This article was published on PennLive on March 13, 2016. © 2016 PA Media Group. All rights reserved. It is reprinted here with permission.
The Founding Fathers recognized the power of public records in a democracy. The Declaration of Independence decried government gamesmanship that kept public records away from citizens.
"[The King] calls together legislative bodies at places unusual, uncomfortable and distant from the depository of their public records for the sole purpose of fatiguing them into compliance with his measures."
This week, known as Sunshine Week, is a seven-day window when transparency advocates grade the status of open government.
News organizations rightly recite the rinse and repeat cycle of FOIA fatigue: citizen files a request; the federal government ignores it, or labels it as vague or burdensome and then buries it into what is officially known as the "Complex Queue" for 36 months.
Yes, that's a real case, and similar versions play out across the country under state laws.
Experts also will use this week and this year, which marks the 50th anniversary of the landmark Freedom of Information Act, to write about the ironies of access. For example, do you know the official title of those that handle records requests at the Defense Department and other federal agencies?
They are called the Initial Denial Authority, or IDAs. Or, the irony of the state agency that vehemently denied a record citing national security, while the same record was available for purchase on their website.
If we are to transform FOIA from principle on paper to a robust and real-time practice of putting records in the hands of citizens, we need a new strategy.
We have to retire the failed strategy that is as old the law itself: complaining that it doesn't work; copy fees are too much; there is too much delay. All true. But it still doesn't clear up the clouds, even during Sunshine Week.
The key new strategy for FOIA reform should be to take the complaints directly to the campaign trail, town halls and editorial boards. We must elevate the policy of open government by injecting an open government platform and forcing candidates to commit to specific reforms the same way we have with immigration reform and health care.
Employing this new strategy will remind citizens that access to records isn't just a philosophy. Open government means the release of police body camera footage in Ferguson, Cleveland, Baltimore, Philadelphia, or in your town.
It means being able to obtain water evaluation studies in Flint, from Pennsylvania's Marcellus shale ponds, or your town's water supply. It means seeing financial records that reveal the true players in the 2008 economic meltdown.
The bedrock of a true democracy is open and honest government in which citizens can access the records they own.
We, the people, then must force those contending for their party's nomination in Philadelphia and Cleveland to commit to true reform if they are to earn our coveted votes, financial support and editorial board endorsements.
The candidates must outline how they will eliminate the disgraceful backlog of records requests, the oldest dating back to 1982.
All the candidates, with one notable billionaire businessman exception, have policies on their websites for national security, health care, immigration and education. We must demand that they outline their step-by-step plans to address FOIA reform, meaning access to records in real time. Let's tear down the impenetrable wall, built brick by brick, with every "denied" FOIA response.
This strategy of unrelenting pressure on the political candidates has a proven track record.
The Illinois legislature, including when President Obama was a member, repeatedly failed to rewrite the anemic law that ranked 50th worst in the nation. Tired of FOIA fatigue, a veteran reporter injected FOIA questioning nearly daily into a hotly contested attorney general race.
The one candidate who pledged FOIA reform, Attorney General Lisa Madigan, won, and the reporter kept writing about her promise. Midterm, Madigan created Illinois' first Public Access Counselor, a post I held for five years.
In Pennsylvania, previously ranked 49th worst state, a similar "going public pressure" strategy worked but not by pressuring a single candidate. Rather, a whip smart staffer recognized that nearly every lawmaker's seat was at risk amid several scandals that enveloped the Capitol.
The now-head of the Office of Open Records, Eric Arneson, gamely suggested that his boss, then Republican Majority Leader Dominic Pileggi, rewrite the archaic law to stop the election-loss hemorrhaging that resulted from Bonusgate and the famed lawmakers' midnight pay raises.
The law passed unanimously. And in 2008, then-Gov. Ed Rendell tapped me to create an independent Office of Open Records.
Access to records in Illinois and Pennsylvania has improved a hundredfold, and both states have catapulted into the top five national rankings by transparency advocates.
In creating two state agencies from the ground up, I can tell you that change usually only happens as a result of intense public pressure.
It is only under deep duress (translation: threat of job loss) that politicians hand over public records in the most critical situations. Think Chicago mayor and police video. Think Michigan governor and water studies. Think Pennsylvania attorney general and pornographic emails.
Public pressure pries open government filing cabinets. Thus, this strategy should be used not only by reporters on the campaign trail, but by citizens at town halls. It should be a standard question in all gubernatorial and attorney general races coast to coast: will you commit to FOIA reform? How? When?
As an expert in transparency law, it's not lost on me that the states with among the most-corrupt reputations – among them Illinois, Pennsylvania and New York – are also states that at one time had the weakest records access laws.
Going public with an open records agenda in presidential and down-the-ticket races should be employed until there is real FOIA reform that includes workable timetables and giving binding authority to the federal ombudsman office that was patterned after the Pennsylvania model of an independent OOR. We should employ this strategy immediately: during the next presidential debate.
Open government cannot be an afterthought once a public official is elected.
It must be center stage on the campaign trail, in editorial board sessions and at town halls. When candidates are forced to make open government a priority, it will become a priority for their custodians of records – who, after all, are merely handling those records on behalf of their top boss: the citizenry.
