Troubling Trends from Biennial Open Government Survey
Digital records and personal devices challenging conventional FOI processes
Contact: Daniel Bevarly 239.823.1811 • firstname.lastname@example.org
March 17, 2016- As in the last three national survey results, NFOIC’s fourth biennial joint survey with the New York-based Media Law Resource Center (MLRC) shows a continuing trend that should be troubling to anyone who supports democratic freedom and open government including access to public institutions. The fourth biennial national open government survey conducted in 4Q2015, was expanded to include members of the Investigative Reporters and Editors (IRE) organization to widen participation to include journalists who are on the front line pursuing government officials and agencies.
The survey also provides a glimpse into the challenges to public institutions and their officials to collect, organize and manage public records. Much of this challenge is coming from new digital forms of public records and how they are being created, classified and retrieved. States in particular also display a lack of consistency in administrative procedures to handle public information. Formal professional standards and increased education and training of public records employees is lacking in most states. And the different branches of government are also in conflict when it comes to legal, economic and political requirements to manage public information in the digital age.
Close to three-fourths of the more than 300 survey respondents suggest that violations by government agencies and public institutions have increased or remained steady over the past two years. Forty-four percent of respondents believe the incidence of open records or proceedings violations in their state and local jurisdiction has increased, while 30% believe they have stayed the same. Forty-four percent also believe open government requests by the news media have increased in their state and local jurisdictions while 22% believe it stayed about the same.
With the decrease in confidence in governments to be more transparent, so too is a lower confidence in public officials to be informed about their jurisdiction’s FOI laws and compliancy policies. Many state legislatures have passed new laws increasing the number of exemptions to their current FOI laws. Another area of concern is the increased cost to the public to access records. Fifty percent of survey respondents believe the changes have adversely affected media organizations with decreasing resources devoted to FOI litigation in their state and local jurisdiction.
In terms of which governments or agencies showed more transparency over their counterparts, the survey showed county and municipal governments surpassing state government as being viewed as more transparent over the 2013 survey results. Local police departments continued their #1 status as the most difficult in which to obtain information (56%).
Those government or public agencies behind law enforcement departments that are the most difficult for private citizens and journalists to access information include:
- Federal agencies (48%)
- Quasi- public governmental bodies* 46%
- State Government (37%)
- Municipal Government (32%)
- Public Universities (31%)
- Local School Boards (22%)
- County Government (18%)
* entities that enter into contracts with governmental bodies
Forty-one percent of respondents believe government officials' understanding of and voluntary compliance with open government requirements in their state and local jurisdiction has decreased, while 40% believe it has stayed about the same. This finding may suggest the emerging challenge to governments and public institutions to manage the increase and complexity of digital public records.
Other findings from the survey found due to emerging digital public information and records more advocacy services and resources are needed and are valuable to obtaining public information according to 47% of the respondents, while 45% believed there was no change impacted by digital records.
Given seven policy options, respondents were asked to select their top three choices that could increase open records compliancy. The number one option cited is by increasing enforcement measures. Forty-five percent said it was the #1 most needed solution while another 23% cited it as their #2 selection.
Having government officials and employees who are better informed and more educated about open government responsibilities was #2 policy option (27% said it was the #1 most needed solution and 33% cited it as their 2nd choice). The third policy option selected was the need to have a general public that is better informed and more educated regarding open government laws --23% said it was the #1 most needed solution and 20% cited it 2nd). Coming in a close fourth was to have more and better advocacy by press associations, law firms, open government organizations and others (21%).
Unfortunately, while increasing enforcement measures is cited as the number one recommendation to increase transparency, 60% of respondents believe current enforcement measures are ineffective.
Other survey highlights include:
- As a repeat in the 2013 survey, the majority of respondents (63%) said that "disingenuous rationalization" was the most common reason why government and public officials deny access to information. However, “Inappropriate game-playing” received 60% and “arguable interpretation of statutory language” was cited by 57%. Fifty-one percent believe denial of public information comes from ignorance of the law, and only 23% of respondents credits “honest mistakes” as the reason they were denied access.
- The three most common obstacles to obtaining information cited are lack of response/delayed response (87.5%) which surpassed “invalid exceptions” (72%) in the 2013 survey, but was still the runner up in the 2015 survey. “Unreasonable fees” was third (58%).
- A decrease in the quality of news coverage as the result of a changing landscape of government access over the past two years was cited by just over a third of respondents (36%) while 26% felt that coverage had improved and 37% cited no change in the quality of news coverage.
- Eighty-eight percent of respondents agreed that there is a declining media interest and involvement in litigation and legal actions regarding open government matters and 70% of these respondents attributed it lack of funds and resources for litigation.
- Asked how respondents would rate the impact of reforms, amendments and legislative changes to public disclosure and open meeting laws affecting their state, only 11% believe recent changes have improved their state's open government laws. While 34% believe the quality and effectiveness of open government laws have stayed about the same, nearly a third (30%) believe the changes have weakened their open government laws.
As a result of the survey findings, the national Freedom of Information Coalition makes three recommendations to government and public institutions, including members of the public to help reduce friction and improve cooperation to make public organizations more open, accessible and transparent:
- Increase government officials’ knowledge of open government laws and procedures by establishing or expanding formal education and training programs and creating professional standards;
- Improve and increase enforcement measures that discourage slow, incremental and incomplete responses from public agencies to open records petitions and requests.
- Develop education programs for citizens to understand open government laws and policies in their states and communities.
Daniel Bevarly, Interim Executive Director, National Freedom of information Coalition (NFOIC) 573.882.4856
George Freeman, Executive Director, Media Law Resource Center (MLRC) 212.337.0200
Mark Horvit, Executive Director, Investigative Reporters and Editors (IRE) 573.882.2042