2013 NFOIC/MLRC Open Government Survey Showed Troubling Trends for Transparency

December 12, 2013 3:30 PM

Press release from MLRC and NFOIC:

By Amaris Elliott-Engel, MLRC Legal Fellow

NFOIC’s third biennial joint study with the New York-based Media Law Resource Center (MLRC) showed a continuation of trends that are troubling to open government advocates.

Just as similar informal surveys in 2009 and 2011 had, the 2013 Open Government Survey found a substantial decline over the last two to five years in the amount of resources devoted by media organizations to FOIA and open government issues.

Additionally, the survey, based on perceptions of leaders of NFOIC member organizations and members of MLRC’s Defense Counsel Section, suggests there is a greater inclination among government officials for gaming the system than complying with existing disclosure and accountability laws. The study also showed a shared perception among both NFOIC members and the access attorneys that recent legislative changes were more often harmful to transparency and accountability rather than improvements.

Some 153 representatives of the two organizations participated in the 2013 survey. It showed a continuation of a trend reported two years ago in a prior survey of people in the field who see a decrease in legal resources being applied to FOIA and open government issues. This year 46.2 percent of surveyed MLRC attorneys ("media attorneys") said media organizations had decreased those legal resources substantially, while 35.6 percent of NFOIC representatives indicated the same.

In 2011, 23.37 percent of surveyed media attorneys reported that open government lawsuits had decreased substantially, while 25.5 percent of those surveyed from NFOIC reported the same.

Other results and findings of the jointly administered 2013 survey included these:

  • 46.2 percent of the surveyed media attorneys said media organizations had decreased those resources substantially, while 35.6 percent of NFOIC representatives indicated the same.
  • 24.6 percent of media attorneys said such resources had decreased slightly, while 25.4 percent of NFOIC representatives indicated the same.
  • 3.1. percent of media attorneys said the resources had stayed about the same in contrast to the 20.3 percent of NFOIC representatives who said such resources had stayed on the same level.
  • The numbers of respondents in both groups who view that such resources had increased slightly or increased substantially were closer in percentage.

More media attorneys than NFOIC respondents reported that interventions on behalf of media clients on open government issues has decreased:

  • 26.2 percent of media attorneys said such intervention has decreased substantially in the last two to five years, and 27.9 percent said such intervention has decreased slightly, while no NFOIC respondents found a substantial decrease and only 3.6 percent found a slight decrease.
  • The reason for the decrease in such legal action by media organizations is due to lack of funds or resources for litigation, 83.3 percent of media attorneys and 56.9 percent of NFOIC respondents said.
  • Another reason for the decrease is a decline in the kind of reporting that requires an assertive legal posture to access information, 29.3 percent of NFOIC respondents said and 13.3 percent of media attorneys said.
  • Only a small percent from each group said that legal actions by media organizations are not continuing to decrease.

A higher percent of NFOIC members reported seeing an increase in government efforts to comply with open government laws:

  • 10.4 percent of media attorneys said governmental compliance in providing access to citizens and to comply with open government laws had stayed about the same in the last two to five years, while 33.3 percent of NFOIC members had that view.
  • 32.8 percent of media attorneys said such governmental compliance had decreased slightly, but 20 percent of NFOIC representatives saw a slight decrease.
  • Those freedom of information advocates and media attorneys who said that such efforts had stayed about the same were closer in percentage: 34.3 percent of media attorneys and 31.7 percent of NFOIC members said compliance efforts had stayed on an even keel.

Media attorneys and NFOIC attorneys were also surveyed on which types of government agencies are the most difficult for private citizens and journalists to get information from:

  • Municipal government: 47.5 percent of media attorneys and 38.6 percent of freedom of information professionals said municipal government is the most difficult to obtain information from.
  • County government: 27.9 percent of media attorneys and 22.8 percent of freedom of information professionals said county government is the most difficult to obtain information from.
  • State government: 31.1 percent of media attorneys and 29.8 percent of freedom of information professionals said state government is the most difficult to obtain information from.
  • Federal government: 29.5 percent of media attorneys and 12.3 percent of freedom of information professionals said federal government is the most difficult to obtain information from.
  • Quasi-public governmental bodies: 24.6 percent of media attorneys and 45.6 percent of freedom of information professionals said quasi-public governmental bodies are the most difficult to obtain information from.
  • Public universities: 29.5 percent of media attorneys and 43.9 percent of freedom of information professionals said public universities are the most difficult to obtain information from.
  • Police departments: 45.9 percent of media attorneys and 57.9 percent of freedom of information professionals said police departments are the most difficult to obtain information from.
  • Local school boards: 21.3 percent of media attorneys and 49.1 percent of freedom of information professionals said local school boards are the most difficult to obtain information from.

Media attorneys and NFOIC members were on the same page that state government agencies tend to the most transparent:

  • 53.1 percent of media attorneys said state-government agencies were the most transparent, while 57.8 percent of NFOIC respondents reported the same.
  • Municipal-government entities are the most transparent and cooperative, according to 30.6 percent of media attorneys and 44.4 percent of NFOIC respondents.
  • County governments are the most transparent according to 20.4 percent of media attorneys and 35.6 percent of NFOIC members.
  • The federal government is the most transparent governmental agency, according to 22.4 percent of media attorneys and 17.8 percent of NFOIC respondents.
  • Police departments are the most transparent governmental agencies, according to only 8.2 percent of media attorneys and 20 percent of NFOIC respondents.
  • Local school boards are the most transparent governmental agencies, according to only 4.1 percent of media attorneys and 11.1 percent of NFOIC respondents.
  • Public universities are the most transparent governmental agencies, according to only 8.2 percent of media attorneys and 8.9 percent of NFOIC respondents.
  • Finally, quasi-governmental bodies were reported to be the most transparent by only 4 percent of attorneys and by no NFOIC members.

Both media attorneys and freedom of information professionals reported at a high rate that "emerging forms of public data and proactive disclosures" have not made their services and resources less needed over the last two to five years:

  • 20 percent of media attorneys said their services are much more needed with the rise of public data and proactive disclosure by governmental entities, while 33.9 percent of NFOIC correspondents indicated the same.
  • 18.3 percent of media attorneys said their services are slightly more needed, while 21.4 percent of NFOIC respondents indicated the same.
  • Fifty percent of media attorneys said there was no change, while 41.1 percent of NFOIC respondents indicated the same.

More NFOIC respondents than media attorneys reported that enforcement mechanisms for noncompliance by governmental officials with open government rules were ineffective:

  • 33.9 percent of NFOIC respondents said enforcement measures were not effective at all, while 16.4 percent of media attorneys reported the same thing.
  • 32.2 percent of NFOIC members said enforcement measures were somewhat effective, while 42.6 percent of media attorneys reported the same thing.
  • The number of media attorney and NFOIC respondents who said enforcement measures were somewhat ineffective was very close with 21.3 percent of media attorneys reporting that and 22.0 percent of NFOIC correspondents reporting that.
Other highlights of the survey include:
  • The majority of media attorneys and NFOIC respondents said that "disingenuous rationalization" was the most common reason why government officials deny access to information. Interpretations of statutory language and "inappropriate game-playing" were the next most common reasons for governmental officials to deny access to information, those surveyed reported.
  • The media attorneys and NFOIC members agreed that the three most common obstacles presented by the government in accessing information are: the citation of invalid exceptions, lack of response or delayed responses, and unreasonable fees.
  • Many more media attorneys than NFOIC respondents said the changing landscape of government access has affected the quality of news coverage in their area: 49.2 percent of media attorneys compared to 25.0 percent of NFOIC members.

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