Oregon's Public Employee Retirement System will go to court to try to keep pension benefit records secret

from Oregonlive.com:

Oregon's Public Employee Retirement System is going to court to try to overturn a decision by the state's top lawyer and keep the names and pension benefits of its best-paid retirees a secret.

The case spotlights a potential showdown between Attorney General John Kroger, who is pushing for more government transparency, and state agencies, which observers say had greater discretion to withhold information under Kroger's predecessor, Hardy Myers.

Earlier this month, Kroger released a report identifying shortfalls in Oregon's public records laws and agencies' compliance with them. Tony Green, a spokesman for Kroger, said the Department of Justice is preparing legislation "that will significantly overhaul the public records law to encourage greater transparency and greater public access to their government."

Read more here.

New Mexico Attorney General Says Governor Potentially Violated Open Records Laws

New Mexico Attorney General Gary King says Gov. Bill Richardson's office may have violated the state's open records laws when it did not disclose the names of workers who lost their jobs, the agencies they worked for or their salaries in response to news media requests for that information. Richardson disagrees with the attorney general's opinion.

Read more here.

Holder Announces DOJ Policies re: State Secrets Privilege

Attorney General Eric Holder today released new policies and procedures for the Department of Justice regarding the invocation of the state secrets privilege in litigation. The policies go into effect on October 1.

The policies are designed to "strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Under the new policies, the Justice Department will not defend an assertion of the privilege from a government department or agency without the personal approval of the Attorney General. It also establishes a State Secrets Review Committee comprised of senior DOJ officials designated by the Attorney General.

When seeking to invoke the privilege, the department or agency must make a sufficient showing that the privilege is necessary to protect information that could lead to significant harm to national defense or foreign relations.

The new policies announce that the Justice Department will not invoke the privilege to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment; to restrain competition; or to delay the release of information undeserving of the state secrets privilege.

More from the Washington Post here and The Hill here.

Nev. AG rules governor's personal e-mails aren't public

The Nevada attorney general's office decided that personal e-mails on Gov. Jim Gibbons' state computer are not pubic records, the AP reported. Reno Newspapers Inc. is seeking all e-mails Gibbons sent on his state computer and asked for a log of recipients, senders, subject matters and reasons public access was denied. The brief from the AG's office said the state has "no pre-litigation duty" to create the requested index.

The Nevada attorney general's office says personal e-mails on Gov. Jim Gibbons' state computer are not public records.

In a Nevada Supreme Court brief, the AG's office says personal messages or those not concerning public business are not subject to a public records request.

The filing is in response to an appeal by Reno Newspapers Inc., which is seeking all e-mails sent by Gibbons on his state computer from January to June 2008.

More here.

Fla. AG sides with public records law, not NCAA

Florida Attorney General Bill McCollum has taken steps to help protect the state's public records law in regards to NCAA records, WCTV reported. Because the records were released to Florida State University, they are considered public records, according to McCollum. However, both the university and NCAA are being sued by news organizations for withholding the files.

Florida's Attorney General wants to join the fight over the NCAA documents released to FSU.

As we reported Tuesday, Attorney General Bill McCollum filed a motion Tuesday that would allow the office to file an amicus brief with the circuit court.

The Attorney General's office says Florida State and the NCAA are part of a lawsuit against a number of news organizations over the release of public documents.

More here.

Maryland AG, SHA block access to key records

From Richard D. Boltuck of Maryland:

Most residents of West Bethesda in the neighborhoods near Whitman High School are well aware of the hazardous and chaotic Braeburn Parkway/River Road intersection used as one of the main entrances to the Whitman parking lot. Many of those turning on or off River before and after school are high school students, among the least experienced drivers anywhere. Many dangerous accidents have occurred at this intersection, including one recently noted on some local listservs; the lack of anyone being killed in such an accident to date is a product of good luck rather than precautionary measures.

For well over a decade, the community has sought installation of a traffic light at the intersection to regulate traffic and tame the hazards. River, of course, hosts numerous traffic signals already, including at the entrances to country clubs and other schools. The community's efforts have always been supported strongly by members of our General Assembly delegation. And as you might recall, last year we collected hundreds of local signatures on a petition urging the Maryland State Highway Administration (SHA) to install a light. Thus far, however, the SHA, which owns River Road, has rejected our pleas.

Typically, when periodic concerted efforts were underway in past years, SHA engineers would meet with the community or its representatives and inform them that a recent scientific engineering study required by law before a signal could be approved indicated that a signal was not warranted. At that point, the community was left with few immediate options, except to request another examination a few years later. In the meantime, students, faculty, and staff at Whitman, together with other drivers, continued to risk life and limb every day. And, of course, the next study by SHA simply echoed the prior one, starting the cycle over again. In short, no progress.

