Is it becoming harder to peak behind the veil of government secrecy? To make sure that sunshine laws continue to illuminate the inner workings of government bodies? David Cuillier suspects so.
As a journalist, academic, and former president of the Society of Professional Journalists, he’s built a career around freedom of information. As director of the University of Arizona’s School of Journalism, he researches trends around access to public records and strategies for increased transparency. In recent research, for example, Cuillier found that many freedom of information experts believe that public access is worse today than four years ago and that nearly nine out of ten think it will get worse in the future.
We recently spoke with Cuillier to see if those fears are being realized. A transcript of that conversation follows, lightly edited for space and clarity.
Logikcull: Can you describe, from your perspective, what you think the environment around FOIA is right now?
David Cuillier: Well, it continues to get worse. I think in most respects, there are bright spots here and there, but overall in the big picture I think it's getting worse at the state, federal, and local level for a variety of reasons. It's the gradual inertia of bureaucracy that gravitates to secrecy. It’s just natural and without forces to push back against it, it's just going to continue to grow.
"There are bright spots here and there, but overall in the big picture I think it's getting worse at the state, federal, and local level."
So that's what we're seeing nationally in most respects. We see more types of records being withheld by agencies expanding exemptions to make things secret. We're seeing laws eroded so they're less effective. For example, the fees that could be charged for records seems to be expanding. If you charge a lot of money for someone to look at a public record, a lot of people won't be able to pay it and so they won't look at it. That effectively causes more secrecy. We have laws that have very little enforcement provisions. The agencies can just tell people ‘no’ and they know that nothing will happen, so the agencies are more likely to break the law.
There are excuses about technical barriers, as well. So, agencies will say, “We can't provide that information in a relational database. Sorry, it's proprietary software and we’re unable to export it for you.” These kinds of excuses continue to grow.
Then, of course, there are public officials who want to avoid embarrassing records getting out that would get them fired or put in jail. So often they’re using excuses like privacy exemptions, national security or law enforcement investigations, etc. It just keeps getting worse and I think agencies in the past nine months have become more brazen in saying ‘no’ to requesters.
Logikcull: You say that there is expanding use of exemptions and more types of records being withheld. Can you give me some examples of what those exemptions are?
Cuillier: Probably the most used exemption at the federal and state level would be over privacy. There are a lot of people concerned about their personal privacy and it's easy for legislators in Congress to make things secret in the name of privacy. For example, universities will say that people can't look at their parking ticket data because it would invade a person's privacy.
Privacy by far is probably the most used exemption overall.
National security is rarely used—even at the federal level it's just a smidgen of reasons for denial. Most states and the federal level have a catch-all exemption that’ basically says, “anything else under statute.” Well, that includes a lot now because Congress and legislatures have adopted a lot of little additions here and there throughout their codes to make things private; so it's kind of an easy catch-all. As a result, a lot of stuff is secret.
Law enforcement is a big area. It continues to be a problem for citizens and journalists to get information. There is often overuse of the investigatory exemption. They often say, “If we give [certain information] out it's going to hurt our investigation.” But really, they should give everything out and redact the details that would harm the investigation. Everything else should be public. That's how the law is in most states, yet they don't treat it that way.
The other area is often internal deliberations or deliberative process exemptions where they want to keep insider stuff secret to promote more candid discussion internally. But if they keep that secret, we'll never know how the sausage is made. That's often an excuse to keep emails and other forms of agency communication secret. That's a big gray area that continues to be litigated over.
Logikcull: You mentioned on the federal level agencies becoming more brazen with what they withhold and don't provide under FOIA. Can you expand on the changes that we're seeing now that the Trump administration is not just in power but has established itself?
Cuillier: I've heard anecdotally that some agencies have become more secretive, although I'm not working on the ground in that realm. The FOIA data that [journalists and researchers] collect that records quantitatively this sort of stuff isn't out—won't be out for a long time. So, we can't really know for sure quantitatively what's changing. Right now, we really can only rely on anecdotes. The Transactional Records Access Clearinghouse at Syracuse University has been trying to track FOIA litigation in the past nine months and we see it continued to spike, numbers-wise. That doesn't necessarily mean that the government's more secretive; it could just mean people are more riled up and more willing to sue. We don't really know for sure what's changing.
