A primer on Freedom of Information, which specific info on the U.S. FOIA and Utah GRAMA

1. WHY FREEDOM OF INFORMATION?
Joel Campbell
Freedom of Information Committee
Society of Professional Journalists
Associate Professor
Department of Communicatons
Brigham Young University

2. JAMES MADISON
 A popular Government
without popular
information or the
means of acquiring it,
is but a Prologue to a
Farce or a Tragedy or
perhaps both.
Knowledge will forever
govern ignorance, and
a people who mean to
be their own
Governors, must arm
themselves with the
power knowledge

3. IN THE WORDS OF PRESIDENTS
Liberty cannot be preserved without a general knowledge
among the people, who have a right and a desire to know.
-- John Adams
Let the people know the facts, and the country will be safe.
-- Abraham Lincoln
We must never forget that the free flow of information is
essential to a democratic society.
-- Bill Clinton

4. QUESTION: WHO SAID THIS?
“When information which properly belongs to the
public is systematically withheld by those in
power, the people soon become ignorant of their
own affairs, distrustful of those who manage
them, and -- eventually -- incapable of
determining their own destinies.”
a. Abraham Lincoln
b. Bill Clinton
c. Richard Nixon
d. John F. Kennedy

6. MOST SECRETIVE TIMES IN U.S. HISTORY?
 War of 1812
 World War I
 World War II
 Civil War
 Post 9/11

7. A HUMAN RIGHT
 Freedom of information is recognized in
international law. Article 19 of both the
Universal Declaration on Human Rights
and the International Covenant on Civil and
Political Rights provide that every person
shall have the right to seek and impart
information. An international court has
recognized the right to seek information
includes a right of freedom of information.

8. A U.S. RIGHT TO KNOW
“Democracy dies behind closed doors.”–
Judge Damon Keith
Detroit Free Press v. Ashcroft, 303 F.3d 681
(August 26, 2002)
Successful challenge of closed court
proceedings involving non-citizens following
9/11 terrorist attacks,

9. TWO RIGHTS IMPLIED
RIGHT TO KNOW RIGHT TO ASK
 Proactive
The positive obligation of
public bodies to provide, to
publish and to disseminate
information about their main
activities, budgets and
policies so that the public can
know what they are doing,
can participate in public
matters and can control how
public authorities are
behaving.
 Reactive
The right of all persons to ask
public officials for information
about what they are doing
and any documents they hold
and the right to receive an
answer. The majority of
information held by public
bodies should be available,
but there are some cases
where the information is
withheld in order to protect
privacy, national security or
commercial interests.

10. THE IMPACT OF FOI
 Some 86 countries around the world now have
some form of Freedom of Information (FOI)
legislation with many more considering or
developing it. This trend gained momentum
during the 1990s across the world.
 The UK implemented its 2000 FOIA in 2005.
 FOI legislation is pending in Brazil and
Philippines.
 Communist countries recognize basic
information access rights.

11. GENERAL GOALS OF FOI
 1. Increase transparency and openness
 2. Increase accountability and decrease
corruption
 3. Improve the quality of government decision-
making
 4. Improve public understanding of decision-
making
 5. Increase public participation
 6. Increase public trust
 7. Increase security
 Source; Stated goals of the UK FOIA 2000, National Security Archive

12. FREEDOM OF INFORMATION – “SUNSHINE
LAWS”
 U.S. Constitution – First Amendment right to attend
Court hearings and implied record access
(Some First Amendment theorists have argued for that the First Amendment
should extend to protect receiving and distributing information from
government, but that has never been recognized by a U.S. Supreme Court
majority)
 U.S. Freedom of Information Act - FOIA (records)
 U.S. Government in the Sunshine Act (meetings)
 Utah Government Records Access and
Management Act - GRAMA
 Utah Open and Public Meetings Act

13. A BIT OF HISTORY
First records access law passed
in Sweden (1766),
Anders Chydenius (1729-1803)
(pronounced Anders KyDenies)
Sweden’s Principle of Public
Access means that the
general public are to be
guaranteed an unimpeded
view of activities pursued by
the government and local
authorities; all documents
handled by the authorities
are public unless legislation
explicitly and specifically
states otherwise

