Knight Foundation grant allows VCOG annual conference to bring in experts to explore nationwide themes
Open-government trends around the country was the theme du jour at VCOG’s annual conference, held Nov. 17 at the Library of Virginia. It was the coalition’s eighth annual conference, and third to be held in the Richmond area.
Thanks to a grant from the John S. & James L. Knight Foundation, the coalition brought in experts from all over the country to explore current bright and dark spots in the open-government dialog, litigation versus mediation, and the interaction of federal privacy laws with state FOI laws. There was also a presentation by Rutgers University-Newark Associate Professor Suzanne Piotrowski (a James Madison University graduate) about the development of a model to assess transparency in local government.
Lucy Dalglish, VCOG board member and head of the Reporters Committee for Freedom of the Press, moderated a lively discussion among three FOI veterans: Charles Davis of the National Freedom of Information Coalition; Frank Gibson of the Tennessee Coalition for Open Government; and Barbara Petersen of Florida’s First Amendment Foundation.
Davis started out by identifying five positive FOI trends he’s seen, including the existence or soon-to-be creation of 46 statewide coalitions similar to VCOG and the “FOI revolution” happening around the world.
He also noted five negative trends, including the steady march of privacy-related exemptions, and the abuse of the term “privacy,” as well as the abuse of the allowable fees charged for electronic records.
Petersen described some of the aspects of her state’s law and culture that made Florida the Sunshine State for access advocates, not just tourists. She noted any proposed exemption must pass standards articulated in the state constitution and must be passed by a super-majority of the legislature.
Gibson represented the other side of the spectrum, saying he felt like he was at an AA meeting: “I’m Frank, and I come from a bad FOI state.” He noted the house speaker was against open government, which makes reform hard, but also noted that a recent spate of bribery indictments has more people thinking about new ethics law, of which FOI should be a part.
Frank Gibson, left, Charles Davis and Barbara Petersen compare highs and lows of access issues around the country at VCOG’s 8th annual conference: Access 2006.
VCOG Executive Director Frosty Landon moderated a panel on methods of resolving FOI disputes. Bob Johnson of the New Mexico Foundation for Open Government said his group used litigation to resolve disputes, and has been extraordinarily successful: 22 cases and 22 wins in 20 years. He admitted the losing government entities did not always comply with court orders, but he said NMFOG’s track record has prompted many other potential plaintiffs to approach the group to help lend credibility to their ongoing battles.
Camille Jobin-Davis, assistant director of New York’s Committee on Open Government (the office after which Virginia’s FOI Advisory Council is modeled), said her agency did not get directly involved in disputes, but that the office’s authoritative opinion helped sway people. Jobin-Davis credited her boss, Bob Freeman, who has headed the committee for 20-plus years, and whose reputation for fairness and integrity has proved persuasive over the years.
Pat Gleason of the Florida Attorney General’s office explained that her job was to get FOI disputes resolved. She did that through mediation, she said, even if mediation meant just picking up the phone and calling both sides separately. Without resources dedicated to mediation, Gleason and her assistant have still been able to resolve around 120 cases a year, 75 percent of which are resolved in favor of access.
Gleason also noted that Florida’s law, with its stiff penalties (including possible jail time) frequently persuades recalcitrant agencies to turn over records they are withholding.
(In December, Florida Governor-elect Charlie Crist tapped Gleason to head the newly formed Office of Open Government to ensure compliance with open-records laws and train public employees on the topic.)
Bob Gibson, center, discusses litigating FOI disputes in New Mexico, while Pat Gleason, left, and Camille Jobin-Davis look on.
Harry Hammitt, VCOG board member and publisher/editor of Access Reports, used a white paper he released that day, in conjunction with the NFOIC, to launch a discussion of state FOI laws and their interaction with three federal privacy laws: the Family Educational Rights and Privacy Act (FERPA), the Drivers Privacy Protection Act (DPPA) and the medical privacy regulations portion of the Health Insurance Portability and Accountability Act (HIPAA).
He explained how each law came into being, how they were used and misused, and what trends he saw in their future application. FERPA, for example, does not prohibit disclosure; instead it says a school can lose federal funding if it discloses certain student records. Maria Everett, head of Virginia’s FOI Advisory Council explained, however, that Virginia’s FOIA had an exemption for records that mirrored language in FERPA, so that the withholding of these records was justifiable.
Tonda Rush, VCOG board member and president of American PressWorks, drilled down deeper into HIPAA’s inner-workings, and also speculated on how the new Democrat-controlled Congress may affect open government. On the one hand, a Democrat, Sen. Patrick Leahy of Vermont, is leading the charge to amend the federal FOIA and possibly create an FOI ombudsman; on the other hand, it was the Democrats who gave us FERPA, DPPA and HIPAA to begin with.