What does adapting to legislation mean for public records?

Public records laws vary widely across the country. Regardless of a state’s regulations, legislation continuously evolves in response to changes in the public records landscape and society’s needs. Laws can change when there is a push to strengthen and improve transparency and might include altering existing laws or creating new, more comprehensive ones. Jurisdictions are charged with tracking changing legislation and adapting to new laws in the name of remaining compliant.

Tracking legislation changes can present a challenge for states; the process of carrying out changes in the laws tends to be complex and may require additional resources. But legislation’s impact on public records cannot be understated. 

Operation: Improve Transparency

Behind many public records law changes lies the desire to improve transparency between government bodies and the public. Public records, many believe, are the key to holding jurisdictions accountable and giving the public access to the actions of government bodies. Indeed, body camera footage (which is considered a public record in many states) has become pivotal in recent events involving law enforcement. Laws surrounding this type of record and others are shifting in many states as citizens are becoming more engaged.

In the last few years, FOIA requests have increased and show no sign of slowing down. At the federal level, In FY 2019 the Department of Justice reported agencies processed nearly 900,000 requests. With such enormous volume, it is certainly challenging for government bodies to balance timeliness and transparency. But volumes at state and local agencies have also increased — by 45% in 2020, according to the PiPRIndex. Though strengthening transparency is a priority for many governments, so too is doing it efficiently. Centralized technology solutions that help jurisdictions manage and streamline requests improve processes and create consistent workflows.

Recent Legislation Paves the Way

Pending legislation has the potential to frame the future of public records in states across the country. The Michigan House is reviewing bills that would make it mandatory for lawmakers and top state officials to disclose financial information in an effort to prevent them from becoming lobbyists for two years after their tenure. This type of bipartisan legislation is part of a broader reform package designed to “boost transparency, heighten ethical standards, and improve accountability.” 

In Ohio, a group of current and retired teachers is preparing a public records lawsuit for more transparent information related to their pension fund. Alabama is taking steps to overhaul its existing public records laws and improve transparency by establishing a response deadline of 14 days and creating a Public Access Counselor to serve as a facilitator.

Some states are considering bills, albeit with different goals, related to the amount of access the public should have to the personnel records of state and local government employees. North Carolina’s SB 355, or Government Transparency Act of 2021, would provide information about terminations, suspensions, and other disciplinary actions of employees, including city and county workers, law enforcement, and teachers. On the other hand, the Texas Legislature is considering a bill that would make it harder for the public to attain information about government employees. 

Enforcing Legislative Compliance

There is enough legislation in the public records space to make a government agency staff heads spin. Tracking, implementing, and compliance of public records in Washington state is supported by the work of the Joint Legislative Audit Review Commission (JLARC). Touted as the “Legislature’s Auditor,” on request, JLARC will initiate a study with the goal of determining whether or not a state agency is accomplishing legislative intent and using resources efficiently. 

To determine whether resources are allocated effectively, it becomes vital to have insights into the costs, response timeframes, number, type, and many other factors to analyze the true cost of public records. In 2017, JLARC analyzed reports based on these parameters for the Washington State Legislature. Automated processes, including collecting data insights captured by records request management software, became paramount for analyzing costs and steps were taken to begin capture of the necessary data points.

Managing the Symbiotic Relationship

Legislation and public records are intertwined and each can have an important, long-lasting impact on the other. The public records space can be strengthened when related legislation is implemented and carried out accordingly and efficiently. Legislation can be improved when there is a better understanding of how public records are used and accessed to avoid unfunded mandates and excessively burdensome policies. Public records will always be subject to legislative changes; how agencies adapt to those changes will make all the difference. 

Changing legislation, though necessary, can present challenges for state and local governments as the public becomes more engaged in the public records space and demands more transparency. Technology and collaboration will be instrumental in meeting the growing demand for information, and streamlining processes to meet the rising demand for public records can help agencies face the challenges head-on.

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The Peers in Public Records Newsletter (formerly FOIA News) is a bi-monthly e-newsletter brought to you by GovQA. It is a collection of the latest trends in public record requests and government transparency initiatives, shared stories, live roundtables, informative case studies, and actionable knowledge that will help you calm the chaos and keep your organization compliant. Send your comments to peers@govqa.com.

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