Knight Foundation gives $2M to help open government

The Knight Foundation is putting $2 million into helping state open government groups and launching the Knight FOI Fund. TCOG Executive Director Frank Gibson, who is also the president of the board of directors of the National Freedom of Information Coalition, is quoted in the press release:

Knight Foundation Helps State Groups Take Up Freedom of Information Lawsuits

Knight Foundation Helps State Groups Take Up Freedom of Information Lawsuits

Media companies involved in fewer FOI legal actions

Columbia, Mo. (Jan. 4, 2010) – The John S. and James L. Knight Foundation has approved a new $2 million, three-year grant to the National Freedom of Information Coalition to launch the Knight FOI Fund and support state open government groups.

The Knight FOI Fund will provide up-front costs such as court costs, filing and deposition fees, if attorneys are willing to take on a pro-bono basis cases that otherwise would go unfiled.

“Media companies have for generations taken on the lion’s share of the legal work surrounding freedom of information,” said Eric Newton, Knight Foundation Vice President for Journalism Programs. “But as media economics restructure, new approaches are needed. The National Freedom of Information Coalition is in a position to seed and lead new approaches.”

In the past decade, the coalition has grown into a network of state freedom of information advocates. Groups operate in nearly every state. Its members include citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys. Its mission is to foster open government at the state and local level.

The NFOIC is housed in the Donald W. Reynolds Journalism Institute at the Missouri School of Journalism.

In the coming year, the NFOIC will launch:

* The Knight FOI Fund, a litigation effort that will provide support for the up-front costs of bringing freedom of information lawsuits to court.
* A round of challenge grants to help state coalitions raise more local money.
* A newly designed web site that will help revitalize the state FOI movement.

“Many efforts to improve and preserve freedom of information and keep government open to the public would have been impossible in the past without the support of Knight Foundation,” said Frank Gibson, executive director of the Tennessee Coalition for Open Government and president of the NFOIC board of directors. “This grant will help NFOIC and our state coalition partners expand that work at the state and local level.”

The economic crisis and the evolution of the news media have resulted in declining levels of FOI advocacy, according to the results of a survey of media attorneys conducted this year on behalf of the NFOIC by the Media Law Resource Center.

The study showed that while litigation is slowing as a result of the shifting media economy, the worst may be yet to come, as the level and intensity of FOI work on behalf of the news media slows—not only in terms of litigation—but also in terms of FOI requests made and informal appeals of denials.

The results were alarming: 53 percent of respondents said that the frequency of open government violations has increased in the past two to five years, while less than a third said that reporters in their jurisdiction have increased the number of FOI requests they are making.

When it comes to the resources devoted to seeking legal compliance with open government laws, the survey clearly illuminates the erosion of the media economy. More than half the respondents (53 percent) said that resources have decreased. Thirty five percent reported that resources have decreased substantially.

That decrease in resources translates to fewer legal interventions. Some 42 percent of respondents reported that the number of instances in which their firm had intervened in an open government matter for media clients had decreased over the past two to five years.

Without local media serving as the enforcement arm for sunshine laws, open government advocates believe more government officials will deny public access to public information.

For more information on the program and the FOI litigation issue, as well as the result of the MLRC survey, please visit http://www.nfoic.org/knight-foi-defense-fund.

The John S. and James L. Knight Foundation advances journalism in the digital age and invests in the vitality of communities where the Knight brothers owned newspapers. Since 1950, the Foundation has granted more than $400 million to advance quality journalism and freedom of expression. Knight Foundation focuses on projects that promote community engagement and lead to transformational change. For more, visit http://www.knightfoundation.org/. Last fall, the Knight Commission on the Information Needs of Communities in a Democracy released its national report. It concluded that information is as vital to the healthy functioning of communities as clear air, safe streets and good schools. For details, see http://www.knightcomm.org.

