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Our pals over at MuckRock have been working not only on FOIA at the federal level (MuckRock co-founder Michael Morisy is a colleague of mine on NARA’s FOIA Advisory Committee and was highlighted last month on the FOIA Ombudsman’s blog!). They’ve also been working on FOIA/open records at the state and local levels. Check out their new 4-part series “What’s the state of state public records law?” written by Jessie Gomez.
Over the last nine months, our FOIA Fellow Jessie Gomez has been looking at public records law across the nation through our State of State Public Records Law project. Today, we’ll be exploring the major takeaways from her reporting.
Primarily, our coverage has dealt with ambiguities within records law, barriers to access, legislative efforts to reform state records law, and the notable players that have made transparency a reality. Our series will take a look at all of these components and their contributions to your state’s law…
…Public records law has become an integral part of keeping our government accountable. Although it can oftentimes be difficult to navigate, its effect on democracy has been worth the battle.
A new administration has led the public to begin asking questions about their government and know more about its role in their daily lives. With a growing interest to keep those in power under close watch, FOIA and the public records system will remain a powerful tool.
As for the actual system, it’s no surprise that records law continues to face challenges in unlocking information for the pubic. However, ongoing conversations to reform both FOIA and state public records law have led to changes at the local level and reforms in states like California, Massachusetts, and New York.
Although it can seem like the state of public records law isn’t getting any better, so long as that conversation is ongoing, requesters can rest assured that it is headed in the right direction and will continue to evolve.
NARA embroiled in politics surrounding documents re Supreme Court nominee Kavanaugh. The public loses.
I’ve been trying to get my head around the very public wrangling of the release of archival records relating to Judge Brett Kavanaugh. The National Archives (NARA) is in the process of releasing “Approximately 900,000 pages of email and paper records were requested by Senate Judiciary Committee Chairman Senator Charles Grassley.” But democratic Senators Diane Feinstein and Chuck Schumer are accusing NARA of withholding documents relating to Kavanaugh’s time as Staff Secretary under President George W. Bush. NARA has responded by saying that it is “longstanding and consistent practice” to respond only to requests from the Chair of Congressional Committees. Senate democrats have submitted FOIA requests for the remaining documents and are threatening to sue NARA if the FOIA request is denied.
Regardless of how many documents are released and made available to the Judiciary Committee, Chairman Grassley has scheduled the committee hearing for September 4, 2018, long before NARA says it will be able to finish its work. NARA says it expects to complete its review of the first roughly 300,000 pages by August 20, and the remaining 600,000 pages by the end of October. It’s unclear whether a lawsuit to release additional records will cause the committee’s work to be postponed.
Lost in all of this political wrangling (on top of the political wrangling whereby republicans blocked President Obama from nominating someone to the Supreme Court during his term) is the fact that the American public, regardless of political leaning, is losing out on really knowing the person being nominated for a lifetime position on the US Supreme Court, effecting the US political system for at least a generation to come.
Politics is a vicious game, but the nomination of a Supreme Court Justice shouldn’t be left to the will of pure partisanship. The public needs to have access to ALL of the records regarding Judge Cavanaugh’s public work, and the committee should have time to “advise and consent,” to understand the nominee’s record, deliberate, and appoint judges.
Feinstein wrote to archivist David Ferriero in a letter obtained by CNN on Wednesday, criticizing him for his narrow view of the law used to justify denying Democrats the documents. Democrats are set to begin meetings with Kavanaugh, President Trump’s nominee to the high court, after the August recess.
“Under your overly restrictive reading of the Presidential Records Act, minority members of the Senate Judiciary Committee now have no greater right to Mr. Kavanaugh’s records than members of the press and the public,” the California senator wrote.
“I ask that you reconsider the position set forth in your August 2 letter,” she continued. “These records are crucially important to the Senate’s understanding of Mr. Kavanaugh’s full record, and withholding them prevents the minority from satisfying its constitutional obligation to provide advice and consent on his nomination.”
