Open Meetings

New York Legislature Passes Open Records and Open Meetings Reforms

Matt C. Sanchez — Wed, 09 Jul 2008 14:26:42 -0400

The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year. Among other changes, the bills would increase electronic access to government records, prevent agencies from denying voluminous records requests, and make it easier for citizens who successfully challenge an open meetings violation to win awards of legal costs and attorneys' fees. The bills await consideration by Governor David A. Paterson before becoming law.

S962, perhaps the most interesting update to the state's open records law, requires an agency to produce a record in the medium requested by the person seeking information, so long as the agency can "reasonably" provide the record in the requested medium or hire an outside service to do it. This reform will make it possible to request more records in electronic -- rather than paper -- format, making it easier for citizens to use electronic means of searching, organizing, and analyzing information.

Another provision of S962 prohibits an agency from refusing a records request on grounds that the request is voluminous or that compliance would be too burdensome, provided that it can engage an outside organization to handle the request. The provision allows the agency to retrieve the costs of hiring an outside service from the person making the request. Because producing records in electronic format will generally be cheaper and easier than doing so on paper, this provision should make it especially difficult for agencies to deny requests for large amounts of information in electronic format.

On the open meetings side, S1599 would make it easier for successful plaintiffs in lawsuits claiming open meetings violations to win legal costs and attorneys' fees. The bill modifies existing law to provide for automatic awards of reasonable costs and fees whenever a public body votes on a measure or resolution in violation of open meetings requirements (i.e., in an improperly closed meeting) or engages in substantial private discussion prior to a vote at an open meeting. A public body can avoid the automatic award if it shows that it had a reasonable basis for believing it was entitled to hold a closed meeting.

Other open government bills awaiting Paterson's signature include:

S3850, which requires that agencies design their electronic records retrieval methods in a way that allows public information to be separated from information that might be withheld, whenever doing so is "practicable and reasonable." This provision should ease public access to records by making it less likely that sensitive information will stop the release of nearby or related -- but otherwise producible -- information.

S7944, which requires agencies to maintain an online listing of all records it possesses, arranged by subject heading. Any agency that has a website must post the list to its site, while agencies that don't have websites must arrange to have their lists posted at the Committee on Open Government site.

S7042, which requires agencies to make records that will be discussed in open meetings available to the public at least 72 hours before the meeting. The provision specifically includes records related to any proposed resolutions, laws, rules, regulations, policies, or amendments that the meeting will address.

Under New York law, Governor Paterson has 10 days from receipt of the bills to sign or veto them. If he does neither, the bills become law without his signature. You can track each bill's progress on the New York State Assembly's website by inputting the bill number (i.e. S7402) into the search field.

For general information on New York's open records and open meetings laws, see our legal guide sections, Access to Public Records in New York and Open Meetings Law in New York. In related news, CMLP intern Jason Crow's recent blog post discussed a bill pending in the New York legislature that would allow the public to photograph, videotape, and audio record public meetings open meetings.

(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

NY Law Would Allow Citizens to Record and Broadcast Government Meetings

Jason Crow — Fri, 04 Jul 2008 09:22:15 -0400

A bill pending in the New York Legislature would allow the public to photograph, videotape, and audio record public meetings in New York, providing better access to government deliberations and information. It would impose two minor conditions: the photographing or recording activity must not be disruptive, and the public body holding the meeting can regulate where equipment and personnel are located in the room. The bill is an amendment to section 103 of the New York Open Meetings Law, which gives the public a right of access to the meetings of a large number of government bodies at the state and local level.

Judicial decisions in New York have already indicated that the public may use unobtrusive recording devices in public meetings and have influenced Missouri and North Dakota to provide the same recording right. In Mitchell v. Board of Education of Garden City Union Free School District, 113 A.D.2d 924 (N.Y. App. Div. 1985), the court reasoned that allowing the public to use recording devices at public meetings may provide a better way to document what transpires at the meetings than merely using pen and paper. The court expressed that

[a] contemporaneous recording of a public meeting is undoubtedly a more reliable, accurate and efficient means of memorializing what is said at the proceeding. Once the information and comments are conveyed to the public, it should be of no consequence that they may subsequently be repeated, by means of replay, to those who were unable to attend.

