Access 2006 conference, as reported by Becky Dale
Access 2006 Conference
November 17, 2006
Library of Virginia
First Panel: FOIA in other states and countries
Moderator: Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press
Panelists:
Charles Davis, executive director of National Freedom of Information Coalition
Frank Gibson, executive director of Tennessee Coalition for Open Government
Barbara Petersen, president of (Florida) First Amendment Foundation
Lucy Dalglish asked Charles Davis to describe five scary things, five positive things in regard to access to information in the states. Davis started with the positives.The Good:
1. There are now 46 FOI coalitions in the states. Only 10 years ago there were less than half that many. The model is being replicated in states. Wyoming is now starting a coalition. Virginia is testimony that these coalitions help set the tenor and tone of the conversation on access law.
2. The rise of the access council. Many states now have ombudsmen or councils to help citizens with access. They are vitally important. The FOI coalitions have helped bring these state councils about.
3. Reform at the legislative level. There’s been substantive reform of FOI laws, led by FOI advocates. We are now finding out about bills before FOI law is gutted. Some states are making statutory mandates for FOI training. In Texas all appointed and elected officials must do 1 _ hours of FOI training. There’s an interactive DVD for clerks in small government offices. What a sight to see: 1,000 people in a ballroom receiving FOI training.
4. More people are paying attention to open government. Tongues are wagging. FOI is at the top of the agenda for Knight Foundation. It used to be an academic topic.
5. International FOI is booming. There’s a FOI revolution around the world. Mexico, some African countries are models to us. Nova Scotia coalition has just been started.
The Bad:
1. Every day Davis is receiving a call from a reporter or citizen about privacy-related exemptions to FOI law. Hundreds of bills focus on "protecting privacy." Only about 5% achieve their purpose. They instead protect us from knowing about our government. They’re trying to protect names, addresses, and salaries of public employees, even titles. How much we pay public employees should be public knowledge. It’s almost like we have no history. Secrecy is not privacy. "Privacy" is an abused term.
2. Deliberative process privilege. Imitating the vice president, local and state officials are claiming executive privilege. It’s one thing for the vice president to claim it, but inappropriate for county commissioners. It’s like "trickle down executive privilege." They’re trying to protect names, calendars, agenda items when county officials meet with anyone. Executive privilege is a common law privilege that can be lawyered in. Governors in five states are claiming it.
3. Pricing issues, especially on electronic records. Officials try to protect documents from the public by putting high prices on them. Pricing is being abused.
4. Federal preemption of state FOI laws, taking discretion from state and local officials over whether they can release records. There’s federal creep over state laws.
5. Apathy. Outside this room, few people are interested in access to records and meetings. We need to talk about access issues with the VFW, Rotary, etc. We should talk to people who don’t care, those who are opposed to access.
Florida is often cited as having the best FOI laws. Dalglish asked Barbara Petersen if things are still rosy in Florida. Are exemptions creeping in? Petersen said during the legislative session, it looks bad. There are about 150 bills filed for exemptions. But only about 5-10 pass. She has created a searchable database of the more than 1,000 existing exemptions in Florida law. Florida has great FOI law because of its constitutional guarantee for access to meetings and records which applies to all three branches of government. Any exemption proposed has to meet constitutional standards. It used to be that in a 900 page bill, an exemption ("oh by the way, all meetings are exempt") could be thrown in on p. 392. No more. All exemptions must be in a single subject bill. Much easier to track them now. If an exemption is hidden within another bill, it’s unconstitutional. Furthermore, exemptions must meet these conditions:
1. There has to be a statement of public necessity; it must be factually specific
2. The exemption may be no broader than the stated purpose
3. A 2/3 vote in each chamber is required for passage
These conditions have had a dramatic impact in the House; the level of debate has risen. Lots more deliberation and debate now. In the database she was shocked to find that Florida has 1058 exemptions. But there’s a trend toward reform. Many exemptions are redundant, unnecessary. These exemptions are very narrow but we don’t need 1058. The fact that there are so many gives her opportunity to complain "we have 1058, we don’t need 1059." What makes a real difference is to have a champion, someone who takes on FOI as their issue. The new governor coming in to Florida is so good on open government. The tone and tenor changes immediately when there is a champion for open government. Hopefully this attitude will splash over into the legislature. Dalglish commented that 500 media lawyers were all excited over the recent election, that Nancy Pelosi has championed transparency.
