American clunker: U.S. FOIA falling behind other countries

**This article appeared in the Fall 2014 IRE Journal**

By David Cuillier, University of Arizona School of Journalism

When it comes to freedom of information, the United States can learn a lot from other countries.

Now, 103 countries have freedom of information laws, most of those passed in the last 15 years. Many were modeled after the 1966 U.S. Freedom of Information Act (FOIA), but have since leapt far ahead.

In ranking the strength of FOI laws, Access Info Europe and the Centre for Law and Democracy place the United States at No. 44 in the world. That’s behind such countries as Uganda, Russia and Kyrgyzstan. Mexico’s law ranks seventh.

Sure, there is more to accessing public records than just the law. A state or nation can have a strong law but weak implementation. Or, a country can have a weak law but the culture and political leadership might foster openness.

The fact is, though, laws do matter, and the U.S. is falling behind. We are driving a 1966 Ford Mustang of a law. A classic car, no doubt, but with worse reliability, horse power, sound system, AC, safety and comfort than a new Jaguar SE (the United Kingdom’s FOI law, passed in 2000, ranks 29th).

So what can we learn from our global neighbors — even those with some pretty sketchy records on press freedom? A lot.

Broadly applied

• In many nations, such as Liberia, the right to access public records is explicitly stated in their constitution, or has been acknowledged by their high courts as a constitutional right. Not in the United States.
• The FOI laws of South Korea and Uganda apply to all three branches of government, including the courts and legislative branches. In the U.S., Congress exempted itself and the courts from FOIA.
• South Africa makes “private bodies,” such as companies that serve as government contractors, subject to its federal FOI law. In Brazil, Estonia and Macedonia, if a private company is delivering public services with public funds, then it must follow FOI.

Ease of request

• China’s FOI regulations provide reduced or waived fees for those who demonstrate financial hardship, and officials are required to assist the illiterate and disabled in making requests.
• In the United Kingdom, a public records request posted in a Twitter message could require agency response.
• Armenia requires agencies to respond to a request within five business days. In the United States, it’s 20 days.
• Serbia law specifically says the government can’t give preference to any one journalist over other journalists in handling requests. No favorites.

Enforcement power

• Mexico FOI provides for an independent agency to enforce the law.
• Many countries, such as India, assess monetary penalties against agencies that don’t comply with the law.
• Ethiopia provides a public records ombudsman who can force an agency to cough up records. The U.S. Office of Government Information Services serves as a mediator, but does not have the power to require disclosure.

Public education

• The state of Sinaloa in Mexico requires FOI to be taught in the schools.
• In Russia, the law requires government agencies to provide lists of all their records and databases online.
• A Colombian law enacted in January requires agencies to provide public records in different languages.

Of course, just as there are some good FOI laws in the world, there are a lot of bad ones. In Bangladesh and Ghana you have to hand deliver your request. The United Kingdom FOI gives the Royal Family a broad exemption. Many nations still have no laws requiring government to provide records. The reality is there is a lot of good and bad in all FOI laws, particularly at the state level. It’s easy to get complacent and accustomed to our laws — to accept them as they are, shrug and move on. We should not. We should look around the world, identify the best practices internationally and craft a more powerful FOIA that will better serve journalists, citizens and democracy in the 21st century. It’s time we park that Mustang in the garage. It’s time to trade up.

David Cuillier is director of the University of Arizona School of Journalism and Freedom of Information Committee chair for the Society of Professional Journalists. He is co-author, with Charles Davis, of “The Art of Access: Strategies for Acquiring Public Records.”