When you seek help from your local government, officials erect information blockades

Local news coverage at The Washington Post, where I worked for nearly 20 years, began to erode as the Marty Baron/Jeff Bezos era got underway in 2013. It then hit rock bottom this year when the once-robust local news staff of dozens of reporters was reduced to about a dozen under Bezos’s latest regime change . Their job is to somehow cover a region of more than 5 million people whose governments spend billions on schools, transportation, housing and other issues close to home. I wish them well. It’s a tough assignment.

Local news and local government matter -now more than ever. Where are people going to look for information and assistance as the Trump administration takes a sledge hammer to the federal government, and the funding cuts ripple across the states?

State and local governments need to contend with the gutting of federal dollars for scientific research, public health, food aid, international aid, local law enforcement, and education. So anyone concerned about those issues needs to look close to home to find out what is happening– and many people are.

Of course, this is not an easy pivot. State and local governments are struggling to make up for billions of dollars in federal cuts. But as they do so, it’s important that members of the public pay close attention – and that local media do the same.

Unfortunately, many of these arms of state and local government – maybe overwhelmed or maybe already steeped in a culture of secrecy - are shutting the doors to the public, instead of welcoming them in. And the local media in many parts of the country remain in crisis, and in many places simply no longer exist.

There are a couple of different ways state and local governments are pushing their constituents to the sidelines. They are doing the Three Ds: Delay, Deflect, Deny the public’s right to know what their governments are doing. This is not particularly new, but it appears to be getting worse even as it is more important because of the Trump cuts. The federal public records operation across the government appears on the verge of shutting down. See for instance, the Nate Jones piece in The Washington Post that I mentioned last week documenting the paralysis of the federal government when it comes to giving out public information to the public.

So go to the state, right? On paper, state public records laws are pretty good. Every state and territory has one and they encourage government transparency. But here’s the hidden problem. Scattered around many state laws are restrictions to public disclosure that aren’t tallied in any one, accessible place on the state government’s website (yes, there are a few exceptions and I will get to that in a moment).

So you could find yourself asking a local or state government for a piece of information, say about a local study about dangerous roads, only to discover that there is some exemption that applies and you can’t get the information. That’s what happened to Richard Boltuck of Bethesda, Md. when he engaged in an epic effort to get underlying documents that explained why the Maryland transportation agency had refused for years to fix a dangerous intersection. Turned out there was a federal law that allowed states – but did not require them – to withhold that information. It’s unlikely anyone in the public would know about that before asking for what they assume is available government information. (You can read more about Richard’s quest in my book Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back https://thenewpress.org/books/backroom-deals-in-our-backyards/)

Or take the experience of Elouise McDaniel who asked Irvington, N.J. for information about the municipality’s finances. When McDaniel, a retired teacher, was 82, she was sued by Irvington for supposedly filing too many requests. Of course if the government had been more transparent to begin with she would not have had to keep asking for information. Irvington later dropped the lawsuit after embarrassing publicity about the case. But it pointed up an ongoing and troubling trend across the country – the willingness of state and local governments to label someone who who persists in filing requests as a “vexatious” requestor. [I spoke with Elouise at this year’s Sunshine Fest in DC. You can watch the video here).

Several states already allow such suits. My question is: who is qualified to decide who is so annoying that their requests for public information should be denied? And is being annoying a violation of any law? Ask any reporter how annoying they must be to get a basic piece of information from, say the Trump administration, or the local mayor. If the government is ignoring you and nevertheless you persist, who’s in the wrong here?

Other restrictions that states have or want to impose on public records requestors include refusing to pay attorney’s fees and expenses to someone who successfully sues a state or local government because they were stonewalling the public; and besides the vexaciou move, trying to place limits on the number of requests that governments must fulfill from a single requestor (McDaniel filed about 75 requests over three years).

In New Jersey, Gov. Phil Murphy (D) signed into law in 2024 new restrictions on open records, despite opposition from a majority of the state’s residents. (Read a summary of Murphy’s clamp down here.)

In Pennsylvania, as in many states, governments are allowed to withhold investigative information while an investigation is ongoing. But in Pennsylvania, unlike many states, the ban on giving out that information can last – forever.

Washington state has 700 exemptions to public disclosure. At least they are on a publicly accessible list, but really? (Here’s a list that George Erb of the Washington Coalition for Open Government kindly directed me to. When you open the link, George says, scroll down
to “Public Disclosure Exemptions” and click on bar to expand the menu.
You’ll see a list of annual exemption lists going back to 2012).

