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David McMillen: We have for you a star-studded panel for after lunch. No worries about anyone
not being excited by what is being said here.
We have two representatives from state government, two representatives of the investigative journalists
and a lawyer. We really should have put the lawyer in the middle.
Camille Jobin-Davies: We have two lawyers.
David McMillen: Pardon
Camille Jobin-Davies: We have two lawyers. I am also an attorney.
David McMillen: Because the lawyer always winds up mediating between the public and
the government and that maybe one of FOIA’s great downfalls is putting the lawyer as the
communication between the..
We are very fortunate though to have these representatives to talk about state government.
Is it just a matter of difference in scale? Are the problems the same? Is the difference
because there are 50 or 51 depending upon how you count the District of Columbia, state
governments, each of which has different laws?
What we hope to explore in the next hour or so is, how is it the same, how is it different?
And what can we learn from what the states have done that perhaps the federal government
hasn’t been able to. And one of the problems relying on electronic media, here we go.
James Henderson from Maine is going to be our first presenter. James.
James Henderson: Thank you. A little background from me, maybe. Not only did I used to teach
“government” so to speak in the university level, but then I have been in the legislature
of Maine and now and in a couple of local governments, which I am now, since I am retired
from most of that stuff. And then I was in the bureaucracy of the Secretary of State’s
Office and got booted over to the Archives and was in the Archives for about 20 some
years.
So I have kind of seen these kind of things from several different perspectives and hopefully
this will be of value.
Since we are supposed to discuss anything that is unique to seeking records at state
local and tribal levels so that is the question posed, is there anything unique? I think generally
speaking at least this is from my perspective, of a little state, that it is a matter of
scale. Certainly it depends, you know, California and New York and several other states are
clearly from the outsider’s perspective as big and as complicated maybe as the federal
government, especially if you are dealing with any particular part of the federal government.
But I think we have got to remember that there is still a huge number of states that are
pretty modest in size and thousands and thousands of local units that are very small. And even
comfortable up through a few tens of thousands, but even in those areas you can get to know
people.
And the tribes of course present a different issue, which is their autonomy, degree of
autonomy. In Maine we have a state and tribal commission, kind of a combined commission
and while I was Archivist I was trying to find out whose records are these of the commission.
And never did, never were able to pry them out of the commission, because the tribal
folks kind of felt that was their territory rather than the state’s.
I’d like to talk a bit about approaching local governments and state governments in
terms of building alliances and then kind of how people might want to massage or approach
or survive their contact with the custodians of the records that people are looking at
a lot of these and eventually talk a little bit about electronic records, although in
the, again depending upon the scale and of which records you are looking for, there are
different issues from the previous conversations which shouldn’t be exclusively focused on
electronic records. People in their daily lives still amazingly submit things in paper
or they are looking for things that were in paper and are of interest to them.
In the case of developing alliances in states or in the communities there are a variety
of groups. You start with the basics. There are League of Women Voters and your library
association all of whom are pretty rabid in these areas. But there are also Freedom of
Information coalitions, which are, there are 56 of them in the 51 jurisdictions so there
is a little duplication there. But these are formed often of members of the media, but
also of academics and even government folks who are interested in open government.
So the Freedom of Information coalitions do a lot of the heavy lifting sometimes in either
bringing suits or attempting to pry open the right to know laws in the various jurisdictions.
So I just encourage you to put that on your hit list of resources.
Another is the Reporters Committee on the Freedom of the Press which I think Mark knows
more about this than I, but nevertheless, that there are websites where there are resources
for each of the states, at least for the reporters, and how much more broadly that is available,
I am not sure.
There is also the state and I am looking through my own little notes here, but anyway, the
state archives, the Council of State Archivists, I should say, have a website which recites
the laws, especially on records management requirements, which have a lot to do with
whether you’re a custodian can find the records that they are looking for.
One of the things I think that’s important, and maybe again as a distinction with the
smaller scale of government if you are looking at that, is that, is to support the training
and education of the folks that have the materials. A lot of times they literally don’t know
what the right to know law means or some of its variations. And one of the things that
the National Archives, state archives have tried to do generally and these freedom of
information coalitions try to educate the county clerk, the town clerk, the local officials,
making it again, as folks were saying in the last session, in their interests to stay out
of trouble, and not get embarrassed by picking a fight with some newspaper, whatever if it
really is not necessary. So, one of if in your particular jurisdiction if you notice
that there are some kind of a training or support system developing, supporting that
would probably be in your long-term interest
One, the other related element is that the, FEMA recently gave the Council of State Archivists
a grant of a couple million dollars to develop training modules for local and state government
and tribal government officials for what are called “essential records.” Those are
the records that you need for continuity of operations in case of various, sundry disasters.
