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FOIA gives people access to workings of government for 40 years

Rarely do we think much about the sources of information swirling around us in the battle to sway people to accept a certain point of view on social issues and public policies. The massive public relations machinery of government, spin doctors on talk shows and in interviews, speeches of government officials and bloggers bombard the public with partisan positions on issues.

At the state and local level, we're also confronted with rhetoric and spin and are left to wonder what is fact and what is simply opinion. Where does the truth lie? How do we sift through the verbiage to find the nuggets of truth?

Fortunately, we have access to documents that reveal much about the workings of government and provide facts. In 1967, President Lyndon B. Johnson signed into law - albeit apparently reluctantly - a revolutionary piece of legislation 12 years in the making that transformed the process of learning the truth about government decision making.

The Freedom of Information Act - referred to as FOIA (foy-yuh) - put in the hands of citizens the tools to pry open the closed doors of government. Over the past 40 years, information squirreled away in documents hidden from public view has been disclosed that has contributed immeasurably to knowledge not only about the workings of government but the dangers to public safety and health that need to be corrected.

Mississippi enacted its own Public Records Act in 1983. Access to government records in the state also shows how tax dollars are being used or misspent and decisions made that are either beneficial or detrimental to the needs of citizens. Public records laws, in short, are a means to hold government accountable.

The Federal Emergency Management Agency (FEMA) refused to honor FOIA requests for names and addresses of recipients of $1.2 billion in Katrina assistance, claiming that disclosure of this information "would constitute a clearly unwarranted invasion of personal privacy." A federal appeals court in Atlanta, however, ordered FEMA to release these documents.

"The public interest in evaluating the appropriateness of FEMA's response to disasters is not only precisely the kind of public interest that meets the FOIA's core purpose of shedding light on what the government is up to," the court ruled, "the magnitude of this public interest is potentially enormous."

The court stated: "In light of FEMA's awesome statutory responsibility to prepare the nation for, and respond to, all national interests, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility."

Without these legal tools to gain access to documents, we would remain in the dark about many important matters affecting American citizens.

A few examples of the millions of pages of documents obtained through Freedom of Information requests illustrate why it matters to you that these access laws exist.

Advocacy groups use the federal and state public records laws to learn about health and safety issues and utilize these documents to lobby for change.

Information obtained through FOIA requests have revealed adverse effects of drugs, hazardous waste dumping, negligence of companies resulting in worker accidents, defects in Firestone tires and environmental dangers such as air and water pollution.

The Public Interest Research Group released findings based on FOIA documents that nearly a third of industrial facilities and government-operated sewage treatment plants significantly violated pollution discharge regulations.

The most dangerous work places in the United States were discovered in records obtained from the Occupational Safety and Health Administration. Despite assurances following 9/11 that there was no danger to workers at the Ground Zero site, for example, government records revealed environmental deception by the Environmental Protection Agency. The EPA reassured the public that the air was safe when, in fact, it was contained with dangerous asbestos and other chemicals that resulted in illness and death of workers involved in the cleanup. Disclosure of these records enabled workers to get government assistance for treatment.

Intense pressure on the Food and Drug Administration by the tuna industry was revealed in records obtained from the FDA. The non-governmental organization Environmental Working Group found that although tuna contains significant sources of mercury, the FDA failed to mention tuna in initial warnings to pregnant women about the effects of mercury in fish on the mental development of children. The FDA revised its guidelines about fish consumption after the NGO disclosures.

Hundreds of veterans were finally able to receive disability and health benefits that had been denied to them after the Deseret Morning News in Utah published documents showing Army scientists exposed hundreds of soldiers to germ and chemical warfare tests. The Pentagon had denied using nerve agents and deadly germs in experiments on soldiers and refused disability payments but reversed their policy after these FOIA disclosures.

Autism is being diagnosed in children in much higher numbers, indicating a nongenetic cause. The advocacy group of parents, Safe Minds, obtained documents from the Centers for Disease Control through FOIA requests that show CDC research found that the commonly used vaccine preservative thimerosol contains doses of mercury that dramatically increases the risk of autism in children who received the vaccinations in the first three months of life.

Dozens of FOI requests to the Peace Corps were used by the Dayton Daily News to publish a series on the dangers to volunteers - especially women - in other countries from violence, accidents, disease and suicides.

These are only a few of the thousands of examples of how the FOIA is used to hold government accountable. To find out more about the federal Freedom of Information Act and how to use it, go to the Reporters Committee for Freedom of the Press Web site: http://www.rcfp.org/foiact/index.html


A glance at open records in other states

Here's a glance at the way some states handle open records requests:

OMBUDSMAN

State government offices serve as the people's advocate and provide an alternative to litigation in 17 states. An authoritative, independent mediator investigates problems, resolves access disputes between citizens and agencies, issues advisory opinions, interprets statutes, educates and trains government employees and recommends legislative and administrative policy changes to improve access laws. (Arizona, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New York, Tennessee, Utah, Virginia, Washington.)

The attorney general plays an active role in some states in investigating citizen complaints, issuing opinions requested by both citizens and government agencies, and filing lawsuits on behalf of citizens. (Kentucky, Nebraska, North Dakota, Rhode Island, Texas.)

