Sunshine Week 2015 - March 15-21
Sunshine Week is a national initiative to promote dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and all others interested in the public’s right to know. Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.
The American Society of News Editors (ASNE) has collected and posted resources for educators and students for Sunshine Week. Visit their website at www.schooljournalism.org
Click here to access a set of graphic organizers and a list of web resources for teachers about Sunshine Week!
Below you'll find commentary and editorials about the importance of Freedom of Information. This content is available for all NYNPA member publications to reprint with attribution to increase public awareness of Sunshine Week and their right to know. Additional content will be added as it is received.
Robert J. Freeman, Executive Director
Committee on Open Government
Department of State
The Freedom of Information Law and Email: Emerging Issues
The New York Freedom of Information Law, known by many as “FOIL”, was initially enacted on the heels of Watergate in 1974, the year that the federal Freedom of Information Act was amended. Our law was weak, and it was completely revised in 1978.
Think about 1978 - - high tech was an electric typewriter, we used carbon paper to make copies, there was no internet or email, and how do you have a phone without a cord? We’ve come a long way, and when we were drafting the essence of the current FOIL , we got lucky. We tried to correct the deficiencies in the federal Act and included a definition of the term “record.”
Since ’78, FOIL has defined “record” to mean “any information kept, held, filed, produced or reproduced by with or for an agency or the state legislature, in any physical form whatsoever…” An “agency” is any unit of state or local government, so if a record is maintained by or for a government agency, whether it’s on paper, a tape or video recording, or email, it falls within the coverage of FOIL.
From there, FOIL is based on a presumption of access. All agency records are accessible, except those records or portions of records that may be withheld in accordance with a series of exceptions listed in the law. The exceptions are based on common sense and the likelihood that disclosure would result in a serious invasion of personal privacy, impairment of a governmental function, or sometimes damage to the competitive position of a commercial enterprise.
People ask often whether email must be disclosed. The answer is that email is simply a method of transmitting a record. As in the case of old-fashioned paper records, the content of email and the impact of disclosure are the key factors in determining the extent to which email must be disclosed, or conversely, may be withheld.
What if a town board or school board member, for example, has no office and communicates via email concerning that person’s governmental functions from his or her home and uses a private email address? Yes, it’s a “record” subject to rights of access granted by FOIL. The next question is whether it’s available, and again, that is dependent on its content.
What if one board member sends email to another and offers a recommendation concerning a certain issue, and the other board member emails back and expresses a different opinion? Those kinds of internal government communications that consist of advice, opinions or recommendations may be withheld, according to the state’s highest court. But if the board member backs up an opinion with statistics or facts, those portions of the record ordinarily have to be disclosed.
What if a school board member receives email from a parent who describes a problem involving the parent’s child in school? Something every parent should know is that federal law gives parents of minors rights of access to school records pertaining to their children. But that law also prohibits disclosure of a record about a student to the public, unless a parent of the student consents to disclosure.
Often a law, such as FOIL, will require disclosure to the subjects of records or perhaps the parents of a minor child, but protect personal privacy if the records are requested by others.
One of the topics we’ve heard about lately involves how long email must be kept. The fact is that FOIL deals with access to government records.
Other laws pertain to the retention and disposal of records. In New York, the State Archives, a branch of the State Education Department, develops schedules that prescribe minimum retention requirements for various kinds of records. The more important the record, the longer it usually must be kept. Due to records retention requirements, government cannot simply destroy records because someone doesn’t want them around.
We will probably hear more about email with time. It used to involve the brief, informal note. Today, it’s part of our daily lives, and often, it’s the email message, not the piece of paper, that is critical, inside and outside of government.
Surveillance, Bodycams and…Aretha Franklin
Cameras of all sorts are everywhere. Sometimes what they records is routine and innocuous, but often the events that are captured raise questions.
When video recordings are prepared by or for a government agency in New York, they are “records” subject to rights conferred by Freedom of Information Law (FOIL). As in all instances, their content and the effects of disclosure are the key factors in determining which portions are public or may be withheld.
If a surveillance camera is mounted on a police vehicle in plain sight in the park in Greenwich Village (a real occurrence) and captures what anyone in a public place can see, the video would be available under FOIL to anyone. Its presence, in fact, deterred bad behavior. But if a camera is hidden and placed in a high crime area to record what may be criminal activity, the recording might justifiably be withheld, for it could indicate its placement and provide potential lawbreakers with a means of evading detection or effective law enforcement.
Those are easy examples, but what about police officers’ use of bodycams? If a video involves the commission of a crime, disclosure might interfere with an investigation or deprive a person of a right to a fair trial. If it involves the person on the street who’s a witness, disclosure could jeopardize that person’s safety. If it’s the victim of a crime and depicts or captures a person grimacing in pain, disclosure, in the words of FOIL, might result in an unwarranted invasion of privacy. If it’s a victim of a sex offense or a juvenile who’s being arrested, the government is prohibited from disclosing.