Dalglish asked Frank Gibson about his view on the outlook for FOI. He said he felt like he was in an AA meeting: "I’m Frank and I come from a bad FOI state." His group is trying to make changes. Tennessee’s coalition is modeled after Virginia’s. They’re trying to establish an advisory council. They’re using Virginia, New York, and Indiana as models. Problem is the speaker of the House is against them. Indictments in a bribery sting caused a drumbeat for new ethics law. The press was blamed for that clamor. FOI law needs reform but he’s hoping to get an advisory council established first that can then lead the efforts for statutory reforms. TN has 230 exemptions.
Dalglish pointed out some resources for information. Pamphlet available on the table outside has survey of 20 16 states. The Reporters Committee provides legal defense/advocacy for journalists. On rcfp.org is Open Government Guide, a state by state summary of FOI laws. Pennsylvania has hideous records/meetings law. Tom Curley of the Associated Press is leading an effort to get reform in PA.
In response to question on Florida’s constitutional guarantee, Petersen said that it’s very effective. About 4 or 5 states have guarantees but the value depends on the language used. In Florida private companies doing business on behalf of government are subject to FOI. Courts can’t make exemptions or exempt court documents. Florida’s guarantee is a great help in challenging exemptions. Exemptions have to go through a constitutional filter and many proposed exemptions are weeded out before becoming law. Officials have a constitutional duty to give citizens access -- that makes FOI responsibilities take on a new meaning. The 1993 constitutional amendment made a world of difference. The requirement for a 2/3 approval passed in 2002. Asked about how hard it was to get that 2/3 requirement, Petersen said it was a resolution filed by a freshman legislator, John Carassas. It didn’t pass the first year. Next year the speaker needed Carassas’s support on something and Carassas asked that his bill get to the floor. It passed 119-1 in the House, was unanimous in the Senate. On the statewide ballot, it got 87% approval. It was due to Carassas’s initiative, his disgust with how the legislature treated FOI bills. Story illustrates how a just one champion for FOI can make tremendous change.
Dalglish noted that on the RCFP hot line, she’s noting an increase on calls about criminal justice. A police department was trying to make officers anonymous. They want to protect addresses, who’s a police officer. There’s a movement to make pre-conviction or certain post-conviction records secret. Davis noted federal laws to protect privacy, concern about "stigmatization." We’re so worried about hurting someone’s feelings. It’s a smokescreen. We must aggressively enter the conversation and point out the fallacies about "stigmatization." Secret police are anathema to democracy. Dalglish said she’s testified on behalf of electronic access to court records. In Minnesota, there was a move to not only keep records off the Internetnot post records on the Internet, but to not make them available at all. She made her points but was followed by a bishop who spoke for 20 minutes on stigmatization. Petersen said in Florida there was a bill to automatically expunge all non-judicial arrest records, basically arrests that were a mistake. Why should it be public record, it was asked. But there is no oversight if we expunge the record. If we shield information about these "mistakes," we won’t know that mistakes are being made. It’s important to be able to know if the police are abusing their power. Home addresses of certain categories of employees are protected and more and more agencies are asking for such protection. The Guardians Ad Litem wanted it and were to meet with her to talk about an exemption. Petersen found their addresses in the phone book, online on whitepages.com and when they came into her office she handed them maps to their homes. Why is it justifiable to close access to public records when the information is widely available elsewhere? If they really needed protection, they wouldn’t have their information in the phone book. Gibson noted a similar situation where there was concern about the privacy rights of some police officers. But information on several officers was posted right on the police website.
In response to a question about complaints related to abuses of FOIA procedures, Davis told a story about person who asked for an audit report and was told there were no records responsive. How could it be that they don’t review finance records? It turned out they didn’t call them "audits," but "financial reviews." So sometimes a requester has to call back, rephrasing the request in other language.
Petersen noted that in Jeb Bush’s administration, there were complaints about delays in getting records. Some agencies required reporters to go to public information officers (such a requirement violates the law) while citizens could go to anyone. There was legislation that tried to shorten the time for responding to requests -- Jeb Bush vetoed it. She would like to see reform of languages on fees. We’ll all going to be fighting about fees.
