FARGO: Falling behind on public access laws

November 26, 2011

Anthony FargoWe love ratings. We watch the AP Top 25 and the BCS rankings to see how our favorite college teams measure up. We take magazine surveys to measure our love lives, friendships, health habits and work relationships. We devour reports on the Top 100 high schools, the 100 best colleges, and the 10 best new cars.

To no surprise, there are also ratings for how well your state or country is doing in providing public access to government information.

The Indiana Transparency Portal, which State Auditor Tim Berry and other officials have upgraded recently to provide more public information, has been lauded by Sunshine Review and the U.S. Public Interest Research Group, among others.

But just a few years ago, the Better Government Association and the National Freedom of Information Coalition gave Indiana an F for transparency. To be fair, the BGA and NFOIC are tough graders—38 states got an F, and Indiana just missed a D. No one got an A in that study, which favored states that punished public officials who did not comply with access laws in a timely fashion.

One can always question the methodology of ratings and the possible biases of the sponsors, but ratings can often be illuminating for comparative purposes, at least, assuming the methodology isn’t completely illegitimate.

Recently, two not-for-profit organizations, the Centre for Law and Democracy in Canada and Access Info Europe in Spain, joined forces to do a study of all 89 countries that have right-to-information laws, like the Freedom of Information Act in the United States. The full results of the study are at www.rti-rating.org.

The two groups used 61 indicators of openness grouped in seven broader categories. People familiar with the laws in each country gave the nation points on each indicator, with the total high score being 150.

So how did the United States do? Like Indiana a few years ago, the nation just missed a D. Our 89 points ranked us as 36th out of the 89 countries.

What might be more interesting is who beat us. The nation with the top score was Serbia, followed by Slovenia, India, El Salvador, Liberia, Croatia and Mexico. The bottom of the list is heavily populated by western European countries, with Austria at the bottom.

The study sponsors noted that the criteria seemed to favor countries with newer laws, which might explain why relatively recent converts to democratic governance did well. Countries like Serbia and Liberia have had a chance to study access laws in older democracies in the West and learn from their successes and failures.

The sponsors also noted that the study was largely limited to the laws as written, not how well they were implemented.

The United States suffered a bit because the Freedom of Information Act does not extend to the legislative and judicial branches. However, while FOIA does apply only to the executive branch and independent agencies, our legislative and judicial branches are generally open to scrutiny through other statutes or common-law traditions.

The study tended to favor countries that allowed the public interest to override exemptions to access, which is not a part of FOIA. It also favored countries that had independent oversight commissions to review appeals by people denied access to records. In the United States, appeals usually go through the agency chain of command and then the courts. However, taking appeals to court can be expensive and time-consuming.

Although the study focused on federal laws, there may be some lessons here for states such as Indiana, particularly in regard to the better showing of newer laws over older ones.

Have our federal and state legislators done enough to update access laws for the Information Age, when people expect instant access at their fingertips? And is telling someone “you can always sue” tantamount to a final denial of access, given the expense and hassle of taking an agency to court?•


Fargo is an Indiana University journalism professor and member of the Indiana Coalition for Open Government. Send comments on this column to ibjedit@ibj.com.


Recent Articles by Anthony L. Fargo / Special to IBJ

Comments powered by Disqus