Report's recommendations are universal

There is a pretty remarkable open government story coming out of Memphis this week. It concerns a report commissioned by the city’s mayor to review the city’s public records system.

The Plough Foundation prepared the report after interviewing more than two dozen city employees, news media representatives and open government advocates.

The report makes findings specific to Memphis within the context of Tennessee’s Public Records Act and it makes several broad recommendations, with sub-recommendations under each.

Setting aside the parochial findings, however, it’s clear that both the recommendations and the context from which they spring have universal appeal. It is the same context we find ourselves in in Virginia, and the recommendations would make sense here as well as in every other state of the union.

To start with, the report notes that while a healthy tension between government and the media is “expected and beneficial,” citizens and the process suffer when that tension becomes “an authentic tug of war.”

In Virginia, I receive many calls and emails from reporters and from staff on the other side of the counter who seem suspicious of every single move the other makes. Citizens, too. All too often a FOIA request starts from a position of mistrust and frequently escalating from adversarial at best to petty and mean-spirited at worst.

Further, the report notes that staff works “tirelessly to meet the requests which have increased dramatically in this election year” and most requests are filled on time. I have no reason to doubt that this is the case in the Commonwealth, too. Admittedly I usually get called when the process is NOT working so I don’t get to hear how often the process works exactly as it should. Then again, my phone would be ringing off the hook if there were constant problems.

But it is the report’s recommendations that I find the most compelling. In fact, about the only criticism I can think of is that the mayor probably could have saved himself and the city some money by talking to the Tennessee Coalition for Open Government. Like VCOG, TCOG hears from people on both sides of the counter and knows first hand the challenges each face. (TCOG Director Deborah Fisher was one of the people interviewed by the Plough Foundation.)

The recommendations are broken down into categories, from leadership and oversight to training to use of technology. One recommendation under the first category is to “relocate the responsibility for public records requests from the law division to the executive division.”

At first blush, this appears to be a Memphis-specific recommendation. I’m not sure what or who constitutes the executive division. But I can attest to the fact that when lawyers are overly involved in the FOIA process, it ends up costing the government because the attorneys are dealing with FOIA instead of reviewing contracts, drafting agreements and doing other lawyerly duties, and it costs the citizens because the lawyers charge more for their time than do other government employees. For sensitive requests, by all means bring in the legal talent, but delegate the routine requests to others.

Another recommendation is to “appoint a public records ombudsman to oversee the process and resolve disputes.” In Virginia we have the FOIA Council, but that body cannot resolve disputes. Wouldn’t it be great then if there were a local contact person whose job it was to know the ins and outs of FOIA and be able to tell an employee, citizen or reporter when his/her interpretation of what FOIA requires is incorrect?

The report recommends not charging for labor costs. Virginia law, of course, allows the government to charge for the “actual cost” of providing the records and that includes the pro rated or hourly charge of the employee who fills the request. This wasn’t a problem 15 years ago when the people filling the requests were usually lower-level managers or employees who did not pull down a high-figure salary.

But of late, those labor costs have been climbing ever steadily upwards. I have a few theories on why this is:

• Budgets: When budgets were flush, governments could afford to hire someone at a lower salary level who was perfectly capable of filing FOIA requests. Now, when budgets are tight, there are fewer employees and they’re being asked to do more, and that means higher paid employees are being asked to do FOIA requests.
• Lawyers. As a non-practicing attorney myself, I do not at all begrudge them their salaries, especially knowing that government attorneys have foregone more lucrative pay in the private sector in service to the public. But as noted above, when they are involved, the price of a FOIA request goes up.
• Email. More and more requests for records these days involve access to email. It’s never quite as easy as we like to think since we can search our own email archives in seconds. But when it’s the email archives of hundreds of government employees, many of whom use email as the default method of communication, and when you’re talking servers, backup tapes, archives, etc., we’re now drowning in a sea of email. Frequently an information technology specialist is required to pluck out the requested records, and IT folks don’t come cheap. 

Though many will disagree, the report calls labor charges “the price of doing business” and argues that “taxpayers have essentially already paid for the labor” through their taxes. On the other hand, the report suggests that the public be informed about what the cost of filling requests actually is, which it is hoped will “encourage citizens to be more specific in their requests.”

Another broad category for recommendations is to upgrade public records technology. Yes, yes and double yes! Invest in technology that allows online archiving and redaction of email, put records online and make them easy to find, apply for grants to implement technology systems from Bloomberg Philanthropies and the Sunlight Foundation. And speaking of the Sunlight Foundation, the report recommends adopting the organization’s open data policy guidelines.

The report includes categories on police departments and local ordinances or executive orders. The grand finale in my mind, though, is the recommendation to develop mixed training curricula with government employees, the press and (I’ll add) access advocates. Too often each group gives their FOIA training in an echo chamber without giving a thought to the expectations, challenges and limitations of the other side.

When I give FOIA presentations to government employees I let them know what citizens hear when they get a FOIA response that says it will take 12 days to find a current five-year comprehensive plan. When I speak to citizen groups I let them know that the people filling the requests are human beings with good days and bad days just like them. When I speak to media groups I remind them that they enjoy a level of access that citizens don’t have.

As the report concludes, all the people interviewed have “a genuine desire to ‘get it right.’” That is certainly the case here in Virginia. And the more we talk to each other about how the law is and isn’t working, the better the chance that we too will get it right.

Read the full report on the TCOG website: http://tcog.info/files/2015/05/Open-Records-Memo-4-30-15.pdf