12-03-2016  8:00 pm      •     
Kevin M. Goldberg

The Tenth “Sunshine Week” ended about six months ago, on March 21. This annual celebration of open government was created by the American Society of News Editors with a grant from the John L. and James S. Knight Foundation. Now co-sponsored by ASNE and the Reporters Committee for Freedom of the Press, Sunshine Week is intended to highlight the importance of open government around the country. All indications pointed to the fact that this year’s Sunshine Week was one of the best yet. In Washington, DC and throughout the country, people found new and innovative ways to make people think about transparency (my personal favorite was the brewing of “Sunshine Wheat” beer – the first beer of Sunshine Week).

Even government agencies embraced the spirit of open government for those seven days. One could take a field trip every day to an agency event touting their success with regard to transparency and disclosure of government records and information.

Media outlets also were doing great things. Highlights included op-eds on the importance of open government by Associated Press President and CEO Gary Pruitt and by Eric Newton, Senior Advisor to the President of the John L. and James S. Knight Foundation. There were also print and online stories on the barriers to access, editorial cartoons and a video segment highlighting some of the most egregious FOIA delays in existence.

Fantastic. But now six months down the line, what has been the net effect?

Sunshine Week was created because of a perception that people don’t truly appreciate the importance of open government, in part because there was little to no discussion of the issue itself. Sunshine Week was intended to make people stop taking transparency for granted, but not just for a week. We don’t stop being American when the clock strikes midnight on July 5. So why does it feel like government, media and citizens don’t commit to transparency for the 51 weeks until the next Sunshine Week (which, for those looking ahead, will be held from March 13 to 19, 2016)?

In some ways, Sunshine Week undercuts its own success. The Congressional Committees with jurisdiction over the federal Freedom of Information Act, the House Committee on Oversight and Government Reform and Senate Judiciary Committee, have largely fallen into a pattern of holding one and only one hearing relating to the federal FOIA every year – during Sunshine Week. And that’s if we’re lucky.

As processing delays and unnecessary invocation of FOIA exemptions diminish the law’s true utility for those who need meaningful information from government agencies in a timely fashion, Congress should be asking more questions of agencies on a regular basis. Congress, the media and the public need to take note as executive branch agencies increasingly try to “control the message” by limiting unfettered access to staff or by only allowing staff to speak “off the record” or “on background.”

Not pushing back against these abuses allows the government to, in effect, manipulate Sunshine Week for its own gain. In fact, many agencies have their playbook down pat. Show up when asked to testify by a Congressional Committee and endure the hot seat for a couple hours and/or hold a public event during Sunshine Week, making sure to say all the right things about transparency and throwing out a few numbers to “prove” that your FOIA backlogs have decreased. Release a few “high value” datasets (which aren’t really all that high in value at all) to show you are being “proactive.” Make it through the week and then most everyone is off your back until the next Sunshine Week.

Quite often it works. Don’t believe me? Look at what the White House did this year. On March 13, 2015, two days before Sunshine Week started, it announced that the White House Office of Administration would no longer be subject to FOIA. Granted, this was not a violation of law, as a federal court had ruled six years before that this office is not subject to FOIA. But the simple fact is that both the timing and the action itself smacked of contempt for open government and should serve as a reminder that no government will ever authentically embrace truly open government, except perhaps within the confines of the one week in which they know all eyes are on this issue.

Government agencies tend to act like a boxer “stealing a round” when it comes to transparency. There’s a grand flourish when they know it will score big points. But we need to refrain from giving them the champion’s belt for such tactics; at best, they deserve a participant’s medal. Yes, government agencies need to do a better job of committing to transparency 365 days a year, but so do those pushing them to do better. It’s time to really take what we’ve learned during Sunshine Week and use it the rest of the year. We still have time to accomplish that before next March.
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Kevin M. Goldberg is a media attorney with the Arlington, VA firm of Fletcher, Heald & Hildreth, P.L.C. and serves as Legal Counsel to the American Society of News Editors, a member of the OpenTheGovernment.org coalition.

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