Government officials don’t get to pick and choose the documents they release to the public and the media. There are exceptions where government officials have a compelling interest to keep some information private, but they are narrow — and ultimately all of the information belongs to the citizenry. It’s not just a grandiose concept, but it’s practical: everyone at least pays lip service to the reality that open government is the best way to limit corruption.
Commentary: More Steven Greenhut columns about California
While the principle is clear, the reality often becomes hazy. Officials have myriad ways to withhold such documents. A newly introduced bill, AB 1707, by Assemblyman Eric Linder, R-Corona, sounds like a minor and technical tweak to the California Public Records Act, but it addresses this serious problem. If it becomes law – and there’s much reason to expect bipartisan support for it – it will make it much harder for officials to hide documents from public review.
Under current law, public agencies must disclose their records, although there are some exemptions. If the agency denies a written document request, it must include a written explanation of the denial. “The bill would require that written response additionally to include a list that contains the title or other identification of each record requested but withheld due to an exemption and the specific exemption that applies to that record,” according to the explanation from the Legislative Counsel. The bill also requires a written response to all requests, written or otherwise.
The bill evolved after a constituent contacted Linder and complained about the obstacles faced after filing a public-records request. Currently, agencies don’t have to explain the exemptions and they don’t have to identify the specific documents. The rejections can be broad and vague. “You have to trust the agency and believe they are acting in good faith,” Linder told me. “It’s a small step toward making government a little more transparent.”
Actually, it’s a decent-sized step. The California Newspaper Publishers Association’sgeneral counsel Jim Ewert details a typical situation: “A requester seeks information … and the agency’s response denies access to the records and simply lists the exemptions that apply. The agency might as well send the requester a copy of the government code. There is no attempt to line up which exemptions apply to which documents (or portions thereof). The requester has no understanding of why he or she is denied access or whether an exemption is properly applied. The only way that the requester can make certain that he or she is not being duped is to file a … lawsuit challenging the agency’s denial.”
This is especially important in the changing world of journalism. It’s unfair for agencies to force media companies to challenge agencies to release legitimately public documents. But a denial can pose an insurmountably costly burden for bloggers and independent journalists. Too many government officials know they can obfuscate and get away with it. There are too many incentives to do so.
There are many other ways that government agencies evade their responsibility to release information. One is to try to charge unreasonably high fees to print and produce the documents. Officials will sometimes take the opposite approach and dump such a large amount of information on a requester that it makes finding the crucial piece the equivalent of finding a needle in a haystack. Other times agencies – especially police agencies – redact virtually everything of importance in, say, a police report. So more needs to be done.
No legal tweak can force officials to act in good faith, but bills such as this one remind state and local agencies that these are supposed to be the people’s documents. Public officials are supposed to work for us. We get to see more than press releases, or whatever hand-picked information our public servants hand us. The public ought not to be forced to file a public-records-act lawsuit to get what is rightly theirs. This might be a tad Pollyanna-ish given the sometimes grim reality of how government works, but any law that helps restore a proper balance is worth pursuing.