The pending amendment would codify not only the public's right to record a public meeting, but the right to “broadcast” the resultant media, including through "transmission by cable.” The legislature clearly had in mind traditional forms of media distribution, including over the air broadcast television and cable television. Can the bill be read to include the right to webcast public meetings? I’d argue yes. But why use such analog-specific language when the purpose of the amendment was, in part, to utilize technological advances to "give effect to the policy of open and public government proceedings"?

The bill could be improved by including some reference to digital distribution, including simultaneous broadcast over the the Internet, a distribution channel that utilizes, in myriad combinations, radio waves and various other wavelengths of the spectrum, coaxial cable, fiber optics, telephone wires, and so on.

In any event, the ability to record and broadcast public meetings is an extremely powerful way of holding government accountable. The message the law sends is that government works better when citizens are engaged and the lawmaking process is transparent and open to public scrutiny. If the amendment passes, tech savvy New Yorkers will have the benefit of utilizing their cell phones, palmcorders, and MP3 recorders to do original investigative reporting and fact gathering with the full support of the law.

To read the pending legislation, go to the New York Legislature’s bill tracker and type in “S2053” for the Senate version or “A1111” for the Assembly version. For general information on New York's open meetings laws, see our legal guide section, Open Meetings Law in New York.

(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)

Bill Will Revamp Tennessee Open Records Law

Matt C. Sanchez — Fri, 30 May 2008 13:33:57 -0400

Tennessee Governor Phil Bredesen is expected to sign into law a recently passed bill that would provide a much-needed overhaul of the state's open records practices. The bill, SB3280, corrects a number of deficiencies in the current Tennessee Open Records Act.

Key provisions of the bill include:

A clarification and expansion of the definition of "open records" and "state records." The new law would explicitly encompass all state records unless they fall within a specific exemption.

A requirement that the Office of Open Records establish a schedule of reasonable charges that records custodians will use as a guideline when determining how much to charge citizens for copies of public records.

A requirement that open records requests must be fulfilled or denied a within seven days, which accords with the average time limit in other states' open records laws. Previously there was no set time period for responses to records requests.

A requirement that all denials must be accompanied by a description of the "basis for denial." Previously custodians did not need to note why the request had been denied. An earlier version of the bill had an even better "legal exemption" requirement - which would have mandated that custodians cite the specific provision that warrants the denial - but this was changed through amendment.

The Creation of the Office of Open Records Counsel, which will handle open records issues for local government.

A number of minor changes to the state open meetings law, including a provision that allows prevailing plaintiffs in lawsuits concerning violations to recover reasonable attorneys' fees.

Sadly, one of the more promising provisions did not survive the legislative process. The original version of the bill would have allowed "any citizen" to request records. Later amendments reverted this provision to its original form, which affords the privilege to Tennessee citizens alone. While some states restrict requests to their own citizens - Virginia, for example - most do not. See the CMLP Legal Guide section on Access to Records from State Government for more information.

Such restrictions on access evince a myopic view of the types of citizens who will and should be able to request records. The Tennessee open records law could pose a problem for citizens of other states with roots or family members in Tennessee, or for individuals who live in Tennessee but who have not yet become "citizens of the state." This is complicated by the fact that neither the bill nor the Tennessee Code as a whole defines what a "citizen of Tennessee" is. These concerns are ameliorated to some extent by a provision that requires citizens to provide identification only when the requested record "involves personal security by the entity or official retrieving such record." Additionally, there is nothing to prevent non-citizens from asking a Tennessee citizen to place a request for them.