In the past year, I have worked on breaking this unproductive cycle by taking a somewhat different approach -- with great advice and assistance from others, including particularly Peter and Christina Sklarew, and Seth Guggenheim. My hypothesis was that part of our historical ineffectiveness arose from a lack of symmetry in the information we possessed. We had never actually obtained any of the SHA traffic-signal warrant analyses and the accident data on which they were, in part, based, let alone studied them carefully. Consequently, last summer I filed a request for these analyses and data with the SHA, based on the Maryland Public Information Act (PIA), the state's version of the Federal Freedom of Information Act. I had assumed that the analyses were not previously reviewed simply because they had never been requested. I was surprised, however, that my request was rejected on a variety of grounds asserting alleged exceptions to general disclosure requirements of the PIA.

Over the past year, I have challenged this rejection through the administrative review process set out in Maryland's Administrative Procedures Act (APA). Last September, the case was heard before an administrative law judge in the Maryland Office of Administrative Hearings. Shortly before that hearing, SHA partially backed down, sending me copies of the various warrant analyses, but continuing to withold the compiled accident data. These data are important in verifying the validity of that aspect of the analyses, and in better understanding SHA's perception of how dangerous the intersection is.

The administrative review process is now at its tail end, and I am awaiting a "final decision" by SHA Administrator Neil Pedersen no later than the end of August. Last week, Peter Sklarew and I attended a hearing before Mr. Pedersen and I presented oral arguments in favor of disclosing the requested accident data. The PIA case has been interesting in itself as a public-interest project. Maryland's highway and road system, after all, touches all of our lives, and constitutes one of the most significant uses of public tax funds in the state.

Despite the democratic public interest in understanding how our money is used and on what decisions about our road system are based, and despite the fact that the SHA is not a national-security agency, SHA and its legal advisors from Attorney General Gansler's office have devised a theory that they argue prevents them from disclosing a very significant share of public highway records to members of the public. Highway accident data, paid for by taxpayers and relied on in improving highway safety, are among those records. The legal position taken to date by AG Gansler and his staff is at the core of the problem. AG Gansler's office has thus far (up through Mr. Pedersen's "Proposed Decision") adopted a needlessly expansive and unjustified interpretation of a 2003 Supreme Court decision as a key part of its theory, an interpretation directly at odds with the two state appellate courts (in Kansas and New York) that have addressed this exact issue after 2003. In doing so, Mr. Gansler has, in effect, invalidated rights established for Maryland citizens (and others) by the General Assembly, instead preferring an interpretation where Federal law broadly preempts Maryland's own PIA. I would have thought the job of the AG is to defend the state's statutes, and the rights they create, to the greatest extent possible. If I were in the General Assembly, I would be furious that the laws I had participated in passing were being treated in this manner by the state's own chief attorney.

View related case documents here.

Missouri becoming more proactive in FOIA

In addition to the educational efforts of the newly formed Missouri Sunshine Coalition, the state's attorney general, Chris Koster has contacted all 114 counties to discuss the Sunshine Law, Kim Wrinkle of The News-Leader reported. "We have truly needed less apathy and more action towards those in power who have abused the Sunshine Law or simply ignored it," she wrote. "With the help of the Missouri Sunshine Coalition and the Attorney General's office, I hope that Missouri can become much more proactive with holding our elected officials accountable for their actions."

If we polled 100 people walking down any street in southwest Missouri, my guess would be that 75 of them would have no idea what the Sunshine Law is about or that it even exists.

Missouri has been given a great opportunity by a group of people who know the importance of open, transparent government and believe that any citizen should have access to public information.

The Missouri Sunshine Coalition was formed this year with the mission of educating Missouri about the Sunshine Law. Members of the coalition believe in a form of government that operates in a free and open environment with access to information and is working to make sure the citizens of our state can get such information in a simple way.

More here.

NFOIC Summit: Kentucky FOIA roundup

State-by-state updates at the 2009 NFOIC Summit: Terry Anderson of the University of Kentucky provided a summary of his state's FOI news.

• The state trying to revive the Kentucky Citizens for Open Government.
• The governor and attorney general are committed to open government. The chief justice just started a review of court rules on openness with the intention of opening them up more. Kentucky has a bigger problem with the legislature. The lawmakers don't seem committed.
• One legislator is determined to prevent the use of 911 calls in broadcasting.
• There is a legislative attempt to extend First Amendment rights to high school journalists.
• There also was a proposal to create a legislative investigative agency that would investigate other branches of government; however, its operations would have been exempted from public records.
  