But one of the elements of that training, which is now ongoing after being under development
for a year or so, is to acquaint people, first of all, which is basic record management techniques
that they need in their own interest, but mostly for this essential records program.
And then the second is to get them acquainted with what these records are that they are
likely not only to need to maintain the government if something happens, but some of these essential
records are also those permanent records that are essential to people’s livelihoods and
needs, such as land records, birth, death, marriage, and a lot of other critical records
that are just important for the society to function. So again, that training is going
on now or is about to go on and to the extent that you become aware of that and support
it and urge your jurisdictions to get involved in it, the more likely that the folks are
going to be able to serve you when the time comes.
I guess another element that I wanted to talk about is to know the law. It seems pretty
basic, and maybe all of you do. But most states have some kind of sunshine law, right to know
law and freedom of access law, whatever it is, but the practitioners often go on common
sense and practicality and whatever they used to do for quite a long time. So the tricky
part is to be diplomatic about helping them understand now that this is not so much training,
but it is that you are there, at the desk and you have got to say, ”You know, you
are asking me why I want these records. Maybe you didn’t know, but the law, mostly, says
that you don’t have to, I don’t have to tell you,” but you may not have to say it
that way, because the reasons for asking for something is usually not a requirement to
get the access, and for good reason. It is not like, by the way I want to make sure that
Councilor X gets roasted once I find this information, find embarrassing information.
And the other, I guess the other little bit of just nitty gritty advice is don’t be
afraid to and I as am sure many of you don’t have a problem with, but may be some of the
smaller communities to appeal to a supervisor and to request a specific citation of a law,
if they say oh no that’s confidential. I am sure many of you have faced this situation
where the person gets nervous that you want this information and they just don’t think
it’s right that it be public. So, again being aware of that and being able to point
that out that is something of value. Now talking this person to person thing and not the electronic
records yet, but I promise I will get there, pretty quickly I hope.
The other issue of course is distinguishing between records that have no confidential
information and records that have confidential information and very often local custodians
will think that if a record has confidential information it’s a confidential record and
you can’t see it. Not the case, generally speaking that quite often they have to redact
it as we talked about earlier, but again it is often a local tendency to just segregate
those things as sensitive information. Just got to be aware of that kind of issue that
you might face.
There are a lot of delays in these issues, in these areas, and some of them I have just
recited, because there are roadblocks that are put up.
With respect to archival records, having been the Archivist, there are some distinctions
here, too. As with the National Archives, but in most of the state archives, you know
90 percent of material is in paper format. And it is old stuff and it’s really not something
that is going to be out there immediately.
When I was in the archives, we were trying to figure out how we’re going to do this,
how are we going to put things on line or whatever and it was basically we decided it
was going to be an on demand basis. If people are interested in X then we will put up the
X files so to speak and if not you know we will deal with individual requests. But to
try to get what amounts to millions of records even in a small state like Maine, all out
there, of course is pretty impossible. And of course, they are all fake records, as we
have been using that term earlier today, because you can’t really have a hologram to bring
that out.
But on the other hand, one of the reasons for delays with respect to archives and records
management is the issue that was brought up earlier, too, of authenticity. Just putting
something out there is not necessarily, unless it’s from a trusted source going to be the
authentic record. And so that’s why it is so important not to rely on say Wikileaks
documents or some other documents that come from some other source.
Because you have no, there has been no chain of custody so to speak in that case. You don’t
really know whether that was the same cable or whatever it was that you might get if you
were to get it from the trusted source, such as the agency itself.
How am I doing? A minute or two more in which I have got to just say, as people were discussing
indexing earlier. One of the problems is, whose index? Whose terms? How are you going
to know if we put it under the name, you know, of whoever approved under the name of so and
so. But nevertheless people who may not use those same terms. So one of the things that
archivists do is try to use, as the Library of Congress does, standard subject headings
or standard terms. And yes, there may need to be a thesaurus to match those up.
So when it gets to archival records that is one thing that should be accompanying whatever
archives are going to be posting on the Internet because they are going to have those standard
terms that may assist in the moving, in the discovery of these records. But, as part of
getting even those things out there, and I am talking about the old paper, that is the
non-born digital, because it take a lot of physical work to go through them to determine
what those terms are, to make sure that they are connected in their appropriate groupings
and so forth. It’s called processing, which is a long, long story.
Another aspect of the context in these things, again whether it’s national or state, it’s
the context that we talked about earlier, but that also means a record by itself, without
any context is really quite meaningless. You really don’t know where it came from it
may not be because it’s next to the other record that is relevant. It could be some
record in a completely different separate space. So, to the extent to which archivists
can work those things through and provide the context, to that extent, when the information
becomes available, it will be more valuable.
