UF project ranks state penalties regarding freedom of information

October 27, 2005

GAINESVILLE, Fla. — Government officials in six states face the toughest civil penalties in the nation if they don’t provide information to the public and the press as required by their laws.

Only Washington, Virginia, New Jersey, New Mexico, Maryland and Utah rated as high as a 5 on a 7-point scale for laws that provide noncriminal penalties for public employees who violate aspects of the public records laws, according to new findings compiled by University of Florida researchers.

The Marion Brechner Center Citizen Access Project at UF’s College of Journalism and Communications found that the six states either provided for a fine for every day the state’s records law was violated or provided steeper fines for additional violations. The six were rated highly by a panel of experts for having penalties punishing violations of state records laws, often for officials’ failure to release records as required by law to individuals, the press, or businesses and organizations.

“Most states with civil penalties provide for only a one-time penalty,” said William F. Chamberlin, director of the Citizen Access Project. “Most penalties are fines up to $1,000 or monetary damages to individuals harmed by the failure to release records.”

The project’s advisory board rates states from 1 to 7, depending on whether a state’s law in a particular category is judged to provide for complete access to government records or no access at all. The laws of the most highly rated states in the study of civil penalties were judged to be “somewhat open.” Sixteen states scored a 4, considered to be neither more open nor more closed. Massachusetts and Kentucky scored a 3 for being “somewhat closed” and 26 states and the District of Columbia scored a 1, completely closed.

The project’s Sunshine Review Board decided that states that had no civil penalty provisions should receive the lowest possible score, a rating given laws that block access to government information. Chamberlin appoints experts on public records laws with backgrounds in law, education and government to the 11-member Sunshine Review Board.

“The project can only rate statutes passed by legislatures and eventually the decisions of the courts,” he said. “What we cannot rate is how those laws are enforced in each state. We don’t know which states are better at using the civil penalties and which states do not.”

Washington state, which the review board rated the highest, allows a judge to fine an official up to $100 for each day he or she is wrongfully denied access to public records.

“Although the Washington law assesses a penalty of $5 to $100 per day a record is withheld, it is more common for judges to assess a $5 penalty,” said Michele Earl-Hubbard, president of the Washington Coalition for Open Government, an independent organization that supports access to government information in the state.

Earl-Hubbard said a Washington man fought public records laws for eight years over a multimillion dollar business deal, and the courts begrudgingly awarded $15 per day. The laws in Washington look strict on paper, but she said they are not utilized to their full potential.

“One of the things that really hurts requestors’ ability to get information is a failure to enforce public records laws,” said Rebecca Daugherty, director of the Freedom of Information Service Center, in Arlington, Va. “The penalties provide a vehicle to obtain that enforcement.”

Many legislators are unaware of public records laws, so knowing about the penalties in certain states through the project can be useful to them, said Daugherty, who serves on the Citizen Access Project Committee advisory board.

“We have had some agencies wait for information they should have access to,” she said. “Public officials should not operate under a threat but should give information. People don’t think about penalties being a part of the law.”

Chamberlin said the most important aspect of the Citizen Access Project data is that citizens can easily discover whether officials can be punished for refusing to give out public records, how their state compares to others with regard to these provisions, and what other states are doing about the problem of public records law enforcement.

The goal of the project is to allow citizens and public officials to better understand public access to local government information in all 50 states. Most of the funding for the project came from Orlando-based media executive Marion Brechner, who established an endowment with a $600,000 gift that triggered a matching grant from the state of Florida. A $250,000 startup grant was provided by the Knight Foundation.

The project will examine every individual statutory provision controlling open meetings and open records in the 50 states, Chamberlin said. The project also examined all of the state’s relevant constitutional provisions and will evaluate all state appellate court decisions.

Results from the Citizen Access Project studies can be found at www.citizenaccess.org.