Davis noted that we can get too reliant on FOI. It can be excuse for not getting things. He told story about reporter asking HUD for number of contracts (related to Katrina) and was told there was no information. Reporter then said he’d be reporting that "you guys don’t know." That got their attention: "I’ll fax it to you now." That works for reporters but what about citizens? Gibson recommended giving them names of friendly reporters. Petersen tells reporters to contact citizens who’re having access problems. Reporters are always looking for good stories. Dalglish noted that sometimes citizens have more access than reporters. In Maryland government employees were banned from talking to the Baltimore Sun. There was similar situation in Palm Beach. There’s nothing in the law that says government has to talk to reporters.
What can reporters do to help? What doesn’t help are hysterical anchors doing "look at all the information available on you in public records" stories. Some reporters cover FOI as a beat. Dalglish noted that Cox News Service has Rebecca Carr who only covers secrecy issues. Associated Press, thanks to Tom Curley, has put access issues front and center. But newsrooms are being whacked, staffing decreased 25% in last 18 months. So in most cases the Sunshine Beat has to be part of other beats. The best subgroups of reporters using FOIA are military reporters/editors, environmental/science reporters, state capitol reporters, and health care reporters. This is the third year for Sunshine Week, which is an offshoot of Sunshine Week in Florida. There are thousands of stories then. That’s a way of getting information and ideas to newsrooms. Gibson noted that problems are deeper at the state level. Readers don’t care, newspapers not interested in records battles. People fighting FOI battles are nuts, they think. Petersen responded: But did the fight with government make them nuts? Reporters’ interest often carries on after the legislative session. Davis mentioned a blog that solicits "hot documents." Petersen creates mini-seminars for newsrooms. Reporters often don’t have information on FOI laws.
Asked about the Delaware case, on citizen-use-only FOIA laws, Dalglish said a business publisher in New Jersey wanted information from Delaware and was told, you’re not a citizen of Delaware, go away. He won the case. The Third Circuit threw out the Delaware law (federal jurisdiction because of the Commerce clause, law limits political speech). Several other states, including Virginia and Tennessee, have similar laws. Would be nice if legislature cleaned it up. Someone David Vladeck, a Georgetown University law professor who represented the Delaware man, is seeking plaintiffs in other states to challenge the laws.
Chip Woodrum made the point that VA law is distinguished from Delaware’s in that VA law allows out of state media to request records. But he said the law is probably not legally defensible.
Asked about application of FOI to the judicial branch, Petersen said there’s a battle in Florida over the issue. Courts’ records exemptions must go through the legislative process. The issue of online records caused all hell to break loose. There’s now a moratorium on online records and the court is struggling to identify exemptions that apply to court records. Problem is clerks of courts want to make money from online records. The access community is in between the clerks and the courts. She’s identified 42 exemptions that apply to court records. It’s been a mess. But the courts are supportive of open government.
Chip Woodrum made the point that VA law is distinguished from Delaware’s in that VA law allows out of state media to request records. But he said the law is probably not legally defensible.
Second Panel: State models for resolving disputes through mediation
Moderator: Frosty Landon, executive director of Virginia Coalition for Open Government
Panelists:
Patricia Gleason, general counsel in Office of Florida Attorney General
Bob Johnson, executive director of New Mexico Foundation for Open Government
Camille Jobin-Davis, assistant director of New York State Committee on Open Government
Frosty Landon introduced the topic: Is mediation a good alternative to courts?Not everyone in government is bad. VCOG supports the model of the ombudsman, of informal mediation to resolve disputes. Litigation should be the last resort. VA courts historically have been hostile to FOI cases. They can cost $50,000, $100,000 and end up with no satisfactory solution, or can be decided the wrong way, making bad law. Lots of folks in government want to do the right thing. VA is the only state that has an ombudsman in the legislative branch. Other states with them have them in the AG office or the executive branch. There was skepticism to creating VA’s FOI Council: "I’m from the government and I’m here to help." The AG office: "Richmond second guessing us?" But six years later, the skeptics have been proved wrong. The office is low budget and provides year round consideration of issues. It’s like a permanent study commission. Now agencies that have issues with FOI can bring them to this forum. The office serves as a facilitator, but does not mediate disputes, which was Woodrum’s idea for it on the floor of the House. The statute does not include language specifically authorizing mediation, however., despite lack of language on mediation in the statute.