NON-GOVERNMENTAL BODIES RECEIVING PUBLIC FUNDS

Indiana: The definition of "public agency" includes any entity or office that is subject to budget review or audit. Under this definition, non-governmental bodies receiving public funds or benefits would be subject to the act. A "public entity" is defined as any provider of goods, services, or other benefits that is: (1) maintained in whole or in part at public expense; or (2) supported in whole or part by appropriations or public funds or by taxation.

Maryland: A non-governmental body created by statute, but that receives no public funds may be subject to the Public Information Act if: (1) the body serves a public purpose, (2) the government exercises a certain degree of control over it; and (3) it is immune from tort liability.

Arkansas: Records of "any... agency wholly or partially supported by public funds or expending public funds" are subject to the Freedom of Information Act. Arkansas Code Annotated 25-19-103(5)(A). Thus, the act applies to non-governmental entities that receive public funds." Receipt of public funds is not sufficient to make an entity subject to the FOIA, but "the question is whether the private groups carries on 'public business' or is otherwise entwined with the activities of government."

Florida: The public records law may apply to non-governmental bodies, such as charitable organizations or firms contracting with the government, which receive public funds or benefits. The relevant inquiry is whether such non-governmental body is "acting on behalf of any public agency." Courts examine the "totality of factors" which indicate a significant level of involvement by the public agency: "(1) Creation (did the public agency plan any part in the creation of the private entity; (2) Funding (has the public agency provided substantial funds, capital or credit to the private entity; (3) Regulation (does the public agency regulate or otherwise control the private entity's professional activity or judgment; (4) Decision-making process (does the private entity play an integral part in the public agency's decision-making process; (5) Government function (is the private entity exercising a governmental function, and (6) Goals (is the goal of the private entity to help the public agency and the citizens served by the agency)."

EXAMPLES OF STRONG ENFORCEMENT PROVISIONS:

Missouri: Penalties of up to $1,000 may be levied when a preponderance of the evidence shows violation of the access laws. For a purposeful violation, the fine increases to $5,000. A court may require payment of court costs and attorneys fees to a successful plaintiff.

New Jersey: Knowing and willful violation of access statutes carries civil penalties of $1,000 for the initial violation, $2,500 for the second and $5,000 for the third within 10 years of the first violation. Disciplinary proceedings against the violator may be initiated.

Colorado: A person who willfully and knowingly violates the public records law is subject to a $100 fine and/or imprisonment for 90 days, and the records custodian must personally pay a penalty of $25 for each day a record is withheld.

Florida: A violation of the access laws carries fines up to $500. A willful and knowing violation constitutes a first degree misdemeanor and is punishable by up to a $1,000 fine and up to one year in prison. A writ of mandamus can be issued to require records to be open to inspection.

Nebraska: Any person denied access to a record may petition the attorney general to review the matter to determine whether the record may be withheld from public inspection. The attorney general may order the custodian to disclose the record. If the custodian refuses, the requester may file suit or may demand that the attorney general do so. Violation of the public records statutes is a Class III misdemeanor, and any official who violates the statutes may be removed or impeached.

RESPONSE TIME LIMITS

Nebraska: An agency is required to comply with a request "as soon as is practicable and without delay, but not more than four business days after actual receipt of the request." A court order may require more prompt action than that depending on the circumstances.

Missouri: A public records request must be acted upon as soon as possible but no later than three business days after the custodian receives the request. If disclosure is delayed, the custodian must provide a detailed explanation and specific date/time when the record will be available.

Indiana: "A denial is deemed to occur: (a) in the case of a request for the record made in person or by telephone, immediately upon refusal by a person designated by an agency to make records disclosure decisions, or 24 hours after any other employee of the agency refuses to permit inspection and copying of the public record; or (b) in the case of a request by mail or facsimile, seven days after the request has been received and records have not been disclosed. So even if an agency promises to provide the records, but cites inadequate staff resources to search for and copy the records, the request is deemed denied if the record is not produced in that time frame."

Nebraska: An agency is required to comply with a request "as soon as is practicable and without delay, but not more than four business days after actual receipt of the request. A court order may require more prompt action than that depending on the circumstances." A citizen may appeal a denial to the Attorney General who must order an agency to disclose a record if it should be disclosed and file a lawsuit within 15 calendar days if the citizen denied access demands it. Access cases have priority on the court docket.

Colorado: If records are not available when requested, the custodian must set a date and time records will be available not to exceed three working days. In extenuating circumstances, the limit may be extended no longer than 7 days.

POLICE RECORDS

Indiana: Police agencies must now maintain a daily log or record that lists suspected crimes, accidents or complaints, as well as: the time, substance and location of all complaints or requests for assistance received by the agency; the time and nature of the agency's response to all complaints or requests for assistance; and if the incident involves an alleged crime or infraction, the date, time and location of the occurrence, the name and age of any victim unless the victim is a victim of rape, criminal deviate conduct, child molestation or child exploitation, the factual circumstances surrounding the incident, and a general description of any injuries, property or weapons involved. This information must be disclosed.

- RESEARCH BY MISSISSIPPI CENTER FOR FREEDOM OF INFORMATION

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