“I will also hold myself as president to a new standard of openness. … Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.”
– Barack Obama, January 2009
Well, not so much. President Obama not only has not lived up to his Inauguration Day pledge, he sets a poor example right in the White House, which seeks to control news coverage even to the point of barring news photographers from official events. Instead, the Obama people distribute photographs of which the administration approves.
Admittedly, it is not the most pressing issue facing journalists and the Americans who depend on their reporting to know what is being done in their name.
But there are many other examples, from village halls to Capitol Hill, where elected leaders and their appointees are purposely working to deny Americans the information they need to function as informed citizens of a great democracy. That’s intolerable. And it’s the reason for Sunshine Week, a time each year when news organizations focus on the need for transparency, open government and freedom of information. And, invariably, the many ways that governments seek to cheat their people.
It happened earlier this year, when leaders of the Westfield Academy and Central School refused to provide clearly public information regarding the death of a student, Damon W. Janes. The 16-year-old was injured in a football game in September 2013. He collapsed and was taken to Women and Children’s Hospital in Buffalo, where he died three days later.
The Buffalo News sought information regarding the tragedy, but instead of following the law, district officials dredged up an arcane law that didn’t pertain to the situation, using it as a pretext for denying the request. The Family Educational Rights and Privacy Act is meant to protect a student’s academic records. It has nothing remotely to do with video of a football game watched by thousands of spectators, which is what The News sought.
If it sounds ridiculous, that’s because it is. Frank D. LoMonte, an attorney and executive director of the Student Press Law Center in Alexandria, Va., put it succinctly: “The school should be embarrassed to be using FERPA in this way.” Yet, sad to say, that kind of evasion is typical of many governments, which twist freedom of information laws into a tool to discourage or block the release of documents or other public information.
Last December West Seneca police refused to release basic information about the two-car crash that claimed the life of West Seneca Democratic Chairman Daniel S. McParlane.
Officials insisted that their “procedures” trump state rules requiring public documents to be made public. This should not have been a difficult decision for police.
“Basic information should be available,” said Robert J. Freeman, executive director of the state’s Committee on Open Government. “Certainly, the police blotter or its equivalent should be routinely disclosed.”
He said the intent of the Freedom of Information Law is to make public such documents “whenever and wherever feasible.”
Sometimes the ruse is simply to demand a formal Freedom of Information request for all information, even data that has previously been provided upon an informal verbal request. That can be followed by institutional footdragging that can lead to a denial of the request, which produces an appeal that can also run into strategic roadblocks.
It’s both commonplace and frustrating, an approach whose unspoken goal is to keep constituents ignorant of what is happening within a public organization funded by their tax dollars.
Things might be better if the Obama administration were to set the example that it promised five years ago. Albany could help by toughening its laws to require prompt release of information and to include penalties for willful efforts to circumvent the law. Then again, it’s only democracy that is in question.
Here are four current matters that are the subject of pending legislation in Albany and are supported by the New York News Publishers Association and others:
• Public employee pension data. A 2011 court decision confused the words “retiree” and “beneficiary” and resulted in a ruling that allows public employee pension data to remain secret. Assemblyman Steve Englebright has sponsored legislation (A.5171) to ensure that public employee pension data remains open to inspection. The Senate has refused to consider such legislation since then.
• Government-owned data and copyright. Senate and Assembly bills A.1700/S.4798 would curtail the ability of government agencies to claim copyright protection for records they create. Such information must remain subject to Freedom of Information Law.
• Timely appeal of Freedom of Information lawsuits. Senate and Assembly bills A.5306/S.2065 would require that appeals by agencies of Freedom of Information requests be filed within 30 days after the agency is served with papers.
• Information relating to criminal investigations. A.5170/S.5975 would amend Freedom of Information Law to curtail blanket denials of access to records on the grounds that they are in some way connected with a law enforcement investigation.
Unfortunately, the Legislature is also considering bills that are meant to circumvent open government laws. One of them is sponsored by Sen. George Maziarz, R-Newfane. That bill, which the Senate is poised to pass, creates a backdoor exemption to the Freedom of Information Law by requiring agencies that receive requests for information about farms to notify the farm owner of the identity of the requestor.
The Senate is also nearing passage of a bill that would require agricultural producers to report the source of the water they use if it exceeds 100,000 gallons per day over a 30-day period, and then closes that data to public inspection.
Finally, New York Chief Judge Jonathan Lippman is advocating for legislation that would enable individuals convicted of non-violent, non-sexual misdemeanors to have their conviction records sealed after going a period of years without additional arrests.
Anyone can understand the potential value of granting a second chance after a one-time mistake, but arrests are reported on the Internet, and will stay there forever. Thus, the proposal would simply make it difficult for journalists to accurately report on these matters while doing little to protect offenders.