Patricia Gleason is a mediator in the Florida AG office. She said the mediation is an informal process but it works. She has about 120 cases a year and 75% of them are resolved in support of granting access. Why does it work?
1. The courts established that only the legislature can create an exemption. Decisions are not up to bureaucrats. The issues are often clear cut.
2. People sometimes don’t do things they should. Staff in agencies may not like the requestor. But in Florida, if you lose a FOI case, you pay. Government had to pay $250,000 to St. Petersburg Times. That’s a motive to consider something other than court. There’s the risk of being responsible for attorney fees for the other side if government loses its case in court.
3. The AG’s office doesn’t represent state agencies in FOI cases. They’re on their own. The AG office favors access. It would be a conflict to represent agencies on these issues. So they have to use their own attorneys or outside counsel. At budget time, questions come up of why agencies are spending all this money on lawyers on FOI cases instead of just turning over records.
How the process works: People contact her in most cases. Some are referred by Barbara Petersen. Many times government has trouble getting information from another government agency or someone is charging too much. There are plenty of cases from people calling in.
Bob Johnson has had 22 lawsuits in 20 years, winning every one. But he too views litigation as a last resort. Lots get settled without litigation. The AG office in New Mexico has some lawyers who specialize in access laws. They hold seminars for public officials in different cities. Media and citizens can attend too. The seminars result in resolution of some complaints, some new members for the New Mexico Foundation for Open Government (FOG). The legislature in New Mexico is hostile, despises newspapers. Government espouses open government but the administration has been the most secretive. AP correspondent was shunned. FOG has been co-plaintiff with newspapers when there has been no other resolution. They’re careful, using the courts only when there is no other alternative -- that’s why they’re so successful. FOG has reputation as responsible, taking problems seriously. Judges know who they are. In the third suit against the Dept. of Public Safety, an AP correspondent asked for dispatch logs in connection with a crime. Police denied access. There are privacy rights for murderers? Judge ruled that dispatch logs are public records. DPS ignored the ruling. In New Mexico, unfortunately, it’s almost like the secret police. Now the state police are saying they don’t keep desk logs. All these things led to another suit. They’ve tried to persuade the police to cooperate. But there was no response, so they had to go to court. Sometimes the AG tries to defuse cases; FOG has conversations, asking agencies to comply. But it doesn’t always work. Litigation is a useful education tool.
Camille Jobin-Davis described the New York State Committee on Open Government. They don’t mediate. They provide legal advice verbally and in writing to anyone seeking opinions. They had 903 opinions in a year. The value of the New York office is that they’re available. A phone call is returned within an hour. They are an immediate resource. Bob Freeman’s long tenure in office is remarkable. It’s not just his opinion but his reputation that helps sway people. It’s takes a champion to change the tone and tenor. New York has a broad definition of public records and that’s valuable. There’s a presumption of access. Localities can’t do their own ordinances. The New York office is "cheap and easy." They answer questions at no cost. Their opinions are persuasive. The integrity of the office means they’re loyal to the law, not to agencies.
Three recent changes in New York:
1. In 2003 time frames for responding to requests was were tightened up. Agencies have five business days, and then if they need more time, they have another 20. If they still need more time, they have to give reasonable grounds for the delay. This helps insure that agencies are responsive.
2. Attorney fees are an enforcement tool. Prior to 2006, fees were awarded only when there’s a general public interest in the records. Because of the Beechwood case, the law was changed. Attorney fees are now awarded if there was no reasonable basis for denying access and if agencies fail to respond in time.
3. Public bodies are now required to respond to e-mail requests for records. And to give records in electronic form if they’re available. A question came up: we have a copier that can make PDF copies. Do we have to make them if we can? Yes, you do.
In response to question, Jobin-Davis said Freeman on occasion calls agencies when citizens denied access. Mainly they provide people with opinions already written. They have no authority to intervene in cases. But when agencies aren’t responsive, people can tell the world that they were denied records.