Finally, quickly, on the, just on the electronic records area that’s obviously new to states
as it is to the feds. And there is very little, well I will just say relatively little born
digital records that are like immediately accessible and certainly not in email systems
and I will give just one anecdote quick because there are plenty of things to talk about is..
Several years ago the state of Maine was sued as states often are. In process of discovery
because they wanted to find all records relating to X having to do with some Human Services
program. They weren’t able to find every one of them, or at least they thought they
found them and then they realized in the closet, in the pile of tapes, there was more. So then,
there was more. So the court got pretty fed up and just fined the state like a hundred
thousand bucks or whatever it was.
But this sort of sparked the notion that this doesn’t make sense. There really ought to
be a better system. And so for a year and a half or so, I and the CIO of the state,
who was very interested in solving this problem, tried to work out a system and develop an
RFP for a system similar, based loosely on the Department of Defense 10550 0, whatever,
standard. But it came down to money, ultimately. Everybody thought it was a great idea. Sorry
we don’t have any money. And this was even before the recent crashes.
So that’s an issue, of course of sometimes you can hit on the local governments or the
state governments, but they often have fewer resources, relatively speaking to solve the
problems. I will quit there to share a little bit
David McMillen: Thank you James. Mark Horvit our next speaker is the Executive Director
of the Investigative Reporters and Editors. Mark
Mark Horvit: Thanks. I wanted just to make one point sort of related to the conversation
this morning, because I think it is particularly important in the context of what we talking
about now with the state and local records. And that was sort of the difference between
open government initiatives and the federal FOIA or open records requests. Open government
initiatives and efforts by government to make information more available of course are important.
But it is never going to take the place of I think the greater importance of making sure
that the process works to allow people to request information themselves.
The difference is that with open government initiatives, the government is deciding what
it is going to make available and determining what it’s important. And when you are talking
about filing open records request and making that process available, you are letting the
public do that, determining what they need, determining what is important, which often
isn’t necessarily what government officials might think is important and having access
to that information. So I just think that it is important to remember that making sure
that this process works is vital.
So at IRE we are an organization that made up of journalists, journalism educators and
we provide resources and training for journalists. And we go all around the country doing training
and pretty much everywhere we go we dedicate a session at least no matter what to how to
get records in your state from the federal government. And that’s because the process
is difficult, it’s confusing to people who don’t do it all the time and even to a lot
of journalists who try to and there are so many roadblocks that are put in place that
you really sometimes have to know how to play the game to succeed. Simply knowing the law
is important but not always enough.
What are some of the problems that government typically puts in the way of people particularly
at the local level? Costs. We’ll talk more about that in a minute, but just coming up
with prohibitive costs is just as effective as you know refusing to give information in
the first place. If you don’t have the money you can’t get it.
The fact that the rules change. You know every state has a different set of rules. Every
time the legislature gets together and gets their fingers in there, they’ll change something.
They will create some more exemptions. So you constantly have to keep up to date and
remain incredibly vigilant about what your lawmakers are doing to make sure that something
you could get last year you can still get next year.
A couple of things that are becoming increasingly a greater problems now: one is privatization.
And that is for financial and other reasons a lot of state governments and local governments
are getting third parties private vendors to handle particular data for them. And then,
in many cases they are then trying to say when people request that data “Well you
can’t have it because they have it and they are a private company and they are not subject
to the open records law.” And usually those battles can be won, but it’s another roadblock,
it’s another delay. And again, for especially for the average citizen who doesn’t do this
all the time, that can be enough to stop somebody from getting information that they really
had a right to all along.
Format also is becoming an issue. And we see that in several states that I’ve talked
to journalists in recently and that is that in some states the way the rules read technically
are that they don’t have to create a special report for you. In other words, you can have
the information, you can have the data, but they don’t have to, if they are in a format
that they already keep it or in a report that they already have, but they don’t have to
go to special measures to get it for you.
The problem is that some places are now say they use a proprietary software to keep budgetary
information or personnel information or whatever it might be. And unless you have that proprietary
software on your computer, which most people don’t, you can’t open it, you can’t
use it. And, um, there’s some argument being made that in fact they don’t have to convert
that to a, even though typically converting that information is a pretty simple process,
they don’t technically have to do it. So what you are seeing is sort of like with outsourcing
information. If you outsource it, if you put it in a format that nobody else can open,
is that going to hold up. Is that a way to take information that should by all rights
be public and suddenly make it private, simply by you know changing the rules of the game
to some extent.
So I wanted to talk a little bit, this is, this conversation comes at for better or worse
at an important time. There are a lot of efforts going on in states around the country right
now to pull back on open records laws, laws that have been standing for a long time. Some
of you may have read about the effort in Utah recently, where they briefly pretty much dismantled
much of their open records law before the public actually heard about it, complained
and now they are reconsidering. But the jury is still out on what is ultimately going to
happen there.