The National Freedom of Information Coalition is a national network of state freedom of information advocates, citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys. A unit of the Missouri School of Journalism, the NFOIC is an affiliate of the Donald W. Reynolds Journalism Institute. Its mission is to foster government transparency at the state and local level. NFOIC is based at the University of Missouri, home to the nation’s oldest Freedom of Information Center. For more, visit http://www.nfoic.org/.

TCOG speaks out on Murfreesboro police records closure

Murfreesboro Police tried to cut off access to many police reports but later backpedalled. TCOG Executive Director Frank Gibson was quoted on the matter.

From the Daily News Journal:

Frank Gibson of the Tennessee Coalition for Open Government, though, said the potential for abuse by the Murfreesboro Police Department if the measures are re-implemented is high.”It appears the MPD is overreaching and trying to protect information that doesn’t at all deserve protection,” he said. “The public has a right to know every time a crime is reported.”

Don’t forget to follow TCOG on Twitter at @TNOpenGovt to keep up with all the latest TCOG news.

TCOG chief speaks out against school board camera policies

TCOG Executive Director Frank Gibson has been quoted by Tennessee media criticizing a recent move by some school systems to restrict access by people with cameras to school board meetings. Read more via Nashville’s WSMV-Channel 4 and The Oak Ridger newspaper.

TCOG weighs in on Clarksville airport board’s private meetings

The airport authority board has been meeting behind closed doors, The Clarksville Leaf-Chronicle reports. TCOG Executive Director Frank Gibson is quoted:

“I’ve never heard of that particular exemption being applied to a public agency, which the Airport Authority would be.”

Gun rights advocates seek to keep public in dark on permits

From Executive Director Frank Gibson’s column in today’s Tennessean:

The furor over Gov. Phil Bredesen’s veto of the so-called guns in bars bill would be comical if it and related issues surrounding gun-carry permits were not so serious, but there’s more to the story than allowing 220,000 Tennesseans and millions of gun permit holders from other states to carry their weapons into places where alcohol is consumed.

Read the entire piece here.

Free speech, press freedom at risk in Tennessee

By Frank Gibson

Tolerance is in short supply nowadays.

That is obvious in two situations where the First Amendment is under assault in Tennessee. Basic freedom of speech and expression and the right to publish are in a crossfire and face threats of prior restraint.

One was taking place at press time in a Knox County criminal court. Attorneys for four defendants in a gruesome murder case are trying to stop the News Sentinel from posting public comments on its Web site about their clients. The sometimes harsh and somewhat uncivil commentary also has been aimed at members of the legal team.

It’s the First Amendment rights of press and speech against the Sixth Amendment right to a fair trial, with a twist. Defense attorneys are challenging the paper’s practice of not requiring that Web commentators identify themselves as clearly as letter writers.

Editor Jack McElroy and his attorney, Rick Hollow, are fighting the defense motion as is WBIR, the local Gannett TV station.

McElroy, in a recent column, tried to explain the difference in standards. One is a guest commentary selected for publication. He likened the posting of comments using only the writer’s screen names to early commentary, including the Federalist Papers, which appeared under the name “Publius.” McElroy explained the newspaper’s Web sites receive 50,000-60,000 comments a month and said any effort to verify the identity of everyone would keep many comments out of the public conversation and community bulletin board.

The other controversy was playing out at press time in the halls of the General Assembly. No fewer than 10 bills were filed to close all contents of 220,000 state gun carry permits. Most would punish the “unauthorized publication” of permit information with a misdemeanor fine up to $2,500.

One bill to made publication a felony, punishable by jail time, was withdrawn by the sponsor, but it showed the emotion and anger of gun rights advocates.

The felony bill, a holdover from last year, represented a new wrinkle in previous, longstanding efforts to close the records. It got some steam from The Tennessean’s decision to post the gun carry database, even though the data was taken down hours after it went up. That bill died in a House subcommittee in 2008.

The state attorney general issued an opinion during the last legislative session, pointing out that the penalty provision could make the legislation “vulnerable” to legal challenge as an unconstitutional prior restraint under the 1971 Pentagon Papers case.