Does the AG office represent agencies? Depends on the agency. In New Mexico the AG is counsel for many agencies, but some have their own attorneys. Johnson pointed out that mediation doesn’t change the law; only court cases do that. Gleason said that the Florida AG is on the cabinet and they are motivated to resolve cases and not spend money on losing cases. FOI cases go to the top on the docket and judges, having to hear a sudden FOI case, tend to be annoyed with state agencies, not the newspapers. The agencies better have good reason for denying access. In Florida the law is so strong, the consequences for being wrong as so enormous, that agencies are not inclined to drag things out or go to court. Mediation works because both sides want voluntary resolutions. Sometimes government is not sure whether to release a record. With the AG office mediating, they’re assured they won’t get in trouble for releasing a record, because after all they’re just doing what the AG office says to do. What is most helpful is that the policy makers may not know what staff is doing, potentially subjecting them to costs for not complying. So the AG office can say "Look what they’re doing" and the case is quickly resolved.
In response to question, Johnson said FOG doesn’t take on cases they don’t think they can win. Their involvement gives cachet to local suits. But they’re selective in what they sign onto.
In response to question, Gleason said they close cases in three weeks but she has no staff other than an assistant. There’s no money so mediation is done over the phone, sometimes in a conference call. She will call the lawyer for the agency and ask if they’re interested in mediation. There’s no conference at a table. She gets an inquiry and she knows whether the agency is right or wrong. If agency is right, she can explain it to the citizen. If the agency is wrong, she can tell the agency’s attorney "Look at this." The attorneys are savvy and explain things to the staffers. Cases are resolved in less than 24 hours.
Landon noted that the Virginia Beach FOI office resolves a lot of cases, calls Maria in gray areas and agrees to accept her opinion, whatever it is. That’s a great attitude to have. Woodrum noted that Virginia Beach’s approach is what legislators envisioned for FOI.
Petersen noted that in Florida if there’s a violation of meeting law, any action taken in the meeting can be voided. But you have to sue. Mediation won’t stop an illegal meeting, you have to use litigation to do that.
What about ombudsmen on the federal level? Is U. S. Justice Dept. the right place? No good answer. Petersen noted that whoever is out of power wants more access. Anytime the public has a person who believes in access, understands what agencies should do, it’s always a good thing. Good to know how to navigate through the system.
Gleason said she gets results not because she’s a good mediator but because the law is so strong and consequences are so damaging. Two new cabinet officers are asking for information on FOI before they take office; they want to do the right thing. Media audits are good, where news media goes to government offices asking for records. The results are astounding. Government doesn’t want to look stupid in the newspaper. She tells people in seminars: "They’re coming. Reporters disguised as citizens."
Jobin-Davis said even with a small staff in the New York office, they can make a difference. The independence of the office is important. No one dares remove Bob Freeman.
Election of VCOG officers
After the second panel, new officers for VCOG were elected:Wat Hopkins, president
Dorothy Abernathy, vice president
Ed Jones, secretary
Harry Hammitt, treasurer
Lucy Dalglish, at large member
Mark Grunewald, at large member
Chip Woodrum, at large member
Tonda Rush, at large member
Don Richards, VAB seat
John Edwards, VPA seat
Jesse Todd, VPS VPA seat
Third presentation: Municipal transparency
Suzanne Piotrowski, assistant professor of public affairs and administration at Rutgers University-Newark
Suzanne Piotrowski is working on a research project, studying components making local government more transparent in New Jersey. She defines transparency as the ability to find out what’s going on in government. She identified the following avenues of access:Open meetings
Proactive dissemination
Requester model
Whistle blowers
Leaked information
Transparency involves more than just FOI. Governments disseminate information in libraries, online, in newsletters. Requests for records can be formal or informal. New Jersey has 566 municipalities, some only a mile square, one town right up against another. New Jersey has a culture of secrecy ("ethically challenged"). A state ethics commission has just been set up. They’re concerned about how much ethics problems are costing. In her research she’s conducting interviews to get perceptions on transparency, what’s important. She’s talking to good government groups, journalists, city administrators, clerks, attorneys.