But in a lot of states, including some that historically have had pretty good open records
acts, a lot of legislators now are looking at making changes that could have pretty profound
impact, if they pass. There are efforts now to block access to text or emails from private
accounts. For example the city council person who instead of using their public email uses
their Yahoo account to email everybody. Are those public documents? Well, yeah they are,
but the law has to say there are.
There are efforts in multiple states now to expand response times to allow to add pieces
to the process that allow them to delay when they have to get back to you, when they have
to reply, delays they are allowed to make. And you know in many, many cases that is another
thing that you can do to effectively kill a request. You wait long enough and the person
who is asking either goes away or in the case of a journalist, if it was a story that has
any kind of time hook, sometimes you can just wait it out until the next story comes along.
They are making information that has previously been public, private in a number of states.
Employee dates of birth are becoming a big issue. And in several states, they have changed
the law to make those no longer public. In one particularly interesting case there is
an effort going on, which is now in the courts, to say that you could no longer have state
employees’ dates of birth. And the reason this matters, from a journalist perspective,
for example is that, say that you wanted to, say you got a story for example that there
is a felon working in the Park’s Department. And their name is you know is John Smith.
Well there is a lot of John Smith’s, but if you have identifying information you might
be able to use that to determine if the person you are looking at is really the person you
are writing about.
So because allegedly because of identify theft and other reasons there are efforts to take
that information away. Some of the same states that are working to pull that information
will still sell things like voter rolls, which include every citizen’s date of birth on
them. So they are perfectly happy to make money selling your date of birth, but if you
work for the government, then suddenly its there is a risk of identity theft and other
situations sort of along those lines.
One thing I wanted to sort of talk about given the nature of today’s event and where we
are is sort of where state and government records collide. This sounds like a reality
show where state and government records collide: public, federal records. The, uh, you know
because a lot of what state does, it does at the mandate, at the requirement or using
funding from the federal government. There are plenty of state agencies that gather information,
that produce reports that are then submitted to federal agencies. And oftentimes in these
situations you can find yourself sort of in this no man’s land, where you can call up
the state agency and say I want this report that you generated. “Oh we did that for
X federal agency you’ll have to go to them.” You call up X federal agency, “ Oh the state
they put that together, you will have to go to them.” And you get knocked back and forth
and again more delays and even if you ultimately get the information, who do you get it from,
what does the law say.
So there is a couple of suggestions just along those lines that could help. One is that any
time a federal agency is requiring the state to do something, whether through a mandate,
whether it’s because they’re funding something through a program, that ah. Sorry I was distracted
for a minute by my hissing whatever that is. It’s lunch, I apologize. That any time the
federal government is requiring a state agency to gather information, part of, part of the
requirement should be that whatever is gathered is a public document, unless there is some
specific reason exemption worthy, privacy information about an individual that makes
And penalties should be built in to say if you refuse to give this information up, you
face financial penalties, whatever it might be. In other words the federal government
could through its, through the money it provides to the states provide sort of a requirement
that that information that is gathered is available to anybody and I think that it many
many cases for a lot of important programs and a lot of important datasets that could
help make that information available.
Similarly, outrageous fees. As I was mentioning a couple of minutes earlier, what you find
is that especially for people who don’t deal with government regularly, you’ll make
an initial request to a local government for something and immediately the cost comes back
as something outrageous. That’s going to cost thousands of dollars, it would be incredibly
difficult, but if you want to pay it, that’s fine. Knowing that ninety percent of people
who make records requests, the minute they get a bill like that, go away.
Journalists typically, some journalists typically know better and know that sort of going to
state or local government and sometimes federal government for data is kind of like going
to a flea market. You never pay the original price, right? You’ve got to barter, talk
it down. And usually what you can do is you can eventually, if you know what you are doing,
get the price down significantly. But it’s a lot of time that shouldn’t have to be
spent. And once again, if you are not familiar with the rules of the game, you often don’t
know that you are supposed to play in the first place.
So once again for data that is required to be gathered by the federal government, through
the states, there can be requirements stating that either that come up either with a reasonable
set of fees to be based on, and some states have caps on what they are allowed to charge,
some don’t. So in states where there are caps, there could be requirements that they
have to not only stick to those, but provide anybody who asks for information a detailed
report on what it’s going to cost, because the minute they have to justify the expense
typically it drops way down. And so, yeah, what’s that? I’m sorry. Well I will stop
talking okay now and I will turn it off. That is a good enough reason to stop.
David McMillen: Thank you Mark. Although I am not sure outrageous fees are strictly the
purview of state and local governments.
Mark Horvit: Oh, no, no, no. I did not mean to imply that. Oh no.