The legislation was filed again this year and another firestorm erupted when the shooting death of a Memphis man drew attention to a database The Commercial Appeal had posted two months earlier.

One motorist, a permit holder, was charged with second-degree murder in a road rage argument with someone who parked too close to his SUV outside a Cordova restaurant. The victim’s three children witnessed the shooting, a Memphis TV station reported.

When the presence of the database came to light, the newspaper and its Web site were bombarded with calls and Web postings. One editorial on the topic generated more than 300 reader comments after the National Rifle Association posted a release on its Web site.

Gun rights advocates argued that posting their name, town of residence, year of birth, dates of issue and renewal violated their right to privacy and interfered with their Second Amendment right to bear arms. That was an odd claim, given the fact all permit applications clearly state the information becomes a public record upon submission.

Speaking of tolerance, one editorialist at a newspaper near Memphis opined that the legislation was a “direct response to the blatantly irresponsible use of handgun permit information” by the Memphis paper. At least one other editorial piled on, despite the lack of any evidence to support NRA claims that the information would cause harm. In a Valentine’s Day editorial, The CA argued for keeping the records open: “The public, for any number of reasons, simply has a right to know who has been issued a permit to carry a handgun in public, just as it has a right to know who’s licensed to practice medicine and who knows enough about the law to represent clients in court.”

The newspaper later used to the database to show that dozens of Shelby Countians had been given permits or allowed to keep them despite long criminal records for robbery, assault and domestic violence. The state revoked some permits based on the paper’s reporting.

Most of the problem was caused by courts not reporting felony convictions and domestic orders of protection to the state and because the state lost access to the FBI crime database for 18 months in 2006-2008, making complete background checks difficult if not impossible.

Now, back to this shortage of tolerance. It’s hard to image any state with two cases of this magnitude going on at the same time.

That sent my mind flashing back to my year of First Amendment study at the University of Michigan Law School under Professor Lee C. Bollinger. It was the same year he published his book The Tolerant Society. Some may remember Bollinger, who as the president of Columbia University caught a lot of flak for inviting the head of Iran to speak at Columbia a year or so ago.

Bollinger used as a framework in one course a 1978 free speech case called Village of Skokie v. National Socialist Party of America. It involved efforts by a neo-Nazi group to get a permit to march through the predominantly Jewish Chicago suburb and home to several Holocaust survivors with their swastikas.

The Supreme Court upheld the “constitutional validity” of restrictions on prior restraint. Making the case even more fascinating was the irony that the American Civil Liberties Union successfully represented the Nazis despite the loss of millions of Jews in the Holocaust.

The cases also sent me back to the writings of my friend, Dr. Dwight L. Teeter, the former UT dean and co-author of the widely-used communications law text subtitled Freedom and Control of Print and Broadcast Media.

One of the most profound observations in Teeter’s book states: “The Pentagon Papers case underlines the important truth that no freedom is ever won, once and for all.” “Each freedom has to be re-won by each succeeding generation.”

Teeter quotes senior federal Circuit Court Judge Harold R. Medina: “Some people may think that leaders of the free press would perhaps accomplish more if their claims of constitutional right were less expansive. I do not agree with this. I say it is their duty to fight like tigers right down to the line and not give an inch. This is the way our freedoms have been preserved in the past, and it is the way they will be preserved in the future.”

These two Tennessee examples may not rise to the national level of national judicial import as Skokie or the Pentagon Papers cases, but they are serious threats.

I don’t mean to suggest that anyone should do anything just because it is legal and they can. That sort of arrogance only invites trouble.

One of my favorite historical figures, certainly the most quotable, was Benjamin Franklin, who died the year before the Bill of Rights was ratified in December 1791. Some of his words of wisdom are relevant in the current circumstances, even if completely out of context.

“A small leak can sink a great ship.”

“We must, indeed, all hang together or, most assuredly, we shall all hang separately.”

And, perhaps the most appropriate: “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

There are many ways to protect the Sixth Amendment rights of the four people facing murder charges without infringing on the free speech rights of citizens to comment and the News Sentinel’s right to publish. Hopefully the judge is balancing those interests and recognizing the possibilities of a change of venue or picking jurors who have not read the comments on the News Sentinel Web site.