This concern aside, the bill promises to greatly improve citizens' ability to obtain Tennessee records and information if it comes into force. Under Tennessee law, Governor Bredesen has 10 days from receipt of the bill to sign or veto it; if he does neither, the bill will become law without signature.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

It's Sunshine Week!

Tuna Chatterjee — Wed, 19 Mar 2008 14:54:49 -0400

It’s March and it’s Sunshine Week. This year, from March 16 - 22, the American Society of Newspaper Editors is holding its annual national initiative to raise public consciousness on the need for open government. The name “Sunshine Week” is derived from the late Supreme Court Justice Louis Brandeis’s admonition that “[s]unlight is the best disinfectant,” describing his belief that an open government is more accountable to its people and thus less easily corrupted. As I write this post, various participants in the media community are similarly calling attention to the public’s right to know what their government is doing and why in order to improve their lives and better inform their communities. (See the Student Press Law Center, the Massachusetts Newspapers Publishers Association, and the Society for Professional Journalists for examples.)

Using freedom of information laws is a simple, and potentially powerful, way of obtaining information about the activities of federal, state and many local governments. You don't need to hire a lawyer, and no complicated forms are involved—requests can be made in a simple letter. And you don't need to be a journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can post the information and make it available to anyone in the world.

Your request can yield information that has a real impact on your community. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing multiple requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents she received and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals. Similarly, in 2006, the nonprofit organization Public Employees for Environmental Responsibility used the federal Freedom of Information Act to get documents that revealed that genetically-modified crops had been sown on thousands of acres in a federal wildlife refuge. A coalition of nonprofits used this information to sue the U.S. Fish and Wildlife Service for violating federal environmental law. For other examples of the benefits of sunshine laws, see the National Security Archive's 40 Noteworthy Headlines Made Possible by FOIA, 2004-2006.

Unfortunately, since the 2001 terrorist attacks, the government has whittled away at the public’s access to government information in the name of security. According to the Associated Press, legislatures around the country have passed more than 600 laws restricting public access to government information. As a result, you cannot access a variety of information such as the safety plan at your child’s school in Iowa, medication errors at your grandparent’s nursing home in North Carolina, or disciplinary actions against state employees in Indiana.

These access restrictions highlight the importance of Sunshine Week and its focus on the need for the public to resist the current trend of secrecy and direct legislative efforts towards a presumption of openness. For our part, we at the CMLP intend to spread some sunshine by publishing the next section of our Legal Guide on Access to Government Information at the end of this month. The guide will not only include information on federal and state freedom of information laws, but also information on how to access government meetings, the courts, and Congress.

Assessment of California's Open Government Reform Initiatives for 2007

David Ardia — Mon, 12 Nov 2007 23:05:05 -0500

Last week, the California First Amendment Coalition published an assessment of several open government reform bills in California's 2007 legislative session. The report shows that while there were some victories, several important reform proposals failed in the legislature or died on the Governor's desk. I wrote about one such proposal several weeks ago, S.B. 964, which would have added some teeth to California's open records law and closed a significant loophole in the state's open meetings law, that Governor Arnold Schwarzenegger refused to sign.

The California First Amendment Coalition reports:

The 2007 legislative session started with a host of promising bills that would have created more transparency and would have reversed recent judicial and Attorney General opinions permitting excessive secrecy. There were some successes and some disappointments. The major disappointment was the failure to overturn the 2006 state Supreme Court decision in Copley Press v. Superior Court, which effectively sealed all police disciplinary records. The major success was legislation creating more oversight and accountability for the UC Regents’ and CSU Trustees’ executive pay committees.

The full assessment can be found here.

(NOTE: The executive director of the California First Amendment Coalition, Peter Scheer, is on the board of advisors for the Citizen Media Law Project.)

