In Buffalo, it now takes reporters months to get routine government records that should be available within days.

In Chicago, reporters can be arrested for eavesdropping if they are doing an interview on the street and a cop starts talking in the background.

And in Milwaukee and across the country, news photographers who have just been doing their job have found themselves under arrest.

Obviously, this year there are some dark clouds hanging over Sunshine Week, the newspaper industry's annual effort to promote openness in the public sphere.

Now in its eighth year, Sunshine Week has fought the good fight for open government -- but government keeps pushing back, sometimes literally.

That being the case, it's good to take stock, to chronicle what the press, and ultimately the public, are up against in the fight for the right to know -- and why that fight matters.

There's nothing new about this battle, really. The press and the government had an adversarial relationship even before the Founding Fathers penned the First Amendment. And the relationship should be adversarial, to a point, to guarantee that the press provides the proper independent oversight that's fundamental to democracy.

But government and the press should have one goal in common: the common good. And increasingly, the two sides seem to be going in different ways on that score. What seems different now is a growing sense among government officials and law enforcement that secrets are best -- even though secrets are harder than ever to keep when most people have smartphones that take good pictures and can record anything.


For proof of government's increasing stinginess with information, just ask anyone who tries to get records from Buffalo's City Hall. There, reporters routinely face lengthy fights for records under the state's Freedom of Information Law.

That state law, and the similar federal Freedom of Information Act, are designed to make routine government information available to everyone.

But in reality, FOI laws can be used to filibuster requests for information -- which is why I have taken to saying: "FOIA=Molasses."

I am not alone in that sentiment.

"The city routinely drags out its response to FOIL requests," said James Heaney, a former Buffalo News investigative reporter who recently launched his own Internet venture, the Investigative Post. "What should take days takes months."

In an era where it would be easy for any government to put reams of public information about its actions on the Internet, the City of Buffalo has lagged on that score, Heaney said.

Instead, the administration of Mayor Byron W. Brown keeps everything close to the vest.

"Every public record is difficult to get," Heaney said.

Jeff Woodard, news director at WGRZ, echoes Heaney's complaints about the Brown administration's tendency to go slow on information requests.

Brown's spokesman, Mike DeGeorge, said the city tends to require FOIL requests for information because it doesn't want to give anyone special access. It's only fair, he said, for the city to treat every information request similarly, whether it comes from a reporter or a citizen.

The city gets about 1,000 FOIL requests a year, said Timothy A. Ball, the city's corporation counsel. Reporters join the queue with lawyers and property owners squabbling over property lines. To make it all easier, he said, the city is planning to automate its FOIL process.

Ball also disputed the contention that the city has been slow to replying to FOIL. "We process the requests in accordance with FOIL," he said.

What's more, Ball said, the city has put plenty of information online, including city contracts and the budget.

And to be fair, the City of Buffalo is not alone in taking longer on FOIL requests than reporters would like.

Heaney said state agencies are hit-and-miss in providing information, and in Washington, some agencies are notorious for treating FOIA requests like fine bottles of wine that need to age before they're opened. For example, a FOIA request The News filed with the U.S. Navy took a full decade to be fulfilled.


What's wrong with all of this is that it likely means stories that the public needs to know are being delayed, sometimes to the point where they are no longer news.

The result is that the public is missing out on the kinds of hugely important stories, and the treasure troves of information, that can result when FOI laws work as intended.

Sometimes FOI does indeed work; here are just a few examples:

*Mary Pasciak of The Buffalo News has broken numerous important stories about the Buffalo Public Schools through her use of Freedom of Information requests. For example, FOIL was key to her reports on the paltry number of teachers Buffalo considered to be "inadequate," and on the frequent out-of-town trips taken by former School Superintendent James A. Williams.

*Lawyers for Marquez Mack, an inmate in the Erie County Holding Center, used the FOI law to force Erie County to release a video of an alleged assault he endured at the hands of sheriff's deputies.

Released last month, the video shows, in graphic detail, two deputies pushing Mack head-first into a concrete wall. Three more deputies later join the fray as Mack gets shoved into the wall again. He later falls to the floor.

*In the wake of the death of Iraq War veteran James T. Hackemer, a double amputee, on Darien Lake's Ride of Steel roller coaster, WGRZ put in a FOI request for safety records for the park's amusement rides.

The ultimate result: the State Department of Labor not only provided the records, but set up a database whereby the public can go on the Web to check the safety record of any amusement ride in the state.