14. U.S. FOIA
 The first modern legislation was
the United States FOI Act of
1966.
 Championed by Rep. John E.
Moss, a Democratic
congressman from California, is
known as the legislative father
of FOIA
 It was updated in 1974, 1986,
1996, 2002.
FOIA was signed reluctantly by
President Lyndon Johnson in
1966. As Johnson's White House
press secretary said years later,
"LBJ had to be dragged kicking
and screaming to the signing
ceremony. He hated the very idea
of the Freedom of Information
Act; hated the thought of
journalists rummaging in
government closets; hated them
challenging the official view of
reality. He dug in his heels and
even threatened to pocket veto
the bill after it reached the White
House."
In fact, the bill was signed on July
4 without any signing ceremony.

16. UTAH’S GRAMA
 Enacted in 1991 Legislative session
 Update nearly every session since.
 2011 – HB477
 Costs
 Privacy
 Technology
 Balancing test

17. STORIES USING FOI LAWS
 Salaries of coaches and leading elected
officials
 Olympic bribery scandal investigation
 Campaign contributors to politicians
 Stories showing how soldiers were sprayed
with biological agents at Dugway Proving
Ground
 Effects on “downwinders” from above ground
nuclear tests

18. STORIES USING FOIA
 Radiation experimentation
 Increased health risks in work places
 Wasteful government spending
 Campaign finance
 Lobbyist expenditures
 Travel of members of Congress
 Homeland security expenditures
 Audits of military bases
 Biological and chemical exposures
 Safety in national parks
 501 c 3s – IRS Form 990 – Guidestar.org

19. PUBLIC RECORDS FOR EVERY DAY
 Police reports
 School teacher disciplinary records
 Voter registration records
 Professional licenses
 Audit reports
 Correspondence
 Incorporation records

20. THE BELL,CALIF. STORY

21. THE BELL, CALIF. STORY

22. FISHING EXPEDITION OR PUBLIC SERVICE?

23. SANDY SALARIES - 2008
 "I'm sure the administrators are getting nearly all of the bonus money," wrote one
employee. "I've heard rumors that the chief receives up to $10,000,” wrote an
employee in an e-mail.
 After a three-year legal battle, the Salt Lake Tribune gained access to
information about an extensive bonus program at Sandy City. a bonus program
that disproportionately rewards top administrators from all city departments --
and even provides Sandy Mayor Tom Dolan with a $1,000+ "thank you" bonus,
each year.
Dolan's check pales in comparison to those received by city administrator Byron
Jorgenson and 11 other city leaders who help administer the program, each of
whom picks up the equivalent of about a month's salary in bonuses, year after
year.
 Meanwhile, most city employees who do get bonuses get the equivalent of a few
day's pay. And hundreds get nothing at all.

24. HERRIMAN NEPOTISM

25. CITIZEN ACTIVISM

27. FOI/GRAMA CHALLENGES TODAY
 Technology…. Cloud computing, Facebook, social media,
text message
 Lack of planning at front end of records storage
development
 Lack of data to formulate policy
 Privacy
 Abuse of records – political participation
 Misunderstanding, Ignorance
 Culture of secrecy
 Over charging
 Over classification
 Wikileaks syndrome

28. THE POWER OF ACCESS
 At least a third of news stories are based in
part on open records, meetings or court
proceedings (SPJ 2001 study of 3,192
stories)
 Journalists increasingly having to fight for
records to circumvent growing walls of
secrecy and spin (despite what Nixon or
other officials would say)
 Documents help win Pulitzers
 Documents help change the world

29. UTAH GOVERNMENT RECORDS ACCESS AND
MANAGEMENT ACT (GRAMA)
 All records are considered public unless otherwise
specified
 If public interest outweighs private interest the
record may be disclosed
 Right to inspect records free of charge
 Government cannot use form of record to restrict
access.
 No use test
 No expertise test

30. GRAMA REQUEST PROCESS
 Find the record keeper
 Finesse a request
 Make a written request
 Wait for a response
 Appeal to the head of an agency
 State records committee or court
 Court

