Information newsletter
Issue 04(28), April 2006

Interview: The General Public Needs to Use the Law

Janon Fisher is a freelancer for the New York Times. He met Bulgarian court reporters and investigative journalists during the period April 17-21, 2006 in Sofia. He spoke with Diana Bancheva from AIP about the purpose of his visit and his journalist experience with the freedom of information.

Mr. Fisher, what is the occasion of your visit here in Bulgaria?

I'm here on a state department grant to the Balkan Investigation Reporting Network to teach Bulgarian journalists how the US court system is reported on by the US press in order to give them a reference for the coming judicial reforms that have been brought about because of the pressure from the EU to reform the judiciary system here.

And how's the US judicial system working in terms of access to information? Is it easy or difficult for journalist to obtain information?

In the US, the court system, like in Bulgaria, is a public forum and the court records are usually very accessible. They are sometimes available on the Internet through web sites on a federal level. On the state level, it is a matter of going to the court clerks' office, giving them a name or a docket number of a case and receiving the information. Sometimes, the prosecutor will give you some of the information if it's public. Most of the information can be accessed through the clerks' office. So, it’s a highly public and transparent system for the courts. There are some aspects that are not open, but it's very limited and that's the tradition – keeping it an open form so that people can see how justice is administered and abuses don't take place.

The limits to the access to information: investigative files to certain extent are not considered public. In the family court, information about child abuse and financial information in cases of divorce. In some cases, confidential information is not accessible in courts because of retribution. For example, if someone's testifying against an organized crime member, sometimes their identity might be withheld in court documents. However, there is very little tolerance in the court system for secrecy. So, for the most part, all the information is considered public.

Then on what grounds are you suing the attorney general of New Jursey?

The state of NJ revised its Public Records Law to reform the law because the law was not effective. And in that reform they set up a council that would review requests that were in dispute. If a government agency refused a request, the requestor, a member of the public can go to this council and file a complaint. This council will perform an investigation into why the records were withheld and if they were releasable or not. The council, however, once it was implemented became more of a hindrance to the release of information than it was of help. Sometimes, it took years for them to decide whether the information should have been released or not. Because of that I made a request to that government agency for their records to determine why they were taking so long, what sort of internal controls they had; just to try to find out what was holding them back ; why they weren't releasing information or determining why the information wasn't released. I requested information about their payroll, their budget. I asked for the e-mails they were sending back and forth to each other regarding processing of complaints. As result, they told me that my request would cost 1,877 USD. They asked me if I wanted to pay that. I said, how many pages are the records and what exactly I was paying for. I am a good consumer, I don't pay for something when I don't know what it is. They said the request had not been processed and they could not tell me how many pages they were gonna give me. But I am suspicious, how do you know it's such a specific number – 1,877 and I think 93 cents. But they don't know how many pages they were gonna to give me. In NJ they can only charge for copying costs and to some extent a small charge for processing of the information. So, they told me that I was going to be charged that much money, but they told me that they hadn't processed the request. At that point I had a strong suspicion that I was being lied to. So, I filed a complaint before the government record council for the information. This case is a little bit complicated because I've brought a complaint to the same agency that is resisting me. Therefore, it was kind of weird here, like a house of mirrors. Then, once I filed that complaint I waited for about a month. Then I filed another request to the agency. I requested any information, any e-mails that they had sent to each other about how to establish this 1,877 fee. I wanted to know why they were charging this much money. At this point I established myself as a big pain in their ass, but as a result of this, the council had to go to an outside law firm, not to the attorney general's office, who usually advises them on legal issues. They went to an outside law firm, which determined they had violated the law. They appealed. They tried to stay the decision. That decision was upheld by the head of the records council. They appealed to the court system. Right now, I made my request in March 2004, and we are still waiting to find out how it is gonna end out. I believe I will win. I think that as a result, they were embarrassed by their foot dragging and they forced to quicken the processing of the requests.

To this extent, I was already effective in making this request. I also forced them to look at the contradiction or the conflict of interests in having a law firm or having an attorney general who is processing requests and also judging or offering legal advise on whether or not to release information about itself. So, they had to re-look at that. It’s still not a perfect agency by any regard. They still have a lot of problems. I think, it's the culture of government to resist any kind of scrutiny.

Do you think that by submitting requests and asking about information that should be published, active citizens can influence and change the way government works? Make it more transparent and accountable?

I think, it can be effective in just showing people or forcing politicians to justify their actions in withholding information and keeping the public in the dark. Often times, what you find is that they don't have any good excuses, they don't know why they are withholding the information or they are trying to hide something. In these cases, you've told the public something and the public can learn something about how government is administered by filing these requests. I think, a lot of times, they are embarrassed by their own excuses. It makes them reassess their secrecy.

Can you say that government has become more secret during the last couple of years?

I would agree with that a 100 percent. After the terrorist attacks in the US, the government has used national security in many ways. It has abused national security as a reason to withhold information from the public. A lot of people describe the process as a pendulum that swings towards secrecy on one hand, and transparency on another. I think that the pendulum is still swinging towards secrecy, but it slowed down to some extent and I think it might be on its way back towards transparency. The American public has relaxed a little bit and they recognized that it's important to know what your government is doing. Another sidenote that a lot of people don't know – the original FOIA of the US was passed in 1966, and a co-signer was Donald Rumsfeld. He didn't draft the bill. Every bill has to have a co-signer. There has to be two politicians. One saying: this is a good idea, I have drafted it as a law, the other one shall say: I have supported that.

On what occasions you have used the FOIA?

I have used it in many different occasions. I've used it to get access to Frank Sinatra's FBI file. Jack Hoover, the director of FBI, liked investigating celebrities, not only when they violated the law, but in their everyday lives. He would use that information as a way to increase his power, or just because he wanted to ingratiate himself into the favor of the politicians. This was a significant cost to the taxpayer but no cost to the particular politician or celebrity. Wasting taxpayers money. FBI mandate is to investigate violations of the federal law, and this was outside of his purview. We published that story.

The irony is that journalists are not the best advocates for the FOIA. I think that daily deadline pressure makes FOIA unattractive to journalists. Many times, I've been running to editors, who don't want to hear about my fights for open records with government agencies. What they want is a story that will fit in the slot that they have open in the paper for the next day. This is understandable and I don't blame them for that. So, it's the public that really needs to be active in the law. In the US, some politicians say it's a media law, it's there for the journalists, it's not there for the general public. I say, so what? There are plenty of laws that were written for businesses and i don't see why journalism can not be one of those that FOIA was written for. But I think that the general public needs to use the law and they do when they know it's there. It's important for the politicians not to become cynical about how the law works because it is a difficult process. Part of the success in fighting for open records is to show the public how the law works and to let people know that constantly this law is available to them and it's out there. If they want to know what their government is doing, they have the right to know. They also have an obligation to know.