IU conference provides public access tips

INDIANAPOLIS, Ind. – As Indianapolis and state officials shroud their bid to secure a $5 billion Amazon headquarters, the Media School at IU hosted an all-day conference to educate journalists and citizens on how to navigate the often byzantine world of Indiana’s Public Access Laws.

“They really don’t want all the statistics that got into that,” said Steve Key, Executive Director of the Hoosier State Press Association. In case the state’s package of incentives, training funds, tax breaks, infrastructure improvements and property acquisition fail to woo the internet retail giant, “there are those that really don’t want you to know that it didn’t all pan out.”

The Indiana bid is being shepherded by the Indy Chamber and by state statute its proposal, and those of other private economic development corporations, are shielded from public disclosure for competitive reasons, and, “the legislation is not going to change,” said Key.

Other cities and states have revealed bids in the $2-5 billion range in an attempt to land 50,000 high paying jobs.

The Amazon negotiations are an example of the myriad of financial incentives to private industry for job promises that are difficult to track and reveal that state officials engage in everyday, according to participants in the “Letting the Sunshine IN:  An Open Data and Open Government Workshop” on the IUPUI campus co-sponsored by the Indiana Coalition for Open Government and the Society of Professional Journalists.

Panelists from across the nation weighed in on the challenge of accessing closely-held government data and information in Indiana and at the federal level and strategies for surmounting bureaucratic roadblocks and intentional deceit.

Indiana Public Access Counselor Luke Britt reported only 8% of the appeals to public information denials that reach his desk originate with journalists.

Most of the inquiries are from prison inmates researching information on criminal conviction appeals or political interests doing opposition research.

Britt said that the phrase “discretion” is often cited by government record keepers in denying information requests. Unarguable facts and statistics should be provided, he said, while opinion and speculative observations can be redacted.

Local boards of education have become adept at denying basic requests, such as refusing confirmation about or information on discipline of staff and superintendents, said Britt, who added, “I think the public has the right to know what that malfeasance was.”

One panel member described the frustration of determining how much a local school district actually paid to buy itself out of a contract with its recently deposed superintendent.

“Factual basis for termination must be provided,” said Britt whose findings are advisory and carry no penalties for the offending agency. He suggested that parties seeking information citing Indiana’s Open Records Act develop personal relationships with the agency record keepers. “’Gotcha for gotcha sake’ breeds distrust,” with government employees, he claimed. “98% want to help.”

That perception of cooperation was greeted with skepticism by conference attendees who detailed their frustrations with attempting to discover information paid for with tax dollars and carried out by civil servants on the public’s behalf.

Key advised that an adverse ruling from the Public Access Counselor can provide the basis of a lawsuit demanding the withheld information, but another panelist observed, “We rely on the goodwill of news companies (to file suits) which they won’t do due to budget cuts.”

“Transparency is getting worse, getting worse, getting worse,” said David Cuillier, Director of the University of Arizona School of Journalism, “while technology is getting better.”

Panelists proposed ways to outmaneuver recalcitrant public employees and policies, including narrow focusing requests to avoid blanket denials, agreement to redaction of personal information to undercut refusal rationale, suggestions that materials can be provided digitally, phrasing the request as an inquiry for “responsive records” and seeking a log of previous requests to determine what information has already been provided.

“They just play these cat-and-mouse games and utilize these loopholes,” said William Groth, an Indianapolis attorney who led the successful fight to uncover then-Governor Mike Pence’s emails sent and received on a private account while he was in office.

Groth said he found the Governor’s Office did not have a record retention policy thereby providing an automatic excuse to not comply with Open Records Act requests.

“The Public Access Counselor has no authority, no staff and no funding,” and serves at the pleasure of the governor,’ said Groth.

Indiana Business Journal Reporter John Russell suggested that Britt was the best counselor to recently serve the state.

Cuillier pointed out that Mexico has a constitutional guarantee of a right to public records and there is a need across the United States to re-engineer government record keeping to immediate on-line access, but there is no political will to do so because there isn’t, “any incentive to create any transparency for what they do.”

Such an automated system could save time and money answering open records act requests and agency information sharing said Cuillier, who broke down the rationale for the refusal of public servants to fulfill legitimate inquiries.

“It’s about not being embarrassed or getting fired and protecting the reputation of their agency and themselves,” he said. “It’s totally against the citizen. It’s out of whack.”

Jason Leopold told the conference he has been described as a “FOIA/NSA terrorist,” for the hundreds of Freedom of Information Act requests he has filed with the federal government and more recently for information held by the National Security Agency.

Leopold said he often finds his denials have been politicized in that they are blocked by political appointees at the highest levels of the agencies he’s examining.

One such request, to the CIA, revealed that the word “burritos” was redacted from information about breakfast menus.

“There is no criminal penalty for thwarting the release of records or lying that the records don’t exist,” he said, describing himself as the “Number 1” plaintiff in the nation when suing for public access.

“I look at FOIAs as a prison sentence. I can do a year in prison. I can wait a year for a FOIA request.”

Leopold said some FOIA inquiries that have been pending for five years are now seeing action thanks to restructuring at the U.S. State Department which has reassigned several career employees to the processing of public information.

Regarding the possession of body camera footage by local police departments, Leopold said that officials often block the release of such video because, “They’re thinking, ‘What happens when this comes out? Protests. Riots,” and that sometimes agencies don’t know how to use the redaction software that would make such information releasable.

Washington Post Data Journalist Kimbriell Kelly suggested outlets seeking assistance in navigating the open records obstacle course establish blind portals and secure drop boxes on websites so that users, often conscientious government employees, could provide anonymous tips about specific information that could be sought.

Moderator Garry Lanosga closed the conference by announcing an anticipated public data clearinghouse platform to provide simplified access to and monitoring of public records and the agencies that hold them, to be developed by the Indiana Coalition for Open Government, a nonprofit organization.

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