Colorado School Board Ordered to Release Closed-Door Meeting Records

Former technology director Harriett White won a victory on several of her claims in a lawsuit against her former employer, the Brush School District in Colorado. A district court judge has ordered the school board to release complete or partial records from 11 closed-door meetings conducted in violation of the Colorado Open Meetings Law. The lawsuit touches on nearly every executive session held by the school board during 2009.

Get the details here.

Is There Such a Thing as Too Much Sunshine?

In Arizona and Hawaii, efforts to shut down repeated open records requests renew the age-old debate whether requests should be limited so that government agencies can conduct business.

Readers of this blog know where we stand. The Congress Elementary School District's lawsuit against four women for harassment through records requests with repeated requests could have a chilling effect on democracy far beyond the small Arizona school district. Similarly, Hawaii's efforts to restrict the rights of a "vexatious requester" is equally disturbing.

Read more about these efforts here.

Urbana, Illinois School District Spent More Than $2.6 Million in Lawsuit Settlements

The Bloomington Pantagraph used the Freedom of Information Act to get details about settlements entered into by the Urbana, Illinois school district, finding the school district has spent more than $2.6 million settling claims of students who were taught by now-convicted child molester Jon White.

White is serving 60 years in prison for molesting nine girls at an Urbana school and two more in Normal.

For more, click here.

File this Under "Ridiculous" - Suing Citizens to Silence Complaints

An Arizona school district claims it has been so harassed by repeated public records requests that it has sued four community members, claiming they have abused the public records request system by filing more than 100 public records requests.

In its Complaint, the Congress Elementary School District also claims the community members are "engaged in a coordinated campaign to harass and impede the functioning" of the school system by filing more than ten complaints with the state's Board of Education, the County Sheriff, the Fire Marshall, the Ombudsman, and the Attorney General.

The defendants say the lawsuit is an illegal attempt to silence citizens who have questioned the district's policies and spending practices.

Read more about the suit here, including a link to the Complaint filed by the school district.

New Knight Foundation Grant to Fund FOI Advocacy

The John S. and James L. Knight Foundation has approved a new $2 million, three-year grant to the National Freedom of Information Coalition to launch the Knight FOI Fund and support state open government groups.

In light of the declining levels of FOI advocacy due to the economic crisis and the evolution of the news media, the Knight FOI Fund will fund litigation costs, such as filing fees, deposition costs, and initial consultation fees, if attorneys are willing to take cases that otherwise would go unfiled. Additionally, the NFOIC will offer sustainability and project grants for state FOI coalitions, with a call for new grants to be made in the spring of 2010.

Read more information about the Knight FOI Fund and the underlying need for the new funding here and here.

Proposed Federal Legislation to Protect Petition and Free Speech

Rep. Steve Cohen (D-TN) has introduced the Citizen Participation Act of 2009, H.R. 4364, which encourages civic engagement and protects against meritless lawsuits brought against those who petition the government or speak out on a public issue. If someone is sued without merit for exercising his or her First Amendment rights, the bill would allow the defendant to have the lawsuit dismissed and recover attorney's fees.

Get more information about the bill here and a link to the bill here.

Calif. bill to relieve losing FOIA plaintiffs

A California bill recently signed by Gov. Arnold Schwarzenegger will relieve losing FOIA plaintiffs from having to pay attorneys' fees, the Reporters' Committee for Freedom of the Press reported. Fees could only be awarded if the court decides that the lawsuit was frivolous and without merit. The bill was passed in an effort to "curb the chilling effect that can accompany the assignment of extensive fees to plaintiffs who unsuccessfully sue the government to enforce the California Public Records Act." The law takes effect Jan. 1.

A California bill that will relieve losing plaintiffs in Freedom of Information Act lawsuits of having to pay attorney's fees passed the state's legislature last month. It is now awaiting a signature from the governor.

Under the proposed law, governments that prevail on an "anti-SLAPP" motion in FOIA cases will not be able to collect attorney's fees for claims brought against them in good faith. Fees could only be awarded in limited situations, such as when the court decides the action is frivolous and without merit. The state anti-SLAPP law allows defendants to have frivolous suits dismissed early.

More here.
Also, New Calif. law limits cost in public records fight, San Jose Mercury News.

Fox loses bailout-related Federal Reserve suit

A U.S. District Court judge ruled that the Federal Reserve Board had the right to withhold bailout-related documents from Fox News, the Reporters Committee for Freedom of the Press reported. Judge Alvin Hellerstein said the records fell under the exemption that protects trade secrets and confidential information and that the 12 regional Federal Reserve banks are not government agencies (therefore, the board doesn't have to search the banks' records in response to Fox's request). Fox is likely to appeal and has another pending FOIA suit against the Treasury Department for other bailout records. Bloomberg News and The New York Times have simliar pending requests.