Preliminary findings are that websites are good conduits for transparency. Newsletters, cable TV are good. Too much information (clutter) can hide real issues. Not all towns have websites. But it’s good to have ordinances, contact info, forms for making FOI requests on websites (forms now required for FOI requests). Open meetings are important. Components affecting transparency in meetings include public comment period, public debate, notice of meeting, agenda, minutes (councils often behind on getting them done), the time of the meeting (people can’t get to meetings at 5:00 p.m. but they can get to them at 8:00 p.m.), the size of the room, executive sessions, whether people can hear, taping of meeting, Roberts Rules. Components affecting transparency in records: informal vs. formal request, form of response, fees, response time. Can you search documents? You may get tons of data but if you can’t search it, that limits its usefulness. Other factors playing into transparency:
Document retention and storage. State agency helps localities with retention issues.
Administrative culture (fines rarely imposed)
Gadfly factor (gadflys keep councils on their toes)
Local media (number of newspapers)
Organization resources
Political competition (fewer people watching when there’s lack of competition for council)
She’s planning to develop a transparency index to help answer questions like are bigger or smaller towns more transparent? Does the form of government make a difference?
Question from audience: Are there hotlines to call? Not in New Jersey. Petersen noted that whistleblowers come to her because they can’t go to the agency for fear of losing their job and so she will make a records request for them.
Audience comment: Council person once told her that they follow Roberts Rules, not FOI. She advised that they better follow FOI. Piotrowski noted that gadflys know how things are supposed to run and so they can monitor procedure.
Megan Rhyne noted that sometimes she hears from citizens who’ve been told records don’t exist. She can point them to retention schedules on Library of VA website and they can see whether the retention schedule is being violated. There’s no fine but they could tell the library Library of Virginia about the problem. The schedules also help them narrow request for records by describing what kind of records are kept. Piotrowski says record retention is better now in New Jersey. Clerks can be liable if they don’t supply records they’re supposed to have. There’s more attention to what’s kept or disposed of.
Question from audience: Is she measuring public confidence? No. No funding to survey that. Judicial branch is often cited as having most public confidence but we know the least about it.
Last panel: FOIA’s interplay with federal statutes
Moderator: Harry Hammitt, editor/publisher of Access Reports
Panelists:
Maria Everett, executive director of Virginia Freedom of Information Advisory Council
Tonda Rush, American PresswWorks
Harry Hammitt has been working with Charles Davis on several papers. First one was on privatization. This is the second one: Federal Controls on State Information Disclosure: FERPA, HIPAA and DPPA (copies available at conference, from NFOIC). At the federal level there’s a halfway decent chance for FOIA to be amended this next year. Tends to happens every 10 years or so. It’s due for amendment. FERPA, HIPAA and DPPA have the common element of regulating dissemination of personal information. HIPAA is a product of Health and Human Services. DPPA resulted from the idea that people use information from drivers’ records for bad things. Rebecca Schaeffer was murdered by stalker who got information from a private investigator who got it from her driving record. Anti-abortion groups were getting information from license plates and harassing people. But it’s not clear that there was a real problem just because information was available. FERPA gives privacy rights on students’ records. Why? Somewhat unclear. But it’s had a dramatic impact on universities. FERPA often is the primary reason for not disclosing information. In the 80’s universities were refusing to disclose information on crimes on campus. Law was changed so general incidences of crimes must be disclosed. As for disciplinary information, you can have only certain law enforcement records. Quasi-judicial information is not available. An institution that discloses records contrary to FERPA can lose federal funding. But no institution has ever lost funding. It’s a hollow threat. But schools comply with it.
HIPAA protects medical information that’s personally identifying. It’s the least understood of these statutes. Hasn’t been explained well. It only applies to records created by health providers. Doesn’t apply to police.
DPPA shut down access to drivers’ records but there are a myriad of exemptions. Auto industry, insurance, private investigators can get the records. A private investigator can get information only to the extent that its client is entitled to it. Hammitt’s paper has overview of litigation on DPPA. Data brokers can get information for a client like an insurance company but not for general public. Direct marketers originally were allowed to get information, unless people had opted out. But then the law was amended so that permission has to be given first. So that’s shut down bulk mailers from getting the records. Florida decided not to implement the amendment to DPPA and was hit with a class action lawsuit because they had disclosed records. Hammitt commented he doesn’t like any of these statutes. They predate identity fraud issues. But concerns on identity theft are driving these kinds of laws.