Democrats are pushing for the federal government to release all documents created during Kavanaugh’s time at the White House, roughly three years during the George W. Bush administration when he served as staff secretary. Republicans have accused Democrats of seeking to delay Kavanaugh’s nomination with the request.
On July 31, 2018, the National Archives received a request from the Senate Judiciary Committee’s Ranking Minority Member Senator Dianne Feinstein and the other minority members of the committee for Judge Kavanaugh’s Staff Secretary records, which number the equivalent of several million pages. However, this request does not meet the requirements of section 2205(2)(C) of the Presidential Records Act, as the Archivist of the United States David S. Ferriero explained in an August 2, 2018, letter to Senate Minority Leader Charles Schumer. On August 6, 2018, Senator Feinstein asked the Archivist to reconsider this position, and the Archivist responded on August 10, 2018.
As noted in both letters, since the Presidential Records Act was enacted in 1978, the National Archives longstanding and consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which political party is in power. For the same reason that the National Archives was not able to respond to Senator Feinstein’s request, the agency also declined to respond to the requests by Republican Ranking Members for Presidential records during President Obama’s Administration.
This very nice “how-to” article provides an example of how “public records” are much more than the published record of governments.
- How public records can shed light on private prisons, by Beryl Lipton, Muckrock (October 6, 2015).
The details of our prisons typically are and have been matters of public record, if one only knows how to ask. Data-driven snapshots of whole segments are difficult to obtain, but not impossible. Even for-profit prisons, whose status as private corporations make them notorious for being exempt from public records laws, can’t hide everything they’ve got. Some information must find its way back to the government bosses.
Read the CRS Report “Records in the Digital Environment” in conjunction with this recent report from the Office of the Information & Privacy Commissioner for British Columbia “A Failure to Archive: Recommendations to Modernize Government Information Management”. The report outlines the huge and growing problem that the BC government has on their hands. There was a policy change 10 years ago in which records responsibility was shifted to the Royal British Columbia Museum complete w an expensive fee schedule for transfer. This has resulted in 33,000 boxes of records accumulating in a warehouse rather than be deposited in the BC Archives.
Long and short of it is that governments at all levels around the world are not keeping up with their archival responsibilities to the detriment of the public’s right to know.
Archiving is a public good. Records about key actions and decisions of government must be preserved in a lasting historical record for future generations. Without a comprehensive public archive, access to information and the ‘right to know’ is significantly and severely impaired.
[[Steven_Aftergood|Steven Aftergood]] over at the Federation of American Scientists (FAS) Project on Government Secrecy to (which you should all subscribe!) recently posted this CRS Report describing access to federal records over time as “increasingly complicated, costly, and potentially impossible.”
We really appreciate Mr Aftergood’s work over the years to shake loose and make publicly accessible government documents and especially CRS reports which are in the public domain but not distributed to the public or to FDLP libraries. Here’s more on CRS reports.
Thanks also to Sabrina Pacifici at the beSpacific blog for posting about it (and you should all subscribe to beSapcific too!).
Retaining and Preserving Federal Records in a Digital Environment: Background and Issues for Congress. Wendy Ginsberg, Analyst in American National Government. July 26, 2013
“All federal departments and agencies create federal records “in connection with the transaction of public business.” The Federal Records Act, as amended (44 U.S.C. Chapters 21, 29, 31, and 33), requires executive branch departments and agencies to collect, retain, and preserve federal records, which provide the Administration, Congress, and the public with a history of public-policy execution and its results. Increasing use of e-mail, social media, and other electronic media has prompted a proliferation of record creation in the federal government. The variety of electronic platforms used to create federal records, however, may complicate the technologies needed to capture and retain them. It is also unclear whether the devices and applications that agencies currently use to create and retain records will be viable in perpetuity—making access to federal records over time increasingly complicated, costly, and potentially impossible.”