In talking to journalists, they’ve said that in general it is getting trickier to get information out of the government. I think that's trickling down to the state and local level. They take their lead and if they say, “It works at the federal level and we could do it.” We are already seeing that now governors and mayors and others applying similar tactics as our current president: blasting the local newspapers as ‘fake news’ and ignoring their requests for interviews and whatnot. It's spreading anecdotally, as we’re seeing.
"In talking to journalists, they’ve said that in general it is getting trickier to get information out of the government."
Not to mention, the Committee to Protect Journalists has been tracking this since January on the Press Freedom Tracker. They're trying to collect examples of all of this. It's a daunting task to try to track these things because there's not really a consistent way to do that, but they're trying. I'm not sure what we're up to now. I imagine we're close to a hundred incidences of trying to squelch the press—and some of that covering public records.
Logikcull: How would you respond to the critics who say that public records requests are often unnecessary, self-serving, or unreasonably burdensome? People from the federal side argue that, but you also hear that a lot on the state and municipality level where you don't have the same experience or infrastructure built up to deal with these requests. What would you say to those concerns?
Cuillier: They're right. Sometimes you have some gadfly's frequent filers who are a pain in the butt. Their motives are maybe to harass, because they hate government or they want to just twerp with them. Maybe they have legitimate reasons in their minds that they want to give them information that's important. Regardless, the reason doesn't matter. It's just a part of doing business as a government. It's not fun, it's not sexy, it's not glorious, but it is just a function of government. Government agencies need to fund it appropriately just like they would fund their electricity, garbage disposal, or benefits for their employees. It's just a part of doing business in democracy, in a republic.
They really just need to quit their whining and do their jobs. I know that sounds kind of harsh but we need to understand that what was a part of our democratic fabric.
"It's not fun, it's not sexy, it's not glorious, but it is just a function of government. Government agencies need to fund it appropriately..."
Our founding fathers thought that it was incumbent upon government to print their actions and send it out on wagons out to all the hinterlands in the Wild West so people could know what their government is up to. That's what they did and it eventually led to the Federal Depository Library Program—the thinking being that our government should get that information out to people at no charge.
That only started changing over the past 30-40 years. The whole concept of user fees started really picking up steam, so people starting to think people who use that service are the ones who should pay, nobody else. People thought people who go to parks, for example, should pay a fee. Nobody else have to pay for that park. It’s not right applying that thinking to public records because you want to have a system where anybody can see what their government is up to at any time and as many times as they want. That's just good governance.
Logikcull: Speaking of, I have a question about government business conducted on private email servers or through private accounts. Hillary Clinton is an obvious example, but it was recently reported that a fair amount of the Trump administration was also using the private email accounts and servers. Some of the concern over such email use is around national security and cybersecurity issues, but there are also huge public records implications. Do you want to talk us through some of those and why these matters?
Cuillier: Absolutely. This isn't a new issue; it's been going around since email first came out. It's basically government officials hiding their actions through secretive channels—that's what it all comes down to.
It used to be that they all gather at the local cafe, you know, and chat secretly and hide everything from everybody that way. Or pick up the telephone and just call each other, talk secretly. That's how it used to be. Now, they just hide things by sending emails on their Yahoo or Gmail account or text each other. Maybe there has been, but I would love to see a study done about this. I'm guessing at least 80 to 90 percent of public officials do this routinely. I assume it's widespread. It's human nature. If they think they can hide something through back-channels, they're going to do it.
We've seen this over the years. Sarah Palin got in trouble the Alaska Supreme Court; they said she couldn’t use Yahoo to send work emails, even though she tried. Former Mayor Kwame Kilpatrick of Detroit got in trouble for trying to text things that he shouldn't have. It's just everywhere.
The bottom line is they just shouldn't do that, whether it's at the cafe or on the telephone, email, or text. When government officials are doing government business, that should be recorded and available for public inspection, assuming it doesn't have exemptions that would allow it to be secret.
