I think there are a couple of things worth noting about the tension between the Office of Information Practices and the Civil Beat Law Center, which has been highly critical of OIP’s effectiveness and efficiency.

First, OIP says it is not adequately funded. That is absolutely true. Actually, that’s not a strong enough statement. OIP is poorly funded, and it’s budget is simply not adequate to do all the jobs it is expected to do.

From an OIP statement earlier this year:

OIP is now doing double the work with half the resources it had 24 years ago. OIP has only 8.5 FTE authorized positions and a legislative appropriation of $576,855, which is $304,473 less in unadjusted dollars and only 42% of what it had on an inflation-adjusted basis ($1,374,543) in FY 1994, and 40% less in authorized positions, when it was only responsible for the UIPA.

On the other hand, some of OIP’s current difficulties are self-imposed.

Specifically, OIP has made an administrative decision to prepare “often lengthy formal and informal opinions written to withstand judicial scrutiny” without further intervention by OIP.

So instead of preparing detailed opinions meant “to withstand judicial scrutiny” only in those relatively few occasions when a particular court case is deemed important enough to require OIP to intevene , OIP has apparently decided to put that level of work into all of its formal and informal opinions. This no doubt requires more time and more staff resources to push these opinions out the door.

This seems to turn the whole original idea of OIP on its head.

One of the primary considerations behind the creation of OIP was that it was intended to provide individuals with an alternative to expensive and time-consuming litigation when confronted with an agency’s refusal to disclose public records. Aggrieved requesters could ask for an opinion from OIP, which would hopefully suffice to pry public records out of foot-dragging agencies.

When an agency challenges an OIP opinion, state law requires courts to defer to the agency’s position unless they are “palpably erroneous.” And that would appear to apply whether OIP issued shorter, streamlined opinions such as those issued by many other states, as well as to the longer, more detailed opinions that now chew up so much staff time.

By law, OIP has standing to intevene in any case involving application of the sunshine or public records laws.

In its published replies to criticism from the Civil Beat Law Center, OIP has not fully explained why it believes the policy of writing each opinion to meet the “withstand judicial scrutiny” standard makes sense, given the accompanying costs in time, staff, and resources.

It seems like a key point that needs further explanation.