Government Transparency: Lessons from the Pandemic
As the COVID-19 pandemic reached the United States, governments and agencies locked down access to public information. Key quotes from our September 2021 FOI Summit:
“Governors have suspended their state laws under emergency authorizations because the pandemic has not ended. Even now, the consequences of that have been felt far and wide, not just among the press or open government groups, but also members of the general public.”
— Tom Verdin, national editor for state government coverage,
The Associated Press
“During government shutdowns, we have definitely seen federal agencies suspend processing of records requests under FOIA. A common trend we’ve seen during shutdowns is agencies say that they will resume FOIA operations when their funding is restored. So we have seen FOIA deemed non-essential at the federal level before. But during this pandemic, government employees are still working. It just looks a little bit different. … So the rogue decisions of some agencies to just totally ignore their obligations under FOIA was really troubling.”
— Gunita Singh, staff attorney,
Reporters Committee for Freedom of the Press
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NFOIC News
NFOIC hires Virginia Coalition for Open Government to handle administrative duties beginning July 1
The National Freedom of Information Coalition will hire the Virginia Coalition for Open Government to handle the NFOIC’s administrative duties, including collecting dues and donations, planning the annual FOI Summit, and managing the Knight FOI Litigation Fund.
The NFOIC Board voted Monday, Dec. 13, to award a three-year contract to VCOG, an NFOIC-member organization with a 25-year history of educating and advocating for open government and transparency. Starting July 1, 2022, the NFOIC will pay VCOG $10,000 annually for administrative support services.
NFOIC Board members expressed confidence in VCOG’s ability to provide quality and continuous support to the NFOIC, to NFOIC’s network of state and local member organizations, and to other stakeholders. The move is intended to provide operational stability for years to come, regardless of any possible changes to NFOIC funding or staff.
“This decision provides a solid foundation for the NFOIC, allowing it to work alongside one of its most-established state coalitions and benefit from shared services, equipment and processes,” said Todd Fettig, NFOIC executive director. “Like most any organization in these historic times, the NFOIC must find new ways to work efficiently and effectively, while staying true to its mission and meeting the needs of its members. This agreement accomplishes all of that.”
The Board of Directors of the New Mexico Foundation for Open Government has named Shannon Kunkle as the new Executive Director of the organization beginning Jan. 3, 2022.
Kunkle is an Albuquerque native who graduated with honors from the University of New Mexico, where she studied journalism, advertising and marketing.
Her past employment includes work in the marketing departments of the Roadrunner Food Bank and the Albuquerque Publishing Company.
Kunkle takes over from Melanie Majors who announced in October she was retiring from FOG.
Note: At a Nov. 29, 2021, meeting, the NFOIC Board voted to lift the cap on Knight FOI Litigation Fund grants, from $5,000 to $10,000. As of Dec. 1, 2021, the Litigation Fund balance stood at $595,123.
When copyright and state FOI laws collide,
public access often is denied, law article explains
State and local governments increasingly claim copyright protections to deny public access to records and data, and the tension between intellectual property laws and freedom of information laws raises difficult issues, according to an article by Frank LoMonte, director of the Brechner Center for Freedom of Information, which is a partner of the National Freedom of Information Coalition.
LoMonte’s article, “Copyright Versus the Right to Copy: The Civic Danger of Allowing Intellectual Property Law to Override State Freedom of Information Law,” was published in the Loyola University Chicago Law Journal, Vol. 53, Issue 1, released in fall 2021.
“The article identifies the knotty jurisdictional problems that arise when a dispute over government records requires interpreting both copyright law (the exclusive province of federal courts) and state freedom-of-information law (the exclusive province of state courts), with the practical result that the delay and expense of parallel litigation will be tantamount to denial of access for all but the most stubborn requester,” LoMonte said in a news release published by the University of Florida’s College of Journalism and Communications, where he teaches.
Many police personnel records remain secret,
despite public pressure for transparency
In some jurisdictions, because of state laws or by contract, officers can conceal their personnel files, including records of wrongdoing.
“Secrecy of police discipline has been a huge problem,” Sam Walker, an emeritus professor at the University of Nebraska who has studied policing for decades, told the McClatchy newspapers. “Academics ignored it, politicians were terrified, and police unions figured out you could play the crime card — any limits that would allow criminals to go free, you will be blamed.”
In a blow to transparency, Virginia conceals names of government workers using credit cards
On a recommendation from its vendor, Virginia has removed government employee names from credit card expenses, a move that contradicts the Virginia Freedom of Information Act, experts say.
Bank of America advised state leaders to withhold the names of people with state-issued credit cards. Bank of America said the advice is intended to reduce the threat of identity theft.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, an NFOIC member, said that under state law the public cannot be denied access to records of any government employee’s allowances or reimbursements for expenses. It’s important to know how particular workers spend tax money, she said.
Project invites help, seeks data as it tries to gain understanding of COVID-19 deaths
The United States is undercounting COVID-19 deaths, especially among Native, Hispanic and Black Americans. A project of MuckRock and Columbia’s Brown Institute for Media Innovation, in collaboration with USA Today, will attempt to examine the true death toll from the pandemic.
“There are sizable gaps in the data as local and state medical examiners and coroners wrap up their death reporting for the year,” according to an article posted on MuckRock.com and USATODAY.com.
“Due to a lag in death certificate reporting, more than 110,000 deaths in 2021 haven’t been assigned a cause of death yet. Another 74,000 deaths in 2021 are attributed to an 'ill-defined' cause – nearly double the annual average before the pandemic. That’s likely due to overwhelmed medical examiners and coroners who have’t finished investigating those deaths.”
The project invites those who have dealt with death certificates to share information.
Michigan Supreme Court orders redistricting panel
to release memos, video of private meeting
The Michigan Supreme Court on Dec. 20, 2021, ordered the Michigan Independent Citizens Redistricting Commission to release a recording of an October 2021 private meeting and to release memos that the Commission sought to keep under wraps. The Commission’s attorneys claimed the memos should be concealed because of attorney-client privilege.
The Michigan Press Association and three Michigan news organizations — Bridge, The Detroit News and Detroit Free Press — sued the Commission. Michigan voters in 2018 amended the state’s constitution to create the Commission, intending to replace the state’s closed-door and partisan process for drawing legislative boundaries with a process that involved public participation and transparency.
“The voters in 2018 changed the process for redistricting in Michigan. In doing so, they established numerous safeguards to ensure that the new process would be transparent,” wrote Justice David Viviano. “Today, we enforce two of those provisions against the Commission’s attempt to operate outside of public view.”
A 2021 survey of state coalitions for open government showed that the
greatest threats to government transparency today are legal exemptions primarily focused on protecting individual privacy. Learn how NFOIC members protect the public's right to know. Click the image above to download a PDF
of "States of Denial."
NFOIC Newsletter Contacts
This newsletter is produced by Todd Fettig, NFOIC executive director, and Erika Benton, NFOIC external partnership coordinator and communications specialist. To contribute items or for more information, email nfoic@nfoic.org, tfettig@nfoic.org and ebenton@nfoic.org. To read regular FOI updates, visit our blog at nfoic.org and follow us on Twitter, Facebook or Instagram.
