Looks like government — open like government?





Twice this year, Student Government Association members at Western Illinois University used secret ballots to vote on important campus issues, an athletic fee increase and implementation of a plus and minus grading system. The SGA had been using the method for some time with seemingly good intentions — to expedite and simplify the voting process. Little did members know it was potentially illegal and a violation of the Illinois Open Meetings Act.

The secret voting also did not arouse the suspicions of the student paper’s rookie reporter, who was covering the SGA meeting. Not until an SGA senator mentioned the secret ballots in passing to Western Courier staffers did the paper research the legality of the method. After discovering the secret ballots did potentially violate state open meetings laws, the paper published an editorial to inform the SGA and the public. SGA members apologized and at their next meeting, created and passed legislation that said the organization would no longer use secret ballots.

In Western Illinois’ case, simply publicizing and informing campus that the use of secret ballots was potentially illegal led to the SGA holding more fair and open meetings. The Western Courier argued in the editorial that students could not hold their representatives accountable without open, recorded votes.

“Our role as journalists was to hold the power accountable,” said Editor in Chief Jason Nevel. “We don’t get too many opportunities to call those in power out … and actually cause a change.”

But it certainly is not easy for all student journalists trying to get public information from their student governments. In November 2007, reporters for the University of South Dakota’s student paper, The Volante, were kept out of a meeting where SGA members voted to remove the SGA president from office.

The SGA also did not reveal to the paper how each member voted. The editor in chief of the Volante filed an open meetings violation complaint with the state attorney’s office on Nov. 16.

In 2004, the University of Northern Colorado’s student paper sued the student government, asking a Colorado district court to nullify three student government meetings that violated the open meetings law. The paper won the lawsuit — the court agreed the student government, as a state-operated body, was subject to state open meetings law.

Gray areas

Arguably, student governments at public universities should be subject to state open meetings and open records laws because, in most cases, they allocate university funds and make decisions on behalf of the student body — both governmental functions, said Charles Davis, executive director of the National Freedom of Information Coalition. However, student governments in most states fall in a gray area.
Only California, Nevada and Washington have statutes that specifically mention student governments as public bodies subject to sunshine laws. Student governments may also be covered under statutes that say “subunits” or “committees” of a public body should be open, like those in Colorado, Massachusetts and Ohio. A stronger argument can also be made for a student government being a public body if a public university’s board of regents has delegated power to a student government, Davis said. Student governments may also be covered under statutes in states, such as Alabama, Illinois and Virginia, that say bodies spending public money or tax revenue should be open.

Gaining access

Although it may not be clear in most states if state sunshine laws apply to student governments at public universities, student journalists have several options if they are denied access to meetings or records that should be public.
To begin with, student journalists should be aware of what their access rights are, said Peter Scheer, executive director of the California First Amendment Coalition. After all, there are exemptions to all state sunshine laws. In California, for example, public bodies can close meetings where they discuss pending litigation or when discussing performance reviews of employees. But only on rare occasions could a student government at a public California university legally go into closed session, Scheer said.

If student reporters feel they are being unlawfully denied access to a student government meeting, they should first object to being kept out and make sure the meeting record reflects the objection. Reporters then should request an explanation for why student government officials think reporters can legally be excluded, Scheer said.

Student journalists can then write a letter of appeal to the student government and its faculty adviser, said Mike Hiestand, SPLC legal consultant. It may also help to appeal to the dean of students or university chancellor. University officials should be concerned when a state law is being violated and there is potential liability for the school, Scheer said. The university general counsel should also be contacted, if the school has one.

“It’s his or her job to worry about the school getting sued,” Scheer said.

A growing number of states have established Freedom of Information offices where student reporters can get free advisory opinions on how state open-meeting laws apply, Hiestand said. Offices such as Florida’s Commission on Open Government Reform and New York’s Committee on Open Government are granted authority from the state to issue these advisory opinions. In states that do not have FOI ombudsmen, student reporters may be able to seek a legal opinion from the state attorney general’s office.

When requesting records such as meeting minutes or budgets from student governments, student journalists can submit a formal Freedom of Information Act request if verbal requests do not work. In most states, the appeals process for open records is clearer than with open meetings, Hiestand said.

The last recourse for a student journalist if the student government repeatedly refuses to release certain information is to file suit. Organizations like the Student Press Law Center can advise student journalists and help them get legal representation.

“You have to decide for yourself how important it is to pursue it,” Hiestand said.

Private universities

Private universities generally are not required by law to provide most records to journalists with the exception of some campus crime statistics, federal nonprofit tax returns (IRS Form 990) and other federally mandated reports that include information, for example, on graduation rates, athletic budgets and foreign investments. Student governments at private universities are not required by state law to grant student reporters access to records and meetings.
“Your legal options are really, really limited,” Hiestand said.

However, if there is a formal agreement that requires a private university’s student government to allow press access, student journalists can force the student governments to honor that agreement, he said.

And whether at a public or private university, a student reporter at least has the power of the press to publicize if a student government is denying the student body access to relevant information. Writing news stories and editorials can “draw attention to both the violation and the fact that the student organization is afraid to do whatever it’s trying to do in front of the public,” Scheer said.


reports, Spring 2008