Scholars explore the differences among states’ implementation of freedom of information laws.
The power to shape policy is decentralized in the United States, giving states significant responsibility. Much is known about public access to information from the federal government, but how readily can the public access information from state governments? In a recent article, Professors Jennifer L. Selin and Jordan M. Butcher explore how state administrative agencies vary in their approaches to transparency.
Analyzing and understanding transparency, according to Selin and Butcher, is worthwhile. They explain that state governments’ size and responsibility has grown significantly in recent decades. Yet, the transparency of state administrative agencies has remained largely unexplored. In addition, Selin and Butcher argue that understanding transparency is important, because transparency is an indicator of good governance and is an essential feature of liberal democracy.
To understand how transparent state governments are, Selin and Butcher explore state freedom of information laws (FOI) laws. FOI laws permit members of the public to request access to records held by administrative agencies, and in response state agencies may release or refuse to release records.
Selin and Butcher compare state FOI laws and explain that the laws themselves vary across states. They then evaluate state agencies’ implementation of those laws, which they explain is critical to understanding states’ approaches to transparency.
Although state FOI laws vary in some ways, Selin and Butcher identify three components that appear in each state’s laws. FOI laws in all states designate who can submit requests, establish requirements for and exemptions to the disclosure of information, and define the procedures the public must follow to dispute an agency’s decision to refuse a request for records.
A review of these three components of FOI laws across the 50 states, Selin and Butcher argue, suggests that states vary in the strength of their transparency regimes. Alaska provides an example of a strong transparency regime—the state allows any person to request public records, requires agencies to respond to requests within ten days, and outlines clear procedures for administrative appeal. Missouri’s transparency regime is weaker by contrast, because it allows only citizens to submit requests, and citizens must abide by stricter guidelines when appealing an adverse agency decision, such as a requirement that they do so within one year of the denial of information.
Although analyzing states’ FOI laws helps shed light on the various transparency regimes across states, Selin and Butcher explain that understanding states’ approaches to implementation is just as critical. Because although governments can pass strong FOI laws, they may actually fail to provide transparency if they lack an administrative mechanism to implement them.
Selin and Butcher highlight a set of characteristics that can facilitate or serve as barriers to FOI implementation. Barriers to implementation include a lack of organizational resources and capacity and a poor culture of compliance with the state’s FOI laws. Selin and Butcher note that strong internal communication that emphasizes the importance of statutorily mandated tasks is a key characteristic for strong FOI implementation.
To evaluate implementation of FOI laws across the 50 states, Selin and Butcher sent a public records request to five agencies in each state and evaluated each agency’s response. The five agencies surveyed in each state focused on agriculture, budget, commerce, education, and health and human services. In their records request, Selin and Butcher asked each agency for a list of names and contact information of agency employees who perform one of several functions, such as budgeting or lobbying. Selin and Butcher stated in the request that the information would be used for an academic research project.
The agencies varied significantly in the completeness, timeliness, and nature of their responses to the request. Selin and Butcher observed these variations in responses across both states and agency type.
Of the 248 agencies in the audit, 193 acknowledged the request, with an average time of confirmation of about nine working days. Of the agencies that acknowledged receipt, 18 asked for clarification of some sort. Across 28 states, 134 agencies denied the request. Of the other agencies, 134 provided at least some requested information, and 112 provided all the requested information.
Agencies also varied in how they fulfilled the request. Some emailed the requested information in a list. Some agencies instead responded with an organizational chart and employee directory so Selin and Butcher could locate the relevant information themselves. Selin and Butcher identified the West Virginia Department of Health and Human Services’ response as their favorite—this agency mailed two burned CDs containing data on hundreds of employees.
Based on their findings, Selin and Butcher concluded that implementation of state FOI laws varies widely across states and across agencies within states. Selin and Butcher did not discover a geographic or demographic pattern in the average number of days it took for all of each state’s agencies to respond to the request. Selin and Butcher did, however, observe variation across agency type—commerce and health agencies provided the least amount of information in response to the requests, and education agencies provided the most amount of information. Selin and Butcher concluded that agency-, as opposed to state-, level factors may influence how state agencies implement transparency regimes.
When researchers have examined government transparency at the state level, they have focused on the content of the state’s FOI laws. The analysis Selin and Butcher provides, however, suggests that while states vary tremendously when it comes to requirements of their FOI laws, truly understanding a state’s transparency regime also requires analysis of how states implement these laws.
