Note to the task force on FOIA: Just follow the law
By Roy Ockert Jr.
Feb. 25, 2014
A task force has been appointed by the chancellor of the University of Arkansas at Fayetteville, and members of the Arkansas news media have been invited to meet with the group Friday.
I wasn’t one of the 207 people who got an invitation to the meeting, which isn’t surprising since I’m just a retired editor who continues to write a column. I had a conflict anyway.
UA Chancellor G. David Gearhart explained to an Arkansas Democrat-Gazette reporter that he wants the task force to ensure the university provides “transparency in all we do.” That’s an admirable goal, considering what the UA administration has been through over the past year.
If only a fourth of those 207 people actually show up, it will be tough to have much of a discussion in an hour-long meeting, but Laura Jacobs, associate vice chancellor of university relations, suggested in the invitation that the guests should be “doing all the talking, and we will be doing the listening.”
I’ve never been to a meeting conducted by educational administrators where that actually happened.
Jacobs, as chairman of the task force, explained further: “To be clear, this isn’t an interview opportunity, or a news conference, but a conversation to help inform our next steps from an operational standpoint.”
The message also said:
“Some of the topics that may be discussed include ‘What tools would help in FOIA efforts?’ ‘What are some of the issues you’ve encountered?’ ‘How are your expectations of our response to FOIA met?’ ‘Why do you use FOIA as opposed to other methods of inquiry, i.e., asking questions?’”
Dennis Byrd, director of the Arkansas News Bureau and an Arkansas Press Association board member, offered an excellent suggestion: “My immediate thought was they just need to read the law. ...”
Indeed, the APA, attorney general’s office and other organizations collaborate in the publication of the “Arkansas Freedom of Information Handbook,” a handy guide soon to be in its 16th edition. Included is the law itself, which should be a “must read” for every member of the task force.
The problem is that transparency, i.e., complying with an open meetings-open records law, sometimes gets uncomfortable.
In my 30 years as a newspaper editor, the people who had the most trouble, by far, in complying with the FOIA were educational administrators. They want to create a positive public image for their institution, and controlling the message becomes a critical tool. Then something bad happens, and that often leads to internal and external clashes.
University administrators want to run every FOIA request through staff attorneys. For years at Arkansas State University that has meant an automatic 3-day delay. But the law prescribes such a delay only if the record requested “is in active use or storage and therefore not available at the time a citizen asks to examine it.”
UA-Fayetteville, which has more money to play with, apparently devised an even more elaborate system.
The UA system staff has more than a dozen attorneys, and UAF has a large Department of University Relations, whose mission includes helping shape and sustain “a distinctive, nationally respected University of Arkansas brand.” (The 11-person task force includes five members of University Relations, and the office of general counsel will serve in an advisory capacity.)
Both departments, as well as the office of the chancellor, got a severe test last year when the university’s Division of University Advancement was found to have overspent its budget by $4.2 million over two years. In answering a flood of press inquiries about that problem, UA administrators kept changing its system for responding.
In the middle of the controversy was John N. Diamond, hired in 2010 as associate vice chancellor for university relations. While serving as the university’s official spokesman and chief speechwriter, he also answered press requests. Although Diamond had a journalism degree and had taught journalism, his experience was mostly in educational administration.
Diamond customarily fielded FOIA requests from reporters and then shared them with the chancellor, a UA counsel and any other university officers whose duties were related to the request. Messages sometimes flew back and forth about why the request was made, what should be done and who said what. Days stretched into weeks.
Diamond said in legislative testimony in January that he was removed from the process because he advocated release of certain records. Then he was fired — long after the problems in Development — because of insubordination, his superiors said.
Whatever the case, the UA process was cumbersome and doomed to fail the goal of transparency. Not only does running a request through that many people slow things down dramatically, it also increases the chances that somebody will find a reason, whether justifiable or not, to deny the request.
Outside of academia — in city and county government and most state agencies — a reporter generally can submit a request for a public record directly to the custodian of the record. That person should know best whether the record is exempt from disclosure and, if unsure, can request a legal opinion. Normally, it’s a simple process.
That’s what the UA needs: a simple process. Don’t do it by committee. If transparency is the goal, assume that the record requested is public unless there’s a clear reason to believe it’s not. Instead the standard too often has been: How can we keep from disclosing it?
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.