We have tried to show members of the General Assembly there are better alternatives than closing gun permit files from public and press oversight of that program. There are certainly better ways to balance the concerns of gun owners and the public without trying to punish disclosures that might show that permits are going to some people who shouldn’t have them.

Those solutions will take some balance and more tolerance than we’ve seen lately.

FRANK GIBSON is executive director of the Tennessee Coalition for Open Government. He can be reached at (615) 202-2685 or at fgibson@tcog.info.

East Ridge wants public to keep secret about public records

TCOG Executive Director Frank Gibson was mentioned in a Chattanooga Times-Free Press story about the city of East Ridge wanting the public to pledge not to copy, discuss or publish the city attorney’s billing statements if the city allowed people to see them.

Lawmakers seek to make e-mail confidential

TCOG Executive Director Frank Gibson was quoted by the Knoxville News-Sentinel in an opinion piece about how some state legislators don’t want a conservative think tank to get hold of “screen shots” of their e-mail inboxes.

Legislators seek to close gun permit records

The move comes after publication by the Commercial Appeal of a database of Tennessee gun permit holders. TCOG Executive Director Frank Gibson has been quoted in numerous stories on the issue, including this one by Scripps.

Tennessee’s new records law: ‘Net improvement’ but far from perfect

By FRANK GIBSON

Changes the legislature made to the Public Records Act will solve several problems reporters and citizens faced in the past when they asked to see or copy open records.

Some changes will produce immediate and tangible results but are far from perfect.  Others are more nuanced and will take longer.  And, despite an arduous three-year process, some issues remain unresolved. That means we’ll have to continue to look for solutions and opportunities to fix those problems.

The Office of Open Records Counsel and the new Advisory Committee on Open Government provide vehicles to keep the dialogue going so we don’t have to wait so long for improvements.

We had to make compromises along the way, and it will take some time to tell how well things work under a new regime. From the calls we’ve gotten in recent months, my sense is there has been a net improvement.  Some cities have already adopted new records policies in line with the 2008 changes.

It will take more education on all fronts – for those in government, the press and the public.  The OORC had 40 presentations under its belt in the first months of operation.

The Tennessee Press Association, TCOG, the OORC and ACOG need to know about problems you encounter before we can fix them.

OLD PROBLEMS

Before July 1, we had an open records law with three basic provisions with one major omission. On paper it seemed simple, but in practice it was vague, complicated and wanting.

The law didn’t include a definition of public records.  Fearful and hesitant public officials and employees would demand that reporters “show me where the law says that I have to show you that.”  That was impossible because the law isn’t structured that way.

The law said records were open for inspection during regular business hours unless “otherwise provided by state law.” “Otherwise” refers to more than 250 exemptions, spread throughout volumes of state and federal law, rules and regulations informally approved by the legislature and the courts, and something vaguely referenced as “common law.”

You had a right to get copies of anything you had a right to see.

And, the government had a right to make “reasonable rules” on providing those copies.

In reality, people were told to go away, schedule an appointment, or that they had to put their request in writing.

Some cities and counties were passing ordinances that said citizens must pay for a public employee’s time to see routine and readily accessible records.

The only way to challenge actions unauthorized by the legislature was to go to court.  In Memphis, reporters’ requests were ignored for weeks and months until a backlog of unfilled requests forced the Commercial-Appeal to sue.  It took seven months for the newspaper to get a set of records the FBI got on computer disks almost immediately.

Record custodians could refuse to give a reason for denying a request or for removing allegedly “personal” information. The law said “unless otherwise provided by law,” but the law didn’t require the city to cite an exemption or explain their actions until they got before a judge. There were cases where records got turned over an hour before a scheduled hearing in court.

The legislature had never defined “reasonable rules” so some agencies used that vague language to control every part of the process.