While Freedom of Information laws seem to provide the most frequent battles in the fight for open government, journalism watchdogs report that such battles are also more frequently happening in the streets.

Part of this trend stems from the fact that these days, any citizen with a smartphone can be mistaken for a journalist, or even assume the role of one.

Not that there's anything wrong with that; it's just that in this new era where practically any citizen can post a video to YouTube, government and law enforcement are increasingly regarding both old-fashioned journalists and citizen journalists with disdain.

Most frightening of all is the situation in Illinois, even though it has not yet produced waves of unwarranted arrests of journalists, which it could indeed produce.

Under Illinois' long-standing eavesdropping law, you need the consent of all parties in a conversation in order to legally record it.

Many states have similar statutes, but the one in Illinois goes several steps further: it applies equally to private conversations and anything that's said in public, and it subjects people to arrest even if their recording device is in plain sight at all times.

In other words, if a reporter is recording an interview on the street and a cop happens by and starts shouting orders to the crowd, the reporter can be charged with a felony just for accidentally picking up the cop's orders on the recording.

That's a huge concern in this new era where practically everyone has a recording device in his pocket, especially in a city like Chicago, where large public gatherings are not uncommon.

"It's unbelievable," said Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press. "Suppose it's November and you're going down to Grant Park to hear President Obama give his victory speech, and you hold up your camera, and you record a cop nearby saying 'Hey, isn't this great for the city of Chicago; aren't you proud?' -- well, you just violated the law."

What's worrying to journalists is, after years of sitting largely idle on the books, the Illinois eavesdropping law is starting to produce arrests.

A Chicago woman was charged under the law after recording police officers whom she thought were preventing her from filing a sexual harassment complaint, and a Normal, Ill., man was charged with recording police during a traffic stop.

A jury found in favor of the woman in the first case, and a prosecutor dropped the second, thinking the law in this case was worse than the violation.

"My real problem with the law is that it makes a felony out of what is, in many cases, perfectly innocent conduct that even may be beneficial conduct," Ron Dozier, the state's attorney in McLean County, Ill., told the Reporters Committee. "As it [the law] is now, it is just way over broad and it violates people's constitutional rights to freedom of speech and association."


As for the constitutional right to a free press, photographers -- be they traditional journalists or citizen journalists -- seem to be particularly and increasingly threatened.

Witness this:

*Milwaukee Journal-Sentinel photographer Kristyna Wentz-Graff was arrested last fall while covering an Occupy movement protest in the city. A video of the incident shows her trying to photograph the arrest of a protester, only to be grabbed by a cop, pushed against a police car and handcuffed -- even though her press pass was visible the whole time.

*Two journalists were arrested at a Nashville, Tenn., Occupy protest in late October. Jonathan Meador, of the weekly Nashville Scene, was recording the event on a small camera and ended up recording his own arrest. "I'm a member of the media," he told a police officer, who offered no response.

*In Buffalo in 2010, a man was recording the aftermath of a fight at a Thursday at the Square event, only to find a Niagara Frontier Transportation Authority police officer in his face. "If you take my picture again, I'm going to [expletive] break your face," the officer said with the camera still rolling. "That's not as a police officer, that's as a person."

That incident helped prompt the NFTA to revise its policy to make it clear to officers that public photography is permissible in most circumstances. But that episode and all the others nationwide have kept Mickey H. Osterreicher busy.

"Photographers are being interfered with and arrested almost on a daily basis," said Osterreicher, a longtime Buffalo photojournalist turned lawyer, who represents the National Press Photographers Association.

"There seems to be this belief that's stemmed from 9/1 1, that's grown with the Occupy movement, that somehow taking pictures has been equated to some sort of terrorist activity," he added.

Often those arrests are egregious violations of the First Amendment, said Gene Policinski, senior vice president and executive director of the First Amendment Center in Nashville.

"The First Amendment right of a free press to publish the news absolutely requires that journalists be free to gather the news," Policinski wrote in an essay last fall.

"So when police improperly arrest journalists who are reporting at a scene, they do more than violate one person's rights; they attack the public's collective, constitutional right to know from a free and independent source what our government is doing so that we may hold it accountable."

The same can be said for governments that withhold public documents.

So collectively, the trend toward stonewalling the press, and stopping journalists from doing their job in the streets, isn't just something that casts a shadow on Sunshine Week.

It casts a shadow on the First Amendment -- and on every American who believes in our fundamental right to know what's really happening.