What if the person depicted requests the video? That person can’t invade his or her own privacy, but others might also be visible, and there may privacy considerations relative to those people. What if the person depicted is claiming police brutality? Would a police department claim that the video is a “personnel record” that is confidential? What if the video involves an event of significant public interest, such as a shooting, a racial incident or a riot – would the public interest outweigh the government’s interest in withholding?
And what about the administrative and technology-related issues - - how long should the videos be retained? What does it cost to store them? When a FOIL request is made, a video must be reviewed in real time to determine which portions are public or deniable. If an enterprising reporter knows that fifty police officers in a city’s police department wear bodycams and record an hour a day, and the reporter requests the video covering a period of a month, how long can the Department reasonably take to respond? Should there be a special provision of law establishing a fee for reviewing and reproducing the video?
Accountability, privacy, safety and protecting the public are goals easy to express, but in today’s surveillance society, nobody has all the answers. That’s why the “Aretha Franklin Principle” is so relevant. No it’s not R-E-S-P-E-C-T, the instant response of most. It’s “You Better Think.” We’d all better think before diving headfirst into what clearly will create a series of issues and problems.
Mark C. Mahoney
Editorial Page Editor,
The Daily Gazette
Citizen Involvement Required for Open Government
The term, "open government," is kind of a misnomer.
Government isn't really "open" in the purest sense.
Sometimes you have to knock on the door to get access. Sometimes, you have to pull the door open. And sometimes, you have to kick it in.
If citizens want to know what their government is doing, they can't just be passive observers and expect it to come to them. Cracking open the secrets of government requires a proactive approach, whether it be filing requests for information or standing up at a public meeting and demanding to know why a board is discussing certain matters in secret, or simply accessing information online.
It can't just be left to the media or good-government groups to do all the work. Citizens have a responsibility, and the ability, to demand that government remain open and to take steps to ensure that it is.
Government affects us all.
You might not be inclined to delve into Hillary Clinton's secret State Department emails being held on her private accounts. And most of us don't have access to the documents on government spying that the Edward Snowdens of the world can tap into.
But there is information that citizens need to know about -- vital information about the operation of our governments -- that has a direct impact on our lives. It might relate to municipal budgets, government employee salaries, local contracts, neighboring property values or other matters that directly affect your quality of life and your wallet.
More and more, federal, state and local government bodies are using the Internet to make government more accessible. Government websites often post information that the public might want to know, such as meeting notices and agendas, copies of contracts, reports, budgets, public employee pension and salary information, and other vital documents.
But not all information is posted online. Even with greater electronic access, many government agencies still aren't going to give out information without someone making an effort to get it.
In New York, we have two basic avenues of access: the Freedom of Information Law, commonly known as FOIL, and the state Open Meetings Law. For information from the federal government, it's the Freedom of Information Act, or FOIA. Individual states have their own open government statutes.
The New York Freedom of Information Law covers access to documents, while the Open Meetings Law relates to access to meetings. The state Committee on Open Government maintains a very active and informative website -- www.dos.ny.gov/coog -- that provides information about those respective laws and gives citizens the tools they need to access information. It includes information about what types of documents and meetings are available to the public, short instructional videos on how to obtain information or access, templates of letters the public can use to request documents, and advisory opinions on specific topics of interest. These sites are available for use by the general public to help them get through those doors.
The federal government maintains a similar website for the Freedom of Information Act -- www.foia.gov -- that includes information about the federal law, information on how to obtain records, and links to information and reports commonly sought by the public.
If you request information, don't always assume the government will just hand it over. That's when kicking the door comes into play. Appeal when you've been wrongly denied access. Share your experiences with your neighbors and on social media. Complain at public meetings.
Contact your elected officials directly. Let the media know when you've been stonewalled. Many news organizations and individual newspapers are happy to get involved when readers are denied access to records or meetings.
As American citizens, we have a right to know what the government is doing on our behalf.
If the government won't tell us, it's up to us to demand it.
Freeze needed on removal or deletion of government emails
Deleting an email is the same as putting a piece of paper through the shredder.
Keeping an email or text message related to government business in a private account is akin to slipping a document in your briefcase and walking out the door with it.
More and more — at the federal, state and local levels — we're seeing government employees playing fast and loose with open government laws by treating emails as something less secure and less vital than paper documents.
It's happening at the state level, we saw, as Gov. Andrew Cuomo instructed state agencies under his authority to automatically delete what they consider to be extraneous emails after just three months, only holding onto documents the employees believe should be saved.
Much ado about nothing, some have said. Hardly.
