Closing The Loop

This is the second part of the Logikcull interview with Michael Morisy, founder of MuckRock -- the public interest organization that helps people pursue government information through FOIA and other open records laws. In part one, we discussed some of the challenges associated with accessing public records and, from the government's perspective, efficiently responding to requests for those records.

Here we discuss how the public weighs government transparency against public safety and national security concerns. Then we address access to government information under the new administration, and, finally, how taxpayers are bearing the cost of the government's technology shortcomings. We pick up the conversation below.

Logikcull: Do you see types of government organizations or agencies that are particularly slow to respond to a records request or are particularly restrained in some way? 

Michael Morisy: I think over the past 16 years now, anything that touches on public safety or national security, there’s a lot of concern and a lot of secrecy around how that material is handled. And I think some of that fear is legitimate -- people want to make sure that secrets that could reduce our community’s safety don't get out. But I think the pendulum has swung way too far toward secrecy so that way too much is withheld by just saying "it’s national security" or "it's public safety."

And there are some ridiculous examples out there. There is one case we saw where a police department said: we can’t release to you basic parking ticket information because there was some big national security concern.

It’s very important to have the public engaged and involved, and to have these discussions about civil liberties versus public safety. The public needs to understand not just the potential dangers out there, but what they are actually getting when they invest in potential solutions to those dangers.

"It's very important to have public discussions about civil liberties versus public safety. The public needs to understand not just the potential dangers out there, but what they are actually getting when they invest in potential solutions to those dangers."

Logikcull: There have been a lot of public discussions in recent years about this very topic, particularly after the Snowden revelations. Do you think events like that have had a broader impact in bringing these types of issues -- like safety and security concerns versus access to information -- to the public consciousness? 

Morisy: Absolutely. A lot more people are asking questions and saying we need to have a rigorous public debate about how far our national surveillance apparatus goes. I think there are also huge concerns -- that are probably a little less scrutinized -- about how these technologies trickle down locally. We’ve been looking a lot at local police department surveillance, particularly monitoring cell phone use at protests, for example. We’re seeing all sorts of technology that’s very advanced and very expensive get deployed at the local level with very little, or sometimes, zero oversight in how it’s used.

Again and again we see this technology either accidentally or maliciously misused. These agencies a lot of the time say: "Well, we can’t tell you how it was misused because of national security," or, "We can’t tell you what benefit it was having because of national security." And so we’ve created a system without checks and balances. And I think particularly at the local level, there’s no oversight and a lot of these departments will get equipment that they don’t even fully understand the implications of. And because they keep it a secret, nobody can have that conversation and push back when things cross the line.

"We're seeing all sorts of very advanced (surveillance) technology get deployed at the local level with very little, or sometimes, zero oversight in how it's used."

Logikcull: How do you foresee the new administration handling these kinds of issues? 

Morisy: Well, I think we saw that the current president ran very much on a platform that the previous administration was too secretive, was too cronyistic and did not follow best practices when it came to document management. I would hope that the new administration would follow through on how it campaigned and run a very open and transparent administration. So far, quite frankly, we have not seen that. So far, we’ve seen White House personnel use personal email accounts to manage their communications, we’ve seen reports that White House personnel are using disappearing messaging apps, and other things that go against the idea of having an open and participatory government.

Logikcull: Has that been widely reported? I hadn’t heard that before. Is that common knowledge?

Morisy: Yes, I think there have been a few reports. It’s hard to tell how widespread it is, but that's been coming out recently. We actually started a Slack channel where we invited about 3,000 journalists from all across the country, and a lot of that focuses just on: How can we use public records to try and open up the Trump Administration? Now, the White House itself is exempt, but all the agencies and a lot of his appointees are not exempt. So we’ve been collaborating with newsrooms across the country on how people can better use the Freedom of Information Act and public records to keep the government accountable.

Logikcull: What red flags should people who are concerned about the access to this type of information be on the lookout for? In other words, what indicators -- short of laws on the books that explicitly make it harder to request or access public records -- might suggest future challenges to getting that stuff?

Morisy: A lot of it is cultural and a lot of it is attitude. People talk about how Florida and Washington state and Texas, for example, all have pretty good public records laws -- and their laws are pretty good. But I think all of those states also have a really strong culture of transparency and accountability. I think looking at the attitudes that public records officials have is very important. For example, are these people trying to work with requesters on narrowing their request? On figuring out, how do you release the information in a useful way? Or are they trying to find exemptions that block access? What is their default position?

"Are records officials trying to work with requestors on narrowing their requests? On figuring out how you release this information in a useful way? Or are they trying to find exemptions that block access? What is their default position?"

I think one thing we’ve seen in recent years is that agencies have become more professionalized in terms of how they handle communications, which isn’t necessarily a bad thing until they start restricting how employees can speak out. Or when they start having public records requests which they’re legally required to comply with, instead of handling that as a legal matter, they handle that as a PR matter and have those requests go through the press office. So, I think there are a lot of cultural things that you can look at.

Also, we’ve seen a lot of agencies launch public data websites and open-data portals. We think that’s a great thing. But I think this should come hand-in-hand with improving their public records process and investing in software that makes release down the line easier. One thing we see is that agencies still continue to buy software that is difficult to export data from and that’s difficult to search on. And I think that doesn’t only hurt transparency, it hurts internal effectiveness, because if they can’t export this data for the public, they’re probably not even looking at this data themselves and they’re not making as data-driven decisions as they could be.

"Agencies still continue to buy software that is difficult to export data from and that's difficult to search on. That doesn't only hurt transparency, it hurts internal effectiveness."

Logikcull: Yes, that’s interesting. And to an earlier point you made, people are paying a premium for that tech-gap too. I didn’t realize this, but different types of record requesters are subject to different fees. And so, if you’re just a regular person, you’re potentially paying extra for cost incurred for, for example, lawyers to read or access sensitive information. So, if your tools aren’t efficient in facilitating that process, the requester is actually bearing that cost right?

Morisy: Yes, I think the requester is bearing that cost. A lot of times, these contracts, if you have an enterprise contract where you’ve been paying every year for a maintenance contract for software that’s 20 years old, you’re probably paying more than if you just bit the bullet and upgraded to a more modern software solution. I think you see a lot of email systems that people are using that still have very expensive tape backups. There are a lot of examples where they’re paying more for a worse product. And I think there’s so much potential just to modernize and catch up that will not only make it easier to be more transparent, but also save the taxpayer money and have happier employees. One thing we hear a lot from government is that they have a really hard time recruiting and keeping talented tech folks, not because they pay less, but because they just don’t give them the tools they need to succeed.

"If you have an enterprise contract where you've been paying every year for a maintenance contract for software that's 20 years old, you're probably paying more than if you just bit the bullet and upgraded to a more modern software solution."

Part one of this interview is available here. To learn more about FOIA laws and the process of requesting public records, check out our FOIA infographic

 Tags: FOIA software

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