NFOIC Summit: Oklahoma FOI roundup

State-by-state updates at the 2009 NFOIC Summit: Joey Senat with Oklahoma State University School of Journalism and Broadcasting provided a summary of his state's FOI news.

• The attorney general issued a binding decision regarding private technologies. The public access to it depends on the nature of the document not the technology. If it has to do with public business, it's public. The Oklahoma Department of Libraries helped make that request. The state also has a statute related to records retention, which is what the library was interested in. There's still an need to talk to state agencies on what to do with the records they are now keeping.
• Enforcement of open-government laws falls to local district attorneys, which is a problem. The Court of Civil Appeals says said if you violate the open meetings law based on advice from your attorney, it's still a violation. You're supposed to know what the law is.
  

Fort Lauderdale commissioners advised to stay off Facebook

Fort Lauderdale City Attorney Harry Stewart discouraged commissioners from participating in "a Facebook page or any similar interactive communication technology," the Sun Sentinel reported. The attorney general, however, told the city of Coral Springs that a Facebook page was okay but that freedom of information laws would apply. The Sun Sentinel obtained a copy of the attorney general's opinion and has posted it.

We've seen a few stories lately about cities and agencies joining the Twitter or Facebook madness. There's certainly no Facebook craze in Fort Lauderdale City Hall.

City Attorney Harry Stewart advised commissioners against setting up pages on Facebook, or creating personal websites with content that could be public record.

Stewart's full memo about Facebook is here.

More here.

Great news for open government in Oklahoma

From Dr. Joey Senat, Associate Professor at OSU School of Journalism and Broadcasting:

Records of government business belong to the public even if they are created, received or stored on an official's private smart phone or laptop, according to an Oklahoma AG opinion released Thursday.

"To conclude otherwise would allow public officials and employees to circumvent the open records laws simply by using privately owned personal electronic communication devices to conduct public business," the opinion said.

The opinion also prohibits public officials and employees from altering or destroying public records on their private communication devices unlessallowed to do under the state Records Management Act.

"E-mails, text messages and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property are subject to the Oklahoma Open Records Act, [its exemptions] and the Records Management Act regardless of whether they are created, received, transmitted or maintained by government officials on publicly or privately owned equipment and communications devices," the opinion concluded.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court.

Opinion 09-12 noted that government officials and employees increasingly use privately owned "computers, laptops, cell phones, PDAs, smart phones, and other personal electronic communication devices in conjunction with their work."

Public access to such electronic communications became an issue in April 2008. OSU student Jenny Redden, for an independent study with me, reported in The Daily O'Collegian that OSU President Burns Hargis and several hundred other university employees conduct the public's business on their smart phones or cell phones.

OSU administrators claimed the related text-messages, e-mails and numbers dialed were secret. They contended that the ownership of the cellular device, not the substance of its related records, should decide whether those records are public.

That policy earned OSU officials the annual Black Hole Award from FOI Oklahoma Inc. in March.

The notion put forth by OSU poses a serious threat to open government because it contains no limiting principle. If a record is secret because it's on the mayor¹s iPhone, then so are documents on the mayor's own laptop even if he's conducting the public's business on it while seated at his office desk.

Courts and attorneys general in other states have rejected the reasoning used by OSU officials, holding that it is the nature of the record created that determines if it is open to the public.

Oklahoma Attorney General Drew Edmondon's office followed suit, saying that nowhere in the Open Records Act "is ownership of equipment mentioned as a factor in determining what is or is not a record."

"We conclude that who owns an electronic communications device has no bearing on whether an electronic communication created or received on that device is a record," the opinion said. "Thus, a communication that meets the definition of a record under the ORA is subject to disclosure regardless of whether it is created or received on a publicly or privately owned personal electronic communication device, unless some provision of law allows it to be kept confidential.

"Nor does the location of the electronic communications equipment matter, whether it is used in a governmental office, in a public official's or employee's home, or somewhere in transit between them," the opinion said.

The opinion also reasoned: "Like the ORA, the RMA makes no distinction between records that exist on publicly owned electronic communication equipment and those on privately owned equipment. Therefore, public officials may not partially or wholly mutilate, destroy, transfer, remove, alter, or otherwise damage or dispose of records on their personal electronic communications devices, except as provided by law."

Read the AG's opinion here.

Jenny's series on open government at OSU can be found at:
http://ocolly.com/2008/04/17/employee-phone-policy-violates-open-records-law
-experts-say/

http://ocolly.com/2008/04/17/osu-could-cut-costs-by-changing-cell-policy/

http://ocolly.com/2008/04/30/regents%E2%80%99-voting-record-under-investigation/


Thank you to Drew Edmondson and Assistant Attorney General Debra Schwartz for this written opinion. It will go a long way toward protecting open government in Oklahoma.