Already, the automatic deletion policy has become an issue in a case involving a lawsuit over the Schenectady-based Wandering Dago food truck at the Saratoga thoroughbred track. Potentially vital documents sought in the suit were apparently deleted under the governor's policy, despite guidelines requiring that documents that might be the subject of litigation be retained.
It's happening on a municipal level, for instance, in the Montgomery County town of Palatine, over a Freedom of Information Law request by a citizen for documents related to a controversial new town hall project. A clerk apparently deleted emails related to the project because she didn't know she was supposed to keep them.
At the federal level, on a slightly different tack, former U.S. Secretary of State Hillary Clinton and her aides apparently conducted State Department business through personal email accounts instead of government accounts. This has raised questions about the security of the documents and about whether Clinton and her aides hid or deleted documents that should have been retained for public scrutiny.
Not every email generated by a government agency needs to be saved forever, just as not every piece of paper does. The problem is that in the age of electronic media, many people in government don't see electronic documents and paper documents as the same thing, which they are. We're used to routinely clearing spam emails out of our personal Yahoo accounts, so we apply the same practices to government documents. But government documents need to be treated with much more scrutiny and security than those in a personal account.
It appears that many public officials are either deliberately deleting electronic correspondence or routinely discarding it for the convenience of making email accounts easier to manage.
It's gotten out of hand, and it has to stop.
We should not have to read any other accounts of government documents being inadvertently or purposely deleted, or of any other documents being held in private accounts for "convenience" or to keep them out of the public's view.
Government bodies that don't have specific policies regarding the retention of electronic government documents in direct adherence to federal and state open government laws need to halt all deletion or removal of electronic documents until specific rules that respect the public's right to know are created and put in place.
That includes imposing a freeze on the governor's 90-day deletion policy and any other similar government purges.
As long as public documents are being deleted, the citizens can't trust that they're getting a true and complete picture of their government in action.
Sunshine Week is for all of us
As American citizens we regularly celebrate our freedom and proclaim our country to be the best in the world.
But we could do better.
That’s why Sunshine Week was created. The American Society of News Editors (ASNE), of which I am a member and a past board member, created the event 10 years ago to draw attention that the public has a right to know what its government is doing, and why.
This is not just something for journalists.
Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their better and their communities stronger.
Beginning on Sunday and throughout the rest of the week, you will be reading more about your rights as a citizen and the extent that government goes to keep information secret.
The current situation with government emails in state government is a perfect example.
I urge all our readers to review the stories that will lead our Sunday newspaper and our editorial on Sunday’s opinion page.
I urge you to educate yourselves and know what your rights are to be better citizens.
We should all be celebrating Sunshine Week.
The Democrat & Chronicle
Sunshine Week: Find out who's been watching you
Everybody wants a piece of us. Some background here, some facts there, some images squirreled away on a server for safekeeping.
In today's big-data world, government agencies and private companies compile information about each of us, giving rise to concern about what, exactly, they're doing with it. It is virtually impossible to stop data collectors from collecting; in many cases, we have no choice but to turn over bits of our personal lives in return for access to the staples of modern American life.
Like, say, owning and driving a car.
To get a license to drive a car or to obtain a sanctioned photo identification card, New Yorkers must surrender the basics about ourselves to the state government. When we buy and register a car or truck, we surrender more information. When we drive it down the street, we may surrender even more.
All of that information is kept by state agencies. They use it to enforce vehicle and traffic laws and to hunt for criminals and scofflaws, among other things. But much of the information is offered for sale to all sorts of private-sector companies. They make many other uses of it.
By and large, individual New Yorkers have no say-so over who gets to see their personal motor-vehicle data or how it's used.
But we can at least find out who's using it. Here's how.
Who's looking you up?
The state demands your name, birth date, eye color, address and a head shot in return for a driver's license or photo ID. It keeps track of traffic violations, drunken-driving arrests and accidents in which licensed drivers are involved. If you register a vehicle, the state keeps a record of that as well.
The state Department of Motor Vehicles makes this information available online to police, many of whom can access it directly from their patrol cars. It also goes to other state and local government agencies and many private parties. We've reported on the availability and safeguarding of this data in a story published Tuesday, and also dug into the topic previously.
Police don't pay to access it, but New York makes several million dollars a year selling information to others.
You have the right to find out who has been searching for information about you in the DMV databases.
What you find could surprise you. In Minnesota, some citizens were stunned to learn several years ago that they'd been looked up dozens or hundreds of times in that state's motor-vehicle records. Women, particularly female television news figures and others in the public eye, were the most frequent victims.
New York says safeguards on its data should prevent that sort of thing here.
I found about two dozen occasions when my name or plate number were searched in the DMV databases by police officers or others. But I'm a dull, middle-aged male reporter.
I wonder what some of our local TV reporters or anchors would find.
