Year in FOIA 2018: State law rundown

Year in FOIA 2018: State law rundown

Written by
Edited by JPat Brown

Transparency advocates this year spearheaded powerful movements to change the course of public records laws in their state. From newly formed legislative taskforces to the passage of transparency bills, 2018 was a pivotal year for change in state public records laws.

Public records advocates have been hard at work fighting unfair practices in the law and pointing to the inconsistencies caused by vague legal language. Despite these efforts, court rulings and legalities haven’t necessarily favored requesters this year.

Earlier this year, Washington state officials formed a new Legislative Task Force on public records to tackle the PRA as it pertains to their state legislature. The state’s law holds a grey area for the Legislative branch as it’s unclear if the legislature is excluded from public records law. The Washington Coalition for Open Government continues to be involved in task force meetings and is preparing to release recommendations this month.

Similarly, Tennessee formed a committee to review the states 500+ exemptions. Currently, there is no review process to track exemptions and their enactment into the law. Yet this year, lawmakers realized the obstacles exemptions can cause when it comes to oversight and transparency. The Ad Hoc committee is currently drafting recommendations to sunset some exemptions, which is a major victory for requesters looking to get records in the new year. The same holds true for Massachusetts as lawmakers also formed a Special Legislative Taskforce to review the Governor, Judiciary, and Legislative exemptions to public records law.

Even more exemptions were found this year in state Legislatures like Iowa, Massachusetts, Minnesota, and Oklahoma are all. All of these states exempt their Legislatures from public records laws. Defenders of the practice argued that these states are following standards set by federal FOIA law, which does exempt Congress. Nonetheless, advocates in these states continue to lead several efforts to override legislative exemptions written in the law. Similarly, a Virginia Judge ruled this year that the state Judiciary is exempt from public records law. Yet that idea isn’t explicitly stated within Virginia law.

Clearly, grey areas n records law were a major issue for access and oversight this year. We saw how the New York legislature isn’t explicitly exempt from public records law, but details a handful of records that are publically available and required to be public. We also uncovered Louisiana’s minimum age to file a public records request in the state and Vermont’s public records law exempting officials private email communications. Plus, our MuckRock requests show the Portland Police Bureau in Oregon requires a prepayment before they begin processing any request. Oregon public records law doesn’t necessarily bar the practice, but also doesn’t approve of it.

Transparency into law enforcement agencies was also big this year. In California, Governor Brown signed into law two pieces of legislation that that unlock internal records of police misconduct and bring body camera footage to the public. We followed up with California police departments and many of them are preparring to comply with the new laws in the new year. We also found discrepencies within police departments compliance to records law. Access to police records continues to be an issue across the nation with notorious investigatory and privacy exemptions cited to withold records.

We tried to hunt down the best public records law in the nation, but advocates in each state kept pointing to flaws within their state records law. Yet, one lawyer said a unified public records law is the way to go. It would create better access for the people and an ease for government.

Additionally, we delved into vexatious requester laws, which would bar access to requesters who made numerous “tedious” requests to agencies. Legislation was signed in Hawaii in 2010 to make vexatious requester laws a reality in the state. Yet the law sunset years after and now, no state holds a similar practice in their records law.

We also dug into Kentucky public records law and found that requests can only be submitted via fax, snail mail, or hand delivered, accroding to KRS 61.872(2). Plus, the state’s Attorney General ruled last year that email is not a statutorily recognized method of submiting requests.

We also explored how university records are pretty tough to access, especially if they are locked behind private institutions that are not required to abide by FOIA or state records laws. Additionally, a newspaper in the state faced a year long-battle to get records from a state agency. Yet legislators put in place an exemption that blocks access to the records that were being requested. Luckily, a circuit judge ruled that the newspaper would still get the records, but what will be released exactly remains a mystery.

A quick look into the November elections shows transparency measures on San Francisco and Nevada state ballots. Voters took to the polls and passed two transparency initiatives. Nevada passed Marsy’s Law to include victims rights in the state’s constitution and San Francisco passed the Privacy First Measure amending the city charter to protect personal constituent information. 2019 will show us how these two measure truly bode for privacy and oversight.

Advocacy and legislation in 2018 have shinned light on issues within state records law and set up steps to change inconsistencies within the law. Many unresolved issues will roll over to the new year, and we have yet to see national change for better records law. We’ll keep you updated on what happens with the state of state public records law in the new year. Make sure to send us your record stories and keep us updated on your own findings.

Happy filing in 2019!

MuckRock’s Year in FOIA: 2018

How our transparency community grew this year

Biggest stories of the year

The year in Projects

Sunshine Spotlight: Massachusetts

The top five top five lists of the year

Image via US National Archives Flickr