Access with Attitude: An Advocate's Guide to Freedom of Information in Ohio

Preface

xv Preface Do you think that the men who wrote our Constitution would say today, “We’ve made it—the people don’t need to be vigilant anymore; they can wholly trust the men and women they’ve elected to govern”? If so, you don’t need this book. When Virginia’s convention was debating whether to adopt the Constitution, its principal draftsman, James Madison, told the assembled delegates: “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” More than thirty years later, Madison wrote: “A popular Government, without popular information , or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.” Madison was not discussing a need for open records laws in either instance. But both sentiments explain the societal value of laws that compel those entrusted with governing to open to the public the records that they have collected in managing the public’s affairs. Consonant with those ideals, Access with Attitude arose from zeal. But it also arose from frustration. Zeal and Ideals We first met in the late 1980s in our professional roles—Idsvoog exposing official misdeeds as an investigative reporter, Marburger offering legal advice. As Idsvoog’s television news stories exposed more and more official sloppiness and worse, Marburger fashioned the legal weaponry that Idsvoog needed to expose it. Marburger was a journalist before becoming a lawyer for journalists, and saw things through Idsvoog’s eyes. Mutual friendship and respect resulted. We grew up in the 1960s when young people questioned authority, resisted social convention, and pursued the kinds of ideals that talk radio today abhors. We celebrate many of those values. In the spirit of those committed young people, we devoted xvi฀฀•฀฀Preface scores of weekends and very late nights as professionals accepting no fee to pursue our ideals—free speech, a free press, and the useful, accountable, and selfless exercise of government power. People in government have called us plenty of names—zealous, dogged, and intense being among those that (we think) do not defame us. Access with Attitude is not neutral; it advocates. Our values drive this book. We see freedom of information laws through the prism of Madison’s ideals—as potentially exposing official oversights, absenteeism, arrogance, and abuses. But we also see those laws as potentially exposing the good that officials do—courageous judges, innovative and fiscally responsible mayors, heroic police officers, and selfsacrificing social workers. Discovering all of that requires reading public records. Frustration Over nearly three decades, separately and together, we have encountered persistent and surprising gamesmanship by public-sector lawyers and their client-administrators in resisting requests by journalists and other citizens for records. As frustrating as that was, naïveté in the fourth estate became more frustrating. Most journalists—especially reporters for large metropolitan newspapers—are intrepid enough. Many have become well acquainted with their legal rights. But tenacity and knowledge of the law aren’t enough. Many journalists—and many of their lawyers—fail to realize why some of their methods don’t work well. They repeat the same tactical mistakes that play into the hands of public-sector lawyers and administrators who seem to enjoy the intellectual challenge of finding legal ways to obfuscate. Journalists’ errors ultimately defeat or at least undermine their efforts to raise questions about what the truth is and diminish the benefits of knowing the law. We found ourselves instructing journalists again and again about the same practical strategies needed to overcome official resistance to legitimate inquiries. We became dismayed by the failure of some advocates to recognize legal arguments more potent than the ones they were using—or arguments that might win the pending case but would send the law ultimately in the wrong direction. We grew increasingly disappointed by judicial legal doctrine that seemed analytically unsound and the uncritical acceptance of that doctrine by the bar. We decided to team up to write a book to share our combined fifty-plus years of experience , ideas, and analyses with journalists, ordinary citizens, lawyers representing Preface ฀•฀฀xvii them, and even judges. We stepped up our efforts to complete this book when it became clear that cascading...