To find out who has been looking you up, you can file a request with the agency under the state Freedom of Information law. I filed one in November for records of all searches for my name or plate number.
The response I received in December raised unanswered questions and less detail than I would have liked, but it nonetheless was interesting.
View the data I received here.
Police officers ran my plate, my name or my driver ID numbers 14 times in nine years. The response does not provide detail about the agency or location of the queries, but I can recall being pulled over by a police officer only once in that time period.
The other 13 times? Some likely were cases when an officer pulled up behind me at a red light or on the highway and wondered who I was.
Of note, someone ran my plate and then my driver ID number on June 26, 2007, when I covered a contentious public meeting in Victor about a much-publicized environmental contamination issue. Could an officer have been checking cars in the parking lot to see who was the meeting? I'll never know.
My name or plate were looked up four times by DMV employees and once by an employee in a Monroe County motor-vehicle office; I assume these were related to license renewals or car registrations.
There also was an inquiry by an insurance company and one by someone using a private data-aggregation service. Two more were made by me as I looked myself up to show co-workers how to use our dial-up access to the DMV database. (The state, citing a fear of lawsuits, ended all media access in 2010.)
There was an inquiry by someone in the state Attorney General's Office that may or may not have been directed at me, and three by officials who I'm pretty sure were looking for a different Steve Orr.
And I was informed that two parties, including the newspaper's human resources department, had registered me with a DMV service that automatically sends out notices when my driver's license status has changed.
To file your own FOIL request, you may craft your own, use our sample request or fill out the form on this DMV web page. The request may be emailed to FOIL@dmv.state.ny.us or sent via the postal service to NYS DMV, FOIL Office, 6 Empire State Plaza Room 222, Albany, NY 12228
Who's photographing your plates?
License-plate reader cameras mounted on cars or placed at fixed locations capture images of the plates on passing vehicles and turn them into a record of where and when that vehicle was spotted.
Law enforcement agencies in the Rochester area and elsewhere in New York are constantly capturing these images and using them to locate stolen cars or people for whom warrants have been issued. But as the
Democrat and Chronicle has reported agencies have accumulated tens of millions of these records and plan on keeping them for years, a practice that's strongly criticized by civil libertarians.
Private companies, including at least one in Rochester, also collect license-plate records and make them available for sale to private buyers.
We have no way to know if our vehicles have been photographed by a private company or who might have purchased those images in the data marketplace.
But we can find out when and where we've been tracked by law enforcement in Monroe County.
That privilege — no, make that a right — comes due to a lawsuit filed by the Democrat and Chronicle over the county refusal to honor a FOIL request we filed last summer for license-plate camera records made of my vehicle and several others.
In a January ruling on our lawsuit, state Supreme Court Justice John Ark said citizens have the right to see records collected about their own vehicle. (He also held that the public does not have a right under the FOIL law to see records of government-owned vehicles.)
View the records I received here:
Ark directed the parties to draft a procedure that people could follow to obtain license-plate camera records of their vehicles. That effort is on hold, however, while the Democrat and Chronicle considers whether to appeal the portion of his ruling that involved government vehicles.
In the interim, I see no reason why you can't file your own FOIL request with Monroe County as I did. You can use the county's online request form, or use our sample request.
As reflected in that sample request, you may ask for records only of a vehicle of which you're the registered owner. To be safe, you should provide documentation to verifies your ownership of the car or truck in question.
About Sunshine Week
This week is Sunshine Week, a national campaign celebrated each March to highlight governments' open records laws. News organizations across the country started the effort — now in its 10th year — to push for better Freedom of Information laws and expanded enforcement. It was launched by the American Society of News Editors in March 2005.
Additional editorials from around NYS will be added to this page as they are received. For more Sunshine Week ideas and resources from across the country, go to http://sunshineweek.rcfp.org/
The illustration below is an editorial cartoon used here with permission created by Robert Ariail, Universal Uclick Syndicate. All rights reserved.
This page was last updated 3/20/2015.
Previous Sunshine Week content is still available for download.
- Click here to access the eight newspaper in education features created for 2012 (3 column x 8 inches) - an overview of NYS FOIL, Open Meetings, How to gain access to records and one freature on Freedom of Information and NYS Courts.
- Click here to access the five-part series of features highlights just a few of the websites with reports and other data that may be of interest to students and the general public. Graphic organizers to accompany these features are also available here as PDF download. The topics included:
• What is “E-Government”? – A brief summary of our “Cyber Sunshine” focus
• Vehicle Safety – Highway Safety Data
• Food Safety – Restaurant Inspection Reports
• School Safety – Violence and Disruptive Incident Reports
- Finally, click here to access five public service announcements in PDF format (2 columns x 6 inches) that can be use to promote Sunshine Week
If you have any questions or comments, please contact Mary Miller at email@example.com or call (518) 449-1667.
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