A lot of legal news over the last week has related to open government laws surrounding public records requests. The Guardian featured a story, entitled “Judge rules FBI unlawfully refused to comply with information act requests,” that told of a recent win in the work of MIT PhD student Ryan Shapiro and his attorney Jeffrey Light to get the FBI to turn over records in response to FOIA requests. In CLDC’s own headlines, we made news this week with our case to try to get the Greenhill Humane Society to respond to public records requests concerning dogs killed at the public animal shelter serving Eugene, Springfield and Lane County. We’re also seeing media start to buzz about our fight against SLAPP injunctions filed by construction corporation Skanska against grassroots activists who work under the banner of No New Animal Lab, a campaign that began with a public records request. A public records request revealed the University of Washington Board of Regents had secret meetings about approving the construction of an underground animal lab, and those meetings were a violation of Washington’s Open Public Meetings Act. A lawsuit against the Regents led to them being found guilty of violating the OPMA twenty-four times, and it led to the No New Animal Lab campaign, which has grown into an international grassroots movement.
Just within this small sampling of recent news, we can see the impact of making a public records request: from having the FBI scramble to keep information hidden to being the seed that grew into a dynamic global campaign. As cliché as it may sound, knowledge is power—whether that’s the power to expose what’s behind the curtain of government entities or the power to inspire communities to take action. But there’s also a tension that exists between open government law victories in the courtroom and the reality of what it takes to make actual change happen, and this tension should be acknowledged and addressed when we make use of open government laws in our work. Open government law is a double-edged sword, and knowing how to wield it—with its positives and negatives—is how it can be most powerful.
On the positive side of the sword, open government law provides a lot of effective and accessible tools. Public records laws—whether they be state laws or the federal Freedom of Information Act (FOIA)—allow members of the public to make requests for information (subject to exemptions) to government entities, whether that be the FBI, a public university, a police department, or other entity. Making a request for information could lead to receiving thousands of pages of internal emails, investigation reports, photographs, operation and policy manuals, surveillance reports…the list goes on. Open public meetings laws require certain meetings of government bodies to be open to the public and require time for public comment, which can give activists a forum through which to view upcoming decisions, garner public support, take note of the views of decision-makers, use it as a media platform, make comments that will go into meeting records, and even stage disruptions that decision-makers can’t ignore.
The tools of open government law provide us with information, access, ways to hold decision-makers accountable, and the opportunity to explore a variety of other ways through which to advance the campaigns and causes to which they are dedicated.
An overarching danger of open government law is in the phrase itself: open. When we are told that something is open, we are not always looking for what may be hidden. If someone makes a public records request and they receive thousands of pages of documents, they may not notice the one “smoking gun” document that is missing. Activists and other interested parties should be quite aware that just because they are seeing a document or sitting at a meeting does not mean that they shouldn’t look for what else may be hidden.
Another danger of the use of open government law is that it can be very seductive, and ultimately the victories of getting information or winning a lawsuit are just another tool in a bigger campaign, and that’s something that can’t be forgotten. A key phrase that shows up in a variety of political movements is “diversity of tactics.” Generally, diversity of tactics refers to using a variety of different tactics to reach a goal. Doing this is effective when the different tactics used are all consistent with the goal being sought. In order to prevent the seductiveness of victorious court rulings from becoming the only tactic used—and thus creating a campaign that has a lot of weaknesses and may be missing avenues to achieve the ultimate goal—using open government laws needs to be just one tactic among many that we put to use.
As compliment to this point, we have to remember that there are limits to how we can even use open government laws, with here the key word being “government.” Among agencies and individuals who are subject to open government laws, many exceptions exist—privacy protections, situations in which closed meetings are allowed, etc. A common joke among activists who’ve made FOIA requests is about how many black sharpies the government must go through when making redactions. Additionally, many bodies against which communities are campaigning are not subject to open government laws because they aren’t the government. Private corporations and individuals often escape the demands to turn over their emails or to open up their board meetings. However, when a private entity is working with a government body, the work for, and the communications with the government body are subject to public records requests.
As we try to confront the root causes of the exploitation of the earth and its inhabitants, the government is repeatedly intertwined as a key cause. So when we consider open government law, it must be a tool rather than a solution. We cannot expect to find the way to save the world through a system that is set up to exploit and kill it. So while open government law is a double-edged sword, it can be used very powerfully by using the positive side while being aware of the cautions of the negative side, and remember the context in which we all work.
The CLDC provides workshops on how to use public records laws. Contact us if you are interested in hosting a CLDC workshop—either in person or online.
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