Thank you, also, to Susan McVey, director of the Oklahoma Department of Libraries, and Bill Young, the department's public information administrator, for requesting the opinion.

Ill. AG suggests all privacy exemptions go through her office first

Illinois public agencies wanting to cite privacy as their reason for withholding public records might have to go through the Attorney General's Office first, the Chicago Tribune reported. This proposal is included in Atty. Gen. Lisa Madigan's package for pending legislation that would rewrite the state's weak FOIA. The privacy exemption allows officials to withhold anything that constitutes "a clearly unwarranted invasion of personal privacy." The Attorney General's Office would determine if using the privacy exemption was appropriately applied and then issue a binding decision.

Illinois Atty. Gen. Lisa Madigan wants to force public agencies throughout Illinois -- from town halls to school boards -- to report to her office every time they cite privacy as an excuse to withhold public records.

"It is by far the most broadly abused exemption to the state records law," said Cara Smith, Madigan's deputy chief of staff. "We think that is far less likely to happen if they know they have to report it to us every time they use it. If they have a valid reason, then they will have nothing to worry about."

But a top lobbyist for municipal government in Illinois said the idea of elevating one exemption to public-records law over all the others is "without merit."

More here.

AG proposes rewrite of Ill. FOIA

Attorney General Lisa Madigan's office released a revision of the Illinois Freedom of Information Act, The Register-Mail reported. The rewrite calls for five days rather than the current seven for agencies to respond to a FOIA request. Agencies that don't respond in that time will not be able to claim that releasing the requested documents would be "unduly burdensome." Agencies would be required to respond to FOIA requests for commercial gain in 21 days. Each public bodies would have to have a "Freedom of Information officer" to manage FOIA request.

Attorney General Lisa Madigan's office has released a revised version of state's Freedom of Information Act in another effort at strengthening the law that gives the public access to government records but is criticized as weak and full of loopholes.

Advocates say Madigan's proposed FOIA rewrite, released Tuesday, adds some much needed teeth to the law, while critics say it's too complicated and may create more problems than it solves.

Both sides, though, still have some concerns they want addressed.

More here.

Ill. attorney general supports some exemptions

Illinois Attorney General Lisa Madigan, who might be a candidate for governor in 2010, is trying to add muscle to the Public Access Bureau, which currently doesn't have much power to enforce public records laws, the Chicago Tribune reported. However, Madigan doesn't disagree with some of the controversial exemptions to the Illinois public records law. She supports the exemption of preliminary drafts and performance evaluations of public employees.

Atty. Gen. Lisa Madigan created the Public Access Bureau in 2004 -- a first-ever effort in Illinois to help the public get a clearer picture of how state and local governments make decisions.

The office has trained and advised public officials on open meetings and open records issues. It also has helped mediate records disputes between citizens and government agencies, an effort she says has been stymied by a lack of teeth.

Madigan, a Democrat pondering a run for governor in 2010, says she wants to do more. Seizing upon the public outcry for change following the scandalous tenures of two successive governors, she is seeking more authority to settle records disputes and penalize public officials who violate the law.

More here.

Holder issues new FOIA guidelines

In accordance with President Obama's call for a presumption of openness, Attorney General Eric Holder's memo directs agencies not to withhold records just because they can technically do so. Agencies are encouraged to make discretionary disclosures or partial releases of records that can't be released in full. Another change is that no longer will the department defend a denial of a request simply because the agency had a "sound legal basis" for withholding the documents. It will only defend denials in which disclosure is prohibited by law or would harm an interest protected by a statutory exemption.

Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency. The memo rescinds the guidelines issued by the previous administration.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," said Attorney General Holder. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

More here.

Download PDF of guidelines here.

Ill. attorney general tries to stop agencies from ignoring FOIA

Illinois Attorney General Lisa Madigan continues pressing for more teeth in the state's FOIA, Legal Newsline reported.

Illinois government agencies should be fined up to $1,000 each time they refuse to allow citizens to view basic public records, the state attorney general says.

Calling for increased transparency in state and local government, Illinois Attorney General Lisa Madigan told state lawmakers Wednesday that reforms are needed so agencies don't shirk their responsibilities under the Illinois Freedom of Information Act.

Speaking to the recently-formed Joint Committee on Government Reform, the Democratic attorney general said ethics reforms in the Land of Lincoln are well overdue, following the ouster of Democratic Gov. Rod Blagojevich, whose administration routinely denied media and citizens' requests for basic public documents.

More here.