A federal judge ruled against Fox News Thursday in a key Freedom of Information Act case involving bailout-related documents held by the Federal Reserve Board.

Judge Alvin K. Hellerstein in the U.S. District Court in Manhattan ruled that the Federal Reserve Board in Washington had properly withheld more than 6,000 pages of documents from Fox because the records fell under the FOIA exemption protecting trade secrets and confidential information.

Fox sought information about the Federal Reserve’s emergency lending program, known as the discount window.

More here.

Hawaii City Council must cancel closed-door actions

A circuit judge issued a temporary restraining order that essentially forces the Hawaii County Council to cancel a council reorganization plan that it discussed in a private meeting, the AP reported. The council will meet on Aug. 4 to rehear all measures. This order was prompted by a lawsuit filed by West Hawaii Today that alleges that the council violated the Sunshine Law by discussing the plan in private.

Members of the Hawaii County Council violated the state’s open-government law by privately discussing a council reorganization plan, a state judge said.

Circuit Judge Ronald Ibarra on July 23 issued a temporary restraining order, forbidding the council from doing business. But he delayed the start of the TRO until Aug. 5 to give the council time to rectify the situation.

The council has scheduled a special meeting for Aug. 4 to cancel the reorganization. It also plans to rehear all measures it considered after the June 16 changes went into effect.

More here.

Florida State sues NCAA for legal fees

Florida State wants the NCAA to pay its legal fees associated with a suit against the university and NCAA for not releasing records related to academic cheating sanctions, the AP reported. The university says it can't make the records public because of an NCAA Web site that forbids downloading or printing.

Florida State is back in court — suing the NCAA.

The school said Friday its wants the NCAA to pay its legal fees and other costs incurred in a suit filed against the university and the athletic governing body for failing to comply with Florida's public records law.

General Counsel Betty Steffen said it has been technically impossible for the school to make records in the case public because an NCAA website prohibits downloading or printing.

More here.

Justice Department argues for protection of Cheney's interview

The Justice Department is arguing that the release of Dick Cheney's interview with prosecutors concerning the CIA leak case could create a chilling effect, Politico reported. Department attorney Jeffrey Smith argued his case in front of Judge Emmet Sullivan in an FOIA lawsuit, which seeks the release of Cheney's interview records. Smith asked that the records be kept secret for five to 10 years so that it would be more likely for the information to be used "for historical purposes and not for political embarrassment." Sullivan has not stated his opinion on the case but did say at one point that the Justice Department seemed to be asking him to create a new vice presidents' exemption to the FOIA.

President Barack Obama’s Justice Department is arguing that former Vice President Dick Cheney’s interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.

“In making public the vice pesident’s interview, you will chill them,” Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.

Sullivan sounded highly skeptical of the government’s arguments, but he said he had not decided how he would rule in the case. "Where do I draw the line? This happened five years ago,” the judge said. “Would there be impediments to putting this information in a time capsule?”

More here.

Also, My Take On the DOJ Argument To Withhold Cheney Interview from The FOIA Blog: "The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply."

And, Saving Dick Cheney from 'The Daily Show'? from Politico: “The government doesn’t want to have what’s in these documents end up on a late-night comedy show,” Sullivan said.

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.

Records show Conn. officials were warned about dangerous chimp

FOI at Work!
Through an open-records request, the AP obtained records showing that Connecticut officials had been warned since 2003 about a chimpanzee that attacked a woman in February. A Stamford citizen sent an e-mail to the state Department of Environmental Protection asking for a thorough investigation after the chimp escaped from his owner's car in 2003. Someone who ran a primate rescue operation suggested that the chimp be placed in a sanctuary in 2004. The general public began contacting the department with safety concerns. The DEP said no calls or letters presented "specific information indicating that Travis (the chimp) had threatened the public safety or was exhibiting behavior that could lead to such a threat."

Connecticut officials were repeatedly warned about the dangers posed by a chimpanzee who later mauled and blinded a woman and were urged — more than three years before the attack — to take action, but failed to do so, according to records obtained by The Associated Press.

The 200-pound chimpanzee named Travis attacked Charla Nash of Stamford in February, ripping off her hands, nose, lips and eyelids. She has been hospitalized for months at the Cleveland Clinic, where her condition late last week was listed as stable.

The state's response could affect a high-stakes lawsuit the victim's family filed against the chimp's