32. GRAMA REQUEST CONCEPTS
 Not held by state, check local ordinances
 10 days for normal response
 5 days for expedited response involving
“public interest”
 Request for fee waiver for “public interest”
 Journalists preparing a story for air or
publication considered acting in “public
interest”

34. FIVE CATEGORIES OF RECORDS
 Public – Salaries of public officials
-Public Tier II – police records
 Private – Medical and welfare records
 Controlled – Adoption records
 Protected – Trade secrets
 Limited – Catch-all exemption

35. ACCESS STRATEGY: HANDLING DENIALS
If they say…
 “Your description is inadequate.”
 “The requested material does not exist.”
 “We don’t trust how you might use the information.”
 “We don’t have time or resources to handle your
request.”
 “Parts of the records are exempt, so you can’t have
anything.”
 “We don’t have to give you nothin’!” (actual quote
from a sheriff)
 “OK. That will be $450,000, please.”
 “Just sign here on this contract line.”

36. GRAMA
 All records are considered public unless otherwise
specified
 If public interest outweighs private interest the
record may be disclosed
 Right to inspect records free of charge
 Government cannot use form of record to restrict
access.
 No use test
 No expertise test

37. FOIA
 Who is covered?
 Executive Branch departments, agencies, and
offices; federal regulatory agencies; and federal
corporations.
 Who is not covered?
 Congress, the federal courts, and parts of the
Executive Office of the President that function
solely to advise and assist the President, are not
subject to the FOIA
Source: National Security Archive

38. U.S. FREEDOM OF INFORMATION ACT (FOIA)
EXEMPTIONS
1. National security
2. Internal agency personnel rules
3. Information exempted by dozens of federal laws
already on the books – “Catch-all exemption”
4. Trade secrets and confidential commercial
information
5. Internal agency memoranda and policy decisions
6. Personal privacy – The Privacy Act
7. Law enforcement investigations
8. Federally regulated banks
9. Oil and gas wells

39. FEE WAIVERS
 For all non-commercial requesters the first two
hours of search time and 100 pages of copying
free of charge.
 If you are a representative of the news media, you
are entitled to waiver of all search and review
fees.
 In addition, all fees, including copying, must be
waived by the agency if the material requested "is
likely to contribute significantly to public
understanding of the operations or activities of
government and is not primarily in the commercial
interest of the requester."

40. FOR MORE INFORMATION
Reporters Committee for Freedom of the
Press. Online manual.
http://www.rcfp.org/foiact/index.html

41. UTAH OPEN MEETINGS ACT KEYS
 A quorum must be present
 Notice must be made 24 hours in advance
 Meetings must be closed by 2/3 vote
 Agenda must be posted or mailed
 Minutes must be taken and are public
documents

42. OPEN MEETINGS ACT KEYS
 Recordings of open sessions
 Detailed written minutes and recordings must
be kept of closed sessions except
discussions of character and security
 Sworn statement needed after character and
security discussions
 Misdemeanor penalty

43. EIGHT REASONS TO CLOSE A MEETING
 Discussion of character, professional
competence or physical or mental health of an
individual
 Strategy sessions for collective bargaining
 Strategy sessions for “imminent” litigation
 Strategy sessions to discuss the purchase,
exchange, or lease of real property when public
discussion of the transaction would disclose the
appraisal or estimated value of the property under
consideration or prevent the public body from
completing the transaction on the best possible
terms.

44. EIGHT REASONS TO CLOSE A MEETING
 Strategy sessions to discuss the sale of real
property when: value would be disclosed,
notice of sale had been given, terms of sale
are disclosed
 Security discussions
 Investigations of criminal misconduct
 Discussion of “commercial information” for
property tax appeals

45. TOP 10 MEETINGS TIPS
 Diffuse the open meetings bomb.
 “Retreats” should raise a red flag.
 Be careful of attorney-client privilege.
 Challenge “stealth agendas
 Question boilerplate closures.
 Beware or “electronic meetings”
 No votes for “executive sessions”
 Beware of “work meetings” or “committee of the whole”
meetings
 Get the meeting documents
 Beware of executive sessions for non-specific times and
locations