Open Government Reform Bill Fails in California

David Ardia — Thu, 25 Oct 2007 16:40:44 -0400

California Governor Arnold Schwarzenegger refused to sign a bill, S.B. 964, that would have added some teeth to California's open records law and closed a significant loophole in the state's open meetings law which allows local government officials to hold discussions without public scrutiny through serial communications, such as e-mail, telephone, or intermediaries, provided the discussions do not result in a "collective concurrence" as to actions to be taken.

The Reporters Committee for Freedom of the Press reported on the bill's failure yesterday and provides some additional background on the legislation, noting that "the measure had been eviscerated well before it ever reached the governor's desk." According to the Reporters Committee:

In its final form, S.B. 964 would have prohibited a majority of the members of a local agency's legislative body from discussing, deliberating upon or taking action on matters within its jurisdiction when the communications were not open to the public and were otherwise required by law to be so.

Tom Newton, general counsel for the California Newspaper Publishers Association and a lead supporter of the bill, said the original version of S.B. 964 had included a provision that would have authorized the state attorney general's office to review rejected open records requests. The original version would also have permitted a court to assess penalties upon a state or local agency in addition to legal fees if the court found the agency had acted in bad faith in denying a public records act request, Newton said.

In refusing to sign the bill, Schwarzenegger issued a written statement on October 5 in which he conceded the need for reform, but took exception with the bill before him:

It is of the utmost importance to ensure openness and transparency of local government decision making. . . . In its attempt to solve the issue, this bill imposes an impractical standard for compliance on local officials and could potentially prohibit communication among officials and agency staff outside of a public meeting.

Tom Newton, general counsel for the California Newspaper Publishers Association, told the Reporters Committee that he expected the bill, complete with the attorney general and bad faith penalty provisions, to be introduced again next year.

Massachusetts Considering Strengthening Open Meetings Law

David Ardia — Thu, 21 Jun 2007 11:14:36 -0400

Robert Ambrogi reports that:

The Massachusetts legislature's Joint Committee on State Administration and Regulatory Oversight today held a hearing on a number of open government bills and both the Senate and House chairs of the committee indicated support for measures that would add "teeth" to the law. In my capacity as executive director of the Massachusetts Newspaper Publishers Association, I testified in support of House Bill 3217, an MNPA-drafted bill that would allow fines against individual board members who violate the law and allow recovery of attorneys' fees by private citizens who bring actions to enforce the law.

Let's hope the Massachusetts legislature follows through on this. While state open meetings laws can provide useful leverage in the battle to get access to the workings of government, they typically lack any real enforcement mechanisms. Oftentimes the only recourse available when a meeting has been improperly closed is to get a "ruling" by a state official -- long after the fact -- that the meeting should have been open. Allowing fines and the recovery of attorneys' fees will add some real teeth to the Massachusetts act.

You can track the status of the Massachusetts bill at OpenMass.org.

N.C. Publisher Charged With Trespass For Refusing To Leave Closed Meeting

David Ardia — Wed, 06 Jun 2007 22:50:16 -0400

Tom Boney, publisher of the Alamance News, a weekly newspaper in Graham, N.C., was arrested and charged with trespass after refusing to leave the Burlington-Alamance Regional Airport Authority's monthly meeting. According to the Burlington Times-News, Boney refused to leave the meeting after the airport authority voted to hold a private meeting to discuss a possible economic development project at the airport.

Under North Carolina's Meetings of Public Bodies Act, all official meetings of public bodies are presumed to be open to the public. The law permits closure only under nine enumerated circumstances. It is unclear whether the airport authority met any of these conditions when it closed the meeting. Even the sheriff who arrested Boney commented that he respects him for sticking to his convictions. "He's got a valid point about having access to public meetings," the sheriff told the Burlington Times-News.

Boney, who has long campaigned for open government meetings, is scheduled to appear in court on June 25 to address the misdemeanor trespassing charge.

UPDATE: The Reporters Committee for Freedom of the Press reported that the district attorney's office dismissed the charge on July 20, 2007, saying the incident between Boney and the authority was a "civil matter."