DelCOG Meeting — The State of FOIA Activity

Charles Davis, Executive Director of the National Freedom of Information Coalition spoke to the DelCOG group on Thursday and delivered a very interesting talk about the state of FOIA activity in the US and the increasing push by governments at all levels in the US to try to build a wall around their actions and deliberations.

The good news, according to Davis, is that interest in government transparency is very high — largely an unintended gift of George W Bush. People for all parties are clear about the need to have the government operate in the open, given the insistence on (and the consequences of) the obsessive secrecy of BushCo. This is a real advantage for Open Government partisans — it is much easier to change the conversation towards greater openness, since now everyone knows exactly what you are trying to accomplish. Interestingly, he noted Texas as being a famous Open Government state and John Cornyn (!) as being a pretty good friend of Open Government as well as Shield Law efforts. The Texas politics that he came up in rewarded politicians who actively supported Open Government issues. Go figure.

The big issues for Open Government (besides the fact that we don’t really have it — yet! — here in Delaware):

• Comprehensive Electronic Records Status. The government ought to have and implement a policy for the long term retention, retrieval and distribution of electronic records subject to FOIA.  Further, if the data exists electronically, then the Government should give it to you in electronic form.  He also noted that they should give it to you in exactly the form it was created and used in — provide you spreadsheets in Excel, for example.  Too often agencies are allowed to play games with delivering data by requiring you to come in and get hardcopy — which they charge you fees and labor for.  When it is easy enough to attach the file to an email and send it to you, or copy it to a thumb drive and give it to you.
• Email of Public Officials. Governments are trying to get wholesale exemptions of their .gov emails.  In many ways, governments are well behind the current practice for email management.  Most of us work for employers who not only provide policy for using work email addresses, but also are clear that they own all of your email generated from and received in that account.  Depending upon the kind of work you are in, there may be procedures AND equipment to make sure that all email traffic is captured and stored.  There are legitimate privacy issues for citizens who may be dealing with very sensitive issues with a public official or agency, but there are ways to manage that.
• Invocation of Deliberative Privilege.   This is Executive Privilege, but Davis extends this to include Legislative bodies as well.  In this, states and other local governments are trying to imitate the BushCo -era Feds — trying to keep meeting minutes, attendee lists, agendas and other planning products out of the public eye.  He noted that this is invoked often around development issues and discussions.
• Debate over the reconciliation of the public with the private spheres. There is a definite trend to enlarge the privacy exemptions  of information that might be covered by FOIA.  The exemptions are often too broad, providing another hiding place for government to work.

Davis took alot of questions and there was some good discussion of issues, including a number of really good questions by John Rago.  One of the things mentioned was that DelCog has sent to Gov. Markell a letter asking him to issue a letter to Delaware agencies largely replicating Obama’s directive to Agencies to treat FOIA requests with a presumption for release of data.

He left us with a couple of good FOIA resources: WikiFOIA.org; Citizen Access Project a the University of FL, which provides a comprehensive database of FOIA law from states and municipalities; and the NCFIOC site itself (where Mr. Davis runs a blog).

There is another meeting on Delaware Open Government set for 17 February hosted by the League of Women Voters.