The federal Freedom of Information Act, which no administration has ever been great at living up to, has nine exemptions – although the caselaw and other opinions affecting those exemptions are spread around the federal government’s websites and not easily unearthed. FOIA Wiki is a good place to start.

The entire body of law -both federal and state – on what constituents a trade secret that is proprietary and thus exempt from disclosure – is enormous. It’s a topic that has vexed me for some time, affected the people in my book substantially when it was used – and abused against them – and is something I will examine in a future piece. Too often it is an easy out for a state or local government, because they will ask the contractor they are paying with public funds to review a records request to allow the contractor to decide what is a trade secret, and therefore exempt from handing out to the public.

Not surprisingly, a private company is likely to err on the side of claiming something should be kept secret, knowing that the state or local government is ill equipped to challenge that designation. That’s what happened in West Virginia several years ago when a private water company blacked out the 800 number for the state’s public service commission as it advised the state on responding to a public records request.

Megan Rhyne, director of the Virginia Coalition for Open Government, is a longtime expert on open government issues. She says that exemptions per se aren’t as big a problem as is enforcement of open government laws - or lack thereof.

Megan said in an email:

“Virginia is closer to 150 discretionary exemptions, broken down into eight categories that roughly mirror the federal FOIA. In addition, there are at least that many more prohibitions on release scattered throughout the Code of Virginia.
I think the focus on the number of exemptions can paint a slightly misleading portrait, though. Don’t get me wrong: there are TOO MANY exemptions and prohibitions, but..”

Rhyne notes that government has grown over the years and become more complex, and that has led to additional exemptions.

“The policy question for legislators is, does it make sense to say that one gets an exemption and the other doesn’t? Of course, I would likely say -- and probably did during the legislative process -- that the FIRST exemption shouldn’t have been added. But once it HAS been added, it’s a much harder call to say that similar situations shouldn’t also be protected.”

“Half of the problem isn’t the words on the page but how the exemptions are applied. Will state and local officials apply them narrowly, as our FOIA policy statement directs, or are they going to push the envelope until someone pushes back in court?”

In Idaho, according to Betsy Russell, president of Idahoans for Open Government, there are more than 100 exemptions to disclosure of government information. But like Megan Rhyne, she says the number of exemptions isn’t really as much of an issue as is lax enforcement, high fees for records requests and other information blockades erected by governments. Betsy said in an email:

“… I much prefer having 131 specific, narrow exemptions to having, say, just three to five very broad exemptions - something some have proposed as a better system than ours here, but I’ve never thought it would be an improvement. We’ve had agencies claim that broad exemptions exist, and try to apply them to virtually anything they want to. Our law doesn’t allow that, and when they’ve tried that, they’ve lost big in court. I really think specific exemptions are the way to go. Each of our existing exemptions was debated in full in the Legislature, and many are clearly warranted (though some, in my view, weren’t and shouldn’t have been enacted).

…. Even with more than 100 exemptions, most of our records in our state are open and subject to disclosure. We do have other issues, including costs, compliance with timelines, etc. But the sheer number of exemptions, in my view, is not the problem.”

These people are close to the ground in the government transparency world and their perspective is extremely important as they strive to keep government more transparent.

Still, I keep thinking about people like Eloise McDaniel and Richard Boltuck who aren’t experts and just want some information from their government. Why do they have to waste their time filing public records requests, waiting in the case of Maryland, at least 30 days, only to be told that they can’t get the information because of some exemption they never even heard of and isn’t easy to find?

Given the ever tightening budgets that state and local governments must contend with – and the requirement that they balance their budgets, unlike the feds, I can understand if a public official needs to choose between fixing the roof of the elementary school, and paying a staff member to respond to public records requests in a timely fashion. The school roof likely gets priority.

But it doesn’t have to be either/or.

State and local governments should spend money on digitizing their documents and putting them online so that you don’t always have to file a formal records request. They should, like Washington state, list their exemptions in an easily findable place on their websites. This also would make it easier to challenge those exemptions if the public knows what they are.

And then, of course, there is that tried and true method: if you can, go in person, get to know the person behind the desk who can help you find what you are looking for, and skip the formal request system altogether if at all possible. It can work – and it may still be the way to promote transparency for the people whose taxes pay for governments to operate.

If you want to read more about state and local secrecy and the harm it inflicts on communities, my publisher The New Press is offering a 30 percent discount on my book Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back. You can order it here and use coupon code Backroom30.

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