Hammitt said he disagreed with Everett’s 6/14/01 opinion on student directory information (Everett said GMU did not have to release student e-mail addresses). There’s no violation of FERPA if those records are disclosed. Because directory information is pointed out as being outside of FERPA, Congress was giving a green light to disclosure, not a red light. Maria said she has no authority to interpret FERPA, was only repeating what Family Policy Compliance Office said, that schools had discretion. FERPA says "may," not "shall." Hammitt pointed out that FERPA doesn’t prohibit disclosure, just imposes a cost if records are disclosed. A judge would not interpret FERPA as a prohibition. Everett said VA law exempts scholastic records from disclosure, with directory information as a carve out from the exemption.
Before DPPA, DMV records generated income for the state. What has VA lost? Everett noted that other VA statutes govern how DMV information is released, so they trump FOIA. VITA packages government information and sells it. They work with DMV.
Hammitt said there’s been little litigation on HIPAA. States’ public records acts would enter into the balancing question. Texas and Kentucky AGs, and Ohio and Texas courts have said that state public records acts trump HIPAA if state law allows it. Everett commented that our health records exemptions relate to content, not to who’s holding it.
Tonda Rush said that HIPAA surprised the press. It didn’t look like it would affect public records. But now it has closed doors for reporters. They can’t find out who was in accidents, if they’re still alive. HIPAA has turned accidents into private events. Health and Human Services has no sympathy for the press. Now we’re getting no news from hospitals and the health care industry is frustrated that the media are not covering hospitals. It’s not practical to get permission from victims. Stories move on. The public is missing out on parts of the story. Scary thing is it allows people to disappear in the health system. We’ve closed the doors on finding out about medical experiments, surgery room problems. If a drunk attacks a doctor, a nurse can tell police and give his name. But if a doctor attacks a drunk, the nurse can’t tell anyone. It would violate the person’s privacy. HIPAA covers institutions filing health claims electronically. Doesn’t cover those that file claims by mailing in paper forms. Rush is not hopeful for improvement in access to medical information. Editorials on how awful it is that private information is available don’t help the situation.
Rush then talked about possibility of amending federal FOIA. It was the Democrats who gave us HIPAA, FERPA, DPPA. Both parties believe in open government but make exceptions for personal privacy and national defense. These are not partisan issues. Congress supports FOIA. They look on it as Congress vs. the executive branch. Ideas being talked about:
1. Denying agencies exemptions if time limits are not met. This isn’t practical. Need a better sanction.
2. Ombudsman. Good idea. Court is expensive. It would be good to resolve disputes in agencies or somewhere. Congress likes the idea.
3. Attorney fees
To follow developments on amending federal FOIA, here’s a good website: sunshineingovernment.org
Question from audience: How does federal government get jurisdiction over medical records, driving records? Hammitt said DPPA was found to be unconstitutional in one circuit but not in other circuits. Then the Supreme Court said Commerce clause gave federal government jurisdiction. Drivers’ information was widely distributed in commerce. Congress has a legitimate interest in health information because they’re encouraging doctors to move information across the country electronically. Rush noted that federal government regulates health insurance.
Question from audience: Does FERPA extend to other records? Like donors? Case law is clear that FERPA applies only to student records, not to teachers. There’s been some litigation on donor records. A Kentucky court ruled that donor information is protected by Kentucky law. Is student information protected forever? Once a student, always a student? Wisconsin found that FERPA doesn’t apply to applications if applicants don’t become students. HIPAA has been found to apply past death. It protects autopsy reports. Under common law privacy rights are extinguished at death. But privacy rights after death can be someone else’s. National Archives v. Favish. In the early 80’s Jack Landau of the Reporter’s Committee was testifying before a Senate committee, and Sen. Hatch objected that if information that his mother was a prostitute came out after her death it would be as invasive to her privacy as if it came out before her death. Landau responded that he wouldn’t object to making an exception to provide privacy after death for senators’ mothers who are prostitutes. Clery Act requires disclosure of crimes on campus. Congress could have expanded this to include disciplinary cases but didn’t. Unless Congress opens up records, you can’t get them by litigation.