Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

Police reform shines light on disciplinary records

CC0 Pixabay via picryl

A favorable reform to follow the police protest movement of recent years, stemming in particular from the killing of George Floyd, has been transparency around police disciplinary dispositions.

There is room for disagreement over what police reform should look like. I'm of the opinion that it costs society more to have police managing economic and social problems, such as homelessness and mental health, than it would cost to tackle those problems directly with appropriately trained personnel. I wouldn't "defund" police per se, but I would allocate public resources in efficient proportion to the problems they're supposed to remedy. We might not need as much prison infrastructure if we spent smarter on education, job training, and recreation.

Regardless of where one comes down on such questions, there is no down-side to transparency around police discipline. Police unions have cried privacy, a legitimate interest, especially in the early stages of allegation and investigation. But when official disciplinary action results, privacy should yield to accountability. 

Freedom-of-information (FOI) law is well experienced at balancing personnel-record access with personal-privacy exemption. Multistate FOI norms establish the flexible principle that a public official's power and authority presses down on the access side. Because police have state power to deprive persons of liberty and even life, privacy must yield to access more readily than it might for other public employees.

In September 2023, Stateline, citing the National Conference on State Legislatures, reported that "[b]etween May 2020 and April 2023, lawmakers in nearly every state and [D.C.] introduced almost 500 bills addressing police investigations and discipline, including providing access to disciplinary records." Sixty-five enacted bills then included transparency measures in California, Colorado, Delaware, Illinois, Maryland, Massachusetts, and New York.

The Massachusetts effort has come to fruition in online publication of a remarkable data set. Legislation in 2020 created the Massachusetts Peace Officer Standards and Training (POST) Commission. On the POST Commission website, one can download a database of 4,570 law enforcement disciplinary dispositions going back 30 years. There is a form to request correction of errors. The database, at the time of this writing last updated December 22, 2023, can be downloaded in a table by officer last name or by law enforcement agency, or in a CSV file of raw data.

The data are compelling. There are plenty of minor matters that can be taken at face value. For example, one Springfield police officer was ordered to "Retraining" for "Improper firearm usage or storage." I don't see that as impugning the officer, rather as an appropriately modest corrective and a positive for Springfield police. Many dispositions similarly suggest a minor matter and proportional response, for example, "Written Warning or Letter of Counseling" for "conduct unbecoming"/"Neglect of Duty."

Then there are serious matters. The data indicate termination of a police officer after multiple incidents in 2021, including "DRINKING ON DUTY, PRESCRIPTION PILL ABUSE, AND MARIJUANA USE," as well as "POSING IN A HITLER SALUTE." Again, it's a credit to the police department involved that the officer is no longer employed there. Imagine if such disciplinary matters were secreted in the interest of personal privacy, and there were not a terminal disposition.

The future of the POST Commission is to be determined. It's being buffeted by forces in both directions. Apropos of my observation above, transparency is not a cure-all and does not remedy the problem of police being charged with responsibility for social issues beyond the purview of criminal justice.

Lisa Thurau of the Cambridge-based Strategies for Youth told GBH in May 2023 that clarity is still needed around the role and authority of police in interacting with students in schools. Correspondingly, she worried whether the POST Commission, whose membership includes a chaplain and a social worker, is adequately funded to fulfill its broad mandate, which includes police training on deescalation.

Pushing the other way, the POST Commission was sued in 2022, GBH reported, by police unions and associations that alleged, ironically, secret rule-making in violation of state open meetings law. Certainly I agree that the commission should model compliance in rule-making. But I suspect that the union strategy is simply obstruction: strain commission resources and impede accountability however possible. Curious that the political left supports both police unions and police protestors.

WNYC has online a superb 50-state survey of police-disciplinary-record access law, classifying the states as "confidential," "limited," or "public." Massachusetts is among 15 states in the "limited" category. My home state of Rhode Island and my bar jurisdictions of Maryland and D.C. are among the 24 jurisdictions in the "confidential" category.

"Sunshine State" Florida is among 12 states in the "public" category. In a lawsuit by the Tallahassee Police Benevolent Association, the Florida Supreme Court ruled unanimously in November 2023 that Marsy's Law, a privacy law enacted to protect crime victims, does not shield the identity of police officers in misconduct matters. (E.g., Tallahassee Democrat.)

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

Upcoming NFOIC Summit features access all-stars

Access-to-information (ATI, RTK, FOI) enthusiasts are invited and encouraged to attend the online 2022 summit of the National Freedom of Information Coalition on October 18-20.

My FOI seminar class and I will be there.

From the summit home page at Whova, this year's program "will include two hands-on training seminars and over a dozen of sessions this year. Hear real stories from real people, learn the best approaches to enforcing FOI Laws, examine the public's right now in the era of polarization, and more."

Summit participants include experts and champions of transparency, open government, and First Amendment rights. They also include journalists, public employees, govtech and civictech individuals, and anyone who are interested in democracy and accountability."

Speakers include (but are not limited to) some heroes of mine in the academy, notably David Cuillier, University of Arizona; Daxton "Chip" Stewart, Texas Christian University; A, Jay Wagner, Marquette University; Margaret Kwoka, Ohio State University; and Amy Sanders, University of Texas at Austin.

The lineup also features some FOI legends who have worn many hats, including Frank LoMonte, now at CNN and most recently executive director of the Brechner Center; Michael Morisy of MuckRock; Colleen Murphy of the Connecticut FOI Commission; Tom Susman of the American Bar Association and previously of Ropes & Gray; and Daniel Libit, founder of The Intercollegiate and Sportico and tireless advocate for accountability in college athletics.

This year's agenda covers ORA/OMA litigation and enforcement, college athlete publicity rights, messaging apps, doxxing, law enforcement video, legislative transparency, and much more.

I also look forward to seeing the latest research, which wins consideration for publication in the Journal of Civic Information (for which I'm privileged to serve on the Editorial Board).

Registration is affordable and online here. #FOISummit22.

If you've read this far, you might be interested as well in a free public series of online classes recently announced by the New England First Amendment Coalition (NEFAC), "Open Meeting Law: How Newsrooms Respond to Executive Session Secrecy."