If there's no punishment, then people are going to do it. I think they should be fired and/or fined if they break these laws. Otherwise, why stop doing it if there are no repercussions? The political repercussions seem small, except for Hillary's case, but for the most part it doesn't really hurt anybody to get caught doing it. So, they're going to keep doing it as long as that happens.
Logikcull: With FOIA and state analogs, litigation is one of the main mechanisms that the public has to make sure that these laws are complied with, particularly boosted by the ability to get attorney’s fees if you are successful. The AP reported early in September that a lot of government bodies, particularly small municipalities, school districts and the like, are flipping the tables and proactively suing records requesters looking for declaratory judgments that the records don't have to be divulged. What do you think about that trend? Do you think it is a legitimate trend? What are the implications?
Cuillier: I think it's a legitimate trend. I just had a column on that in the Investigative Reporters and Editors Journal. It seems to be increasing and it's really problematic in California in particular, but it's all over the country.
When you submit a public records request to look at information, you shouldn't have to hire an attorney to defend yourself in court. This is really dangerous and they need to stop it, frankly. It goes back 30-40 years. This isn't new and it's dropped off at the federal level. It's not a serious issue at the federal level because they've figured out how to make it reasonable (more or less,) but at the state level it’s still relatively new. It's all over the map and they need to address it.
"When you submit a public records request to look at information, you shouldn't have to hire an attorney to defend yourself in court."
It was a huge problem with college students. This past year, there were several college newspapers that found themselves being sued for requesting information - which can be really intimidating if you’re a college student. All of these students I talked to were actually emboldened by it. It just made them more tenacious. The problem is they have to raise money to defend themselves in court rather than spending that money on new computers, travel, or things they need to do their jobs.
Logikcull: Even if they're successful, they don't get attorney’s fees in these cases, right?
Cuillier: Often that's the case. That's a big gray area. This is being in the adjudicated in California right now. There are pending cases that can set things right or make it wrong. So, we're all watching California see how that shakes out. It's going to be a continuing issue.
It’s chilling. I've talked to journalists who are reluctant to submit public records requests because they're afraid of the reverse FOIA. That tells you that we have a problem.
Logikcull: Before we end, I want to talk a bit about fax machines. There was an outcry a few years ago when the Pentagon's FOIA fax machine broke down. They said they weren't going to replace it. Then in February you had the FBI saying that they were going to revert to fax machines and snail-mail for their FOIA requests. I think outside of the Telephone Consumer Protection Act—which lets you very lucratively sue people for faxing you—I don't think I've ever seen fax machines play such a prominent role in a major federal law. What does that tell us about the state of FOIA and technology?
Cuillier: The technology is way behind where it should be when it comes to accessing government information. I think they're just using it as an excuse, again, another barrier—that was very obvious with the FBI. I think agencies will game the system as much as they can and using technologies as an excuse is pretty convenient.
A lot of agencies do have bad technology. They're behind the times and they really could get up to date, but if that's a reason why they can't provide information, then that should be the what we’re focused on.
If a city or an agency can’t provide information because of technological reasons then that just shows they're poorly managed because technology is so available. It’s pretty easy and anybody now could put data online and visualize it using free tools, such as Google Fusion Tables. Anybody can do this. A sixth-grader can do it. If agencies use these as excuses for why they can’t manage records then I'm very skeptical. I think either they don't care or they’re just making up excuses.
Logikcull: One final question. What advice would you give for those submitting public records requests and conversely for those responding to them?
Cuillier: There’s a lot of advice. For requesters, it's really important to just be persistent and tenacious and not accept denials on face value. Just keep at it. Push hard and advocate for legal change. Get involved. That's really important.
On the agency side, I think they need to work hard at providing information proactively. If we have to ask for information then it's a failure in system; it should just automatically be put out there online as soon as it's generated with the appropriate redactions. If we get to that point, then I think we're where we need to be. But until then people shouldn't have to beg, borrow, steal, or arm-wrestle to just see what their government is up to.
This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
