TRANSPARENCY TUESDAY: Sometimes, you've got FOIA friends in high places



The scandal-plagued University of Illinois, where a controversial VIP-preference admissions system has already toppled the president and the chair of the board of trustees, continues operating in "public transparency bunker" mode. Journalists seeking records from the university routinely encounter months of delay and dubious claims of "student confidentiality."

And that's not just the journalists' opinion -- it's shared by the Illinois Attorney General, whose office has publicly upbraided the university as one of the agencies that "repeatedly disobey the law" when it comes to disclosing official records.

A well-run state attorney general's office can be a journalist's strongest ally in forcing recalcitrant state agencies to comply with their disclosure obligations.

Many states -- among them Washington, Indiana and, yes, Illinois -- maintain an "open records ombudsman" whose job includes responding to inquiries from members of the public frustrated by delayed or incomplete responses to their public-records requests. This help function typically is located within, or affiliated with, the attorney general's office. (Our friends at the Reporters Committee for Freedom of the Press have compiled a rundown of state open-records troubleshooting offices here.)

Even if there is no officially designated ombudsman, sometimes a call to a knowledgeable person in the attorney general's office will jar something loose. It is easier for a hidebound agency to shrug off a bad editorial than a chewing-out from its own legal counsel.

Attorneys general -- and yes, grammar geeks, that's the right plural -- also often issue non-binding legal interpretations about whether particular records are or are not subject to disclosure. Those opinions should be publicly available on the AG's website or through a search on a database such as LexisNexis with which a reference librarian can assist. (Requests for an attorney general's legal interpretation usually must come from a government official rather than from a member of the public -- but a friendly elected official might be persuaded to make the request on your behalf.)

Attorney general opinions, while not biding as legal precedent, are valuable sources of guidance that may convince agencies to alter their obstructionism. That's because, in many states, the attorney general also serves as the defense lawyer who must represent a state agency that is sued. If your own attorney is publicly advising you that your behavior cannot be defended in court, then it's time to reassess.

Be mindful that the existence of a review mechanism in the attorney general's office can create as many problems as it solves. In Texas, for instance, agencies have become adept at "gaming" the open-records system by seeking rulings from the attorney general even where their obligation to disclose is painfully obvious, knowing that the process of getting an AG's opinion will add months of delay that may dampen the requester's interest in pursuing the information.

It pays to get familiar with the state-level resources -- informal sources of support as well as formal appeals processes  -- that are available if, like the journalists at the Daily Illini, your college's responsiveness to requests for records is measured in geologic periods and not days.

Tagged: FOI, public records, Transparency Tuesday