FOIA shouldn't be us vs. them

This article originally appeared in the Richmond Times-Dispatch, Friday, March 18, 2016

Here’s a two-question test for you:

Question 1: Are government employees and public officials (a) always trying to hide something, or (b) of the purest hearts and noblest of actions?

Question 2: Is the “public” (a) always trying to stir up trouble, or (b) of the purest hearts and noblest of actions?

In my line of work, I hear from lots of government folks and citizens who wouldn’t hesitate for a moment before choosing answer (a) for those on the other side of a request for public records. These same people would hesitate only slightly before choosing answer (b) for those on the same side of that request.

I’ve been around long enough to know that the choices are really caricatures that very few people actually fall into. Most fall along a spectrum, and most of them fall in the middle.

So it makes me wonder just how many high-tension transactions over public records could be alleviated if the parties exchanged hats and looked at a records request as an interaction between two people, instead of two rivals.

If citizens wore the hat of the government employee, they would see that more often than not, these are people who are trying to get the job done as best they can. They are people. They have bad days and good days. They have multiple deadlines and responsibilities. They have bosses who may be watching over their shoulder. They may be afraid of messing up and getting in trouble. They may not know the law as well as they wish they did.

If government employees and officials wore the hat of the citizen requester, they would see that more often than not, these people seek access to records to help make sense out of something that is happening to them. They are people. They worry about their communities. They are concerned about the impact of decisions on their families. They are making their requests when they get home from work and often with limited funds. They may not know the law as well as they wish they did.

At the risk of alienating my friends in government service, though, I’m going to ask that they spend more time trying to see things from the citizens’ perspective because, well, government literally holds all the cards (records). The citizen can ask, and she can kick up a stink if procedures aren’t followed or records aren’t released, but unless and until a judge rules otherwise, she cannot compel the government to turn over records.

So, my government employee/official friends, think about what it would be like if your town suddenly implemented a day, once a month, where everyone had to go around naked. Compliance with Naked Day will be monitored by the Enforcer. Waivers are available at the mayor’s sole discretion.

Naked Day has come as quite a surprise to you (you work in another town, you see, so you have no inside knowledge of how the decision was made) and, not surprisingly, you have some questions. As a citizen, what would you want to know?

Who’s idea was this? How much is the Enforcer getting paid and what are her powers? Who was granted or denied a waiver? Have there been any citizen complaints? How has local tax revenue been impacted, since fewer people are eating out or shopping on Naked Day?

So, you go to the town and you ask for records that would help you answer these questions: email, invoices, individual salary information, budget reports, waivers, complaints.

And that’s when you encounter a government employee who is closer to the (a) choice above than the she is to (b). She dithers, she tells you you can’t have salary information, she refuses to release the budget reports, she cites exemptions that don’t apply to the waivers, and says it will cost at least $1,000.

As a citizen, how would you feel about these responses?

Of course this is an outrageous example, one where no one would doubt your concerns as a citizen or your right to see the records related to this ridiculous decision. And yet, the same responses to records requests have been given to citizens over far more mundane topics.

I’ve had a government employee tell me that she refused a business’ FOIA request for a list of vendors that exhibited at a local festival. She didn’t want those vendors to be solicited by the business.

I’ve seen an email where a government employee urged colleagues to withhold records because she didn’t like the requester. And I’ve seen records that are usually disclosed withheld because they were about the misbehavior of a public official.

None of this should happen. And by depersonalizing requests for records, incidents should be fewer and farther between than ever. Instead of theorizing about why a requester wants a record, or worrying about what she’s going to do with it, the best FOIA responders are the ones who look at a request as just another box to check on the to-do list. A request is a request is a request.

Now, I’ve also seen some citizens shout “conspiracy” simply because they’ve been charged for records and others who have assumed they were denied records because they were perceived as being troublemakers. This is where citizens should depersonalize the transaction, too, by not automatically searching for an ulterior motive when records are somehow denied.

It may sound like a contradiction to ask government and citizens to both depersonalize a request and to remember the other’s humanity, but really they go hand in hand. By acting by the Golden Rule and not jumping to the conclusion that someone intends the other harm, both sides can make FOIA the conversation about access and government accountability that it is supposed to be.