“Reasonable rules” was used by a public utility to charge $95,000 to notify its customers that a newspaper had asked for their address and phone number.  The state Supreme Court later ruled that out of bounds.

Years later, the same utility was demanding $1.50 a page for copies of 2,500 tree-trimming complaints or $38 an hour for an employee to pull out of a computer so a reporter could simply “inspect” them. Six blocks away, the state Administrative Office of the Courts was charging 7 cents a page.

The utility’s lawyer proudly told a legislative committee “we’re not in the public records business.”

NO GOOD CHOICES

Citizens and the news media often paid excessive fees because it was cheaper than calling in a lawyer.  Fees were just low enough to make a lawsuit not worthwhile.  Anyone could sue but the risk losing was great. A judge was not likely to define “reasonable” if the legislature hadn’t seen fit to do so.

You could only sue in Chancery Court and crowded court dockets could delay the critical first hearing for weeks.

A third option was drop the story.  That happened in the tree-trimming example because the story was not worth $8,400, even though the utility was obviously ignoring the law.

When someone asked to see a record with a piece of confidential information, custodians would copy the original, redact the information, and charge for copies that not been requested.

In some large volume requests, custodians would try to charge 25 to 50 cents a page for hundreds of paper copies when the information was available on an inexpensive CD.

The missing ingredient in simple disputes was an independent third party – someone besides a judge — to tell custodians and citizens what the law said.

There was no list of exemptions to check whether something was open or closed.  A media attorney and I were asked hundreds of times whether a particular record was open. It happened so often that the Tennessee Coalition for Open Government had to post an unofficial list of exemptions on www.tcog.info. You can find it on “The Law” page.

An overall problem was the lack of any process for record custodians and citizens to follow and the absence of any independent oversight.  The OORC gives some of that now.

CHANGES TO THE LAW

• To fix the biggest omission the legislature added a definition of public record to include anything “made or received pursuant to law or ordinance or in connection with the transaction of official business.” And to ensure understand that it covered electronic records, the definition says “regardless of physical form.”
• It retained the “open for inspection” during business hours language but added a requirement that the custodian “shall promptly make available for inspection.”  That should apply to records that are handy, where little effort is required.
• Recognizing that more complex requests might take more time, the law now requires that within seven business days a record custodian must (1) grant the request, (2) deny the request but cite a specific legal exemption, including the basis for redacting certain information, and (3) explain in writing why it will take more than seven days to produce records.  Forms and instructions are at www.comptroller.state.tn.us/openrecords/forms.htm.  State and local agencies can use them as templates.
• Failure to do any of the three “shalls” constitutes a denial and the requestor can choose between Circuit Court and Chancery to expedite judicial review.  He can still ask the OORC for help.
• The statute makes it clear an agency cannot charge to inspect a public record, even if redaction is required. That is reinforced by instructions and forms on the OORC web site.
• We were unsuccessful in getting the “citizen of Tennessee” limitation removed, so a custodian can require a photo ID before allowing you to inspect a record.
• The statute creates the OORC in the state Comptroller’s Office and authorizes it to (1) “informally mediate and assist with resolution of disputes,” (2) answer questions, and (3) issue informal advisory opinions “as expeditiously as possible” to the public, the media, and officials. Call Ann Butterworth/Elisha Hodge at: 615-401-7891 (toll free at 866-831-3750) or e-mail open.records@state.tn.us.
• The law specifies custodians cannot require requests to examine records to be in writing, but they can require written requests for copies or on a form.
• The law – and supporting OORC guidelines — does not require any charges for copies beyond those already in effect for some documents.  It allows copy charges and labor charges above the first hour, but recommends they be in a written policy adopted by the local governing authority. Citizens and journalists should keep up with local developments to ensure local officials don’t exceed state standards and adopt onerous rules.
• OORC guidelines recommend 15 cents per page for hard copies (30 cents for duplex). “Actual cost” above that level must be documented. Some cities have already adopted the OORC standard:  Brentwood abandoned its $5-10 flat fees for offense and accident reports and is considering putting more of them online. Nashville allows the use of personal scanners.
• To encourage everyone to adopt reasonable policies, the law provides some legal protection under a “safe harbor” policy that provides: “Fees are presumed to be reasonable when done in accordance with policies and guidelines developed by OORC and adopted by local governing authority.”
• To collect legal fees in the past, you had to establish that an adverse action was a “willful or knowing” intent to deny access.  That seldom happened, but the statute now says a court may consider whether the custodian followed OORC guidelines.

NUANCES and ‘GUIDELINES’

The legislature mandated the Office of Open Records Counsel, working with the new Advisory Committee on Open Government, to produce a schedule of reasonable charges for copies, a policy on frequent and multiple requests for copies, and a “safe harbor policy for a records custodian who adheres to such policies and guidelines established” by the OORC.

On the initiative of OORC director Ann Butterworth and Open Records Specialist Elisha Hodge, the OORC and ACOG established “Best Practices Guidelines” which are suggestions for responding to requests.

Since the suggestions are coming from an office under the Comptroller of the Treasury, the agency charged with auditing almost every public agency in the state, the power of suggestion may be stronger than otherwise.

ACOG includes representatives from TPA, the Tennessee Association of Broadcasters, TCOG, Common Cause of Tennessee, the League of Women Voters, the Tennessee Municipal League, the County Officials Association, public hospitals, the General Assembly and the state Attorney General.

Here are some highlights of those guidelines.

• The first item under Best Practices is the gentle reminder that T.C.A. 10-7-505(d) says the TPRA “shall be broadly construed so as to give the fullest possible access to public records.”  That’s Tennessee’s presumption of openness.
• It reminds public officials, attorneys and employees that the legislature made the OORC responsible for setting standards and that some official actions can now be measured and weighed against those guidelines.
• The guidelines mention that while governing authorities have the power to establish fees, they can also allow waivers and reductions of those fees.  The Schedule of Fees states clearly that “excessive fees and other rules shall not be used to hinder access.”
• The statute says the Advisory Committee, with assistance of the OORC staff, “may review and provide written comments on any proposed legislation regarding” the open meetings and open records laws.  That means the OORC will be tracking bills, but perhaps more significantly, the opportunity for ACOG members to comment on legislation could help slow down the rate of adding new exemptions.
• We were not able to deal head on with some of the issues involving access to electronic records, but we made some progress in the guidelines and Best Practices.  A records custodian has discretion to deliver records electronically, but to encourage more electronic delivery the Schedule says custodians “shall utilize the most cost efficient method of producing” and time-efficient.
• Nashville’s new open records rule says custodians “shall give the requester the option of receiving information in any format in which it is maintained, including electronic format.”
• If a local agency adopts a written policy allowing labor charges, it can charge only “base salary” (no benefits) after the first hour spent locating, retrieving, reviewing and redacting, and reproducing” requested records. It recommends using the lowest paid person in the department.
• Agencies can aggregate charges for multiple requests for copies, but that applies only when the number of requests exceeds four (4) per month.  To help ensure beat reporters and news organizations are not penalized, the policy does not apply to requests for items “routinely released and readily accessible” – agendas, minutes and such.  City councils, county commissions and other governing bodies can adopt higher thresholds.
• An agency can aggregate by group “if the custodian reasonably believes an individual to be acting in concert with or as an agent of another person, entity, or organization,” but to discourage abuse of the group aggregation concept, custodians must inform requesters they plan to aggregate and advise them they have a right to appeal to the OORC. Custodians also must file a “Notice of Aggregation of Multiple Requestors” with the OORC before they implement that policy.
• One amendment to the statute requires the OORC and other agencies to provide training on the “sunshine” (meetings) law and requires the OORC to collect data on meetings.  That is data we assume would be reported to the legislature and governor in the OORC and ACOG annual reports mandated by the statute.

Frank Gibson is executive director of the Tennessee Coalition for Open Government and FOI coordinator for the Tennessee Press Association.  He can be reached at fgibson@tcog.info or by calling 615-202-2685.