June 29, 2010 by
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A few days ago, to pass legislation that would give the administration of Mayor Adrian M. Fenty “unspecified additional time” to respond to requests in unusual circumstances. D.C. currently allows 15 days for a response to a FOIA, with a 10 day extension. (In comparison, Illinois FOIA law allows for 5 days to respond, and an additional 5 day extension.)
“I have never seen more burdensome that are sapping the energy of our lawyers and paralegals,” Nickles said. “You can’t both cut our budget and expect that we’re not going to have difficulties responding.”
Of course, executing open records and open meetings acts are worth extra money. It is part of governments’ responsibilities to deliver information we have a right to. But it is also important to balance this need with reality. What are the reasons to extend the amount of days to answer a request? As Nickles noted, sometimes governments don’t have the resources to answer all information requests in a timely matter.
My experience with the Illinois Freedom of Information Act shows the dual nature of the matter. Illinois had been suffering from poorly fulfilled FOIAs when the Attorney General Lisa Madigan decided to back an upgrade to the law. The , as compared to the old FOIA, gave governments more compelling reasons to answer a FOIA by upping the penalities for failing to comply with the law. It also shortened the amount of time to respond from seven days to five. After I sent FOIAs to , somewhere around 80% (or higher) of the counties asked for the additional 5 day extension. This could point to the fact that for certain requests, the time limit is too strict. Still, what is the alternative? The alternative is local governments not taking a FOIA seriously and abusing more generous time limits.
But Nickles says the Fenty administration isn’t in this boat: the administration is doing great on transparency. One member of the DC Council, Mary Cheh (D-Ward 3), disagrees and is currently advancing a transparency bill that would create an independent agency to oversee and . Nickles has said the bill is unnecessary because the Fenty administration is creating an electronic system that will make it easier to submit and track FOIA requests. Nickles pointed to statistics that show the average response time to requests has been reduced since 2007. In general, the AG thinks D.C. is transparent enough already.
However, as one participant in , there is no such thing as too much transparency. We are due every last bit of nonsensitive information, online, and once that utopia is reached, we want information in real-time.
Cheh, in return, has said Nickles “is looking for an open-ended excuse not to comply, and he’s not going to get it. It’s a simple invitation to delay, an invitation to mischief.”
Fenty’s administration has sought to “delay at every turn” says the Chairman of the Fraternal Order of Police. The union’s attorney noted that the District “doesn’t respond at all or responds a year or two later, only after we file a lawsuit.”
Nickles also took issue with a provision of Cheh’s bill that would allow the new agency to impose fines. He said it would create an “unnecessarily punitive and adversarial approach that casts government agencies and their employees as villains to be punished and pursued.”
“Unnecessary” is in the eye of the beholder, which is the taxpayer in this case. Governments can’t afford to get lazy when it comes to providing information to its citizens, and they must lean towards quick disclosure. Illinois law treats asking for unreasonable fees for a FOIA response as noncompliance. In the same vein, if D.C. is really taking up to a year to respond to a FOIA, and ignoring others, then that is noncompliance, breaking the FOIA law, which makes the negligent agency a criminal. Nickles should be fighting for stricter penalties, not serving as an apologist to lazy governments.