Read FOIA and Save Me from My High Horse

As an advocate, an advocate for access, I can climb up on a high horse about as quickly as any given cowboy.

The better part of discretion, however, usually persuades me that when it comes to the use of certain exemptions to withhold records or close meetings, I can’t stay on that horse but for so long. That’s because there are reasonable differences in the way exemptions are interpreted and because I don’t usually have all (or even enough) facts to know if the exemption is being used properly.

But where I sit tall in the saddle is when I see some governmental entities imposing conditions or procedures for using FOIA that do not have a basis in the law.

It’s not unusual for me to see that happen. It is unusual, though, for me to see it twice in one week, from different parts of the state, in both a state and a local government agency.

In one of the instances, both of which happened two weeks ago, a FOIA requester was told he would have to sign a use agreement before he could inspect records on a state agency computer. He was told the records could not be printed because they were subject to a non-disclosure agreement. They would not be copied electronically, and he was forbidden from taking a picture of the computer screen.

He was to be charged $.50 per page for records that could be copied and payment had to be made in advance. Only after he paid the fee would the agency begin filling the request and they would take five business days to do so.

Just about everything in the agreement was incorrect: (1) public records can’t simultaneously be open to the public and subject to a confidentiality agreement; (2) a requester can ask that records be provided in whatever format the government uses, meaning if the records were in electronic format, there is a right to receive them in electronic format; (3) nothing would prohibit photographing the computer screen -- a records custodian may take steps to preserve the integrity of a public record, but taking a picture of a computer screen of a record in no way harms the record itself; (4) the flat-rate of $.50 per page may be the actual cost, but compared to most estimates I’ve seen, it’s pretty high; and (5) FOIA requires advance payment only when estimated that it will cost $200 or more (which wasn’t the case here) and when the requester has unpaid FOIA bills 30 or more days old (also not the case here).

Ironically, because it is a state agency and state agencies are required to post a FOIA rights and responsibilities page on their websites, there was a correct statement of FOIA’s procedures and requirements available for folks at the agency to look at. But instead someone concocted this mess that nearly convinced the requester to back off of his request. It may have deterred others.

The local agency I heard about said the same thing about advance payment being required. It also said it would charge $5 for a report only a few pages long, and it required the request to be in writing, specifying the exact time and location being asked about, and also asking “what the information is going to be used for”!

Really?

Nothing in FOIA requires a written FOIA request. It’s a good idea for all involved so there will be a paper trail should there be any misunderstanding at best, litigation at worst. And, government can create its own internal policy of requiring all FOIA requests to be reduced to writing. But access to government records cannot be denied because the request was not made in writing.

Requested records only have to be described with “reasonable specificity.” Asking for a report by date range or by location should be fine.

And, asking why someone wants a record? No. No. No. No. No.

Wait, of course they can ask you why you want it. It’s just a question. Free speech and all. But they cannot require you to tell them. It makes no difference why you want a record. There are no right or wrong, good or bad, approved or disapproved uses. That’s not the government’s place -- or anybody else’s -- to decide that for anyone else.

To both these agencies’ credit, when questioned about the inaccuracies in their procedural requirements, they backtracked and let the requests go through easy peasy.

But why did these strange policies exist in the first place? I don’t want to attach a nefarious motive. I know enough dedicated and conscientious public servants to doubt that they’re deliberately trying to thwart the public’s right to know. On the other hand, I’ve also see some lazy and misinformed employees wildly misapprehend FOIA. Maybe no one challenges them so they convince themselves they’re correct and their successors don’t know any better. Or maybe there are a few bad apples who really don’t think it’s the public’s business to see the public’s business.

Whatever the reason, I sure do wish that they’d pick up a copy of FOIA and really study it. Or ask the FOIA Council or the Municipal League or the Association of Counties or, gasp!, us for training and insight into the cans and cannots of FOIA.

Because after those back to back ordeals, I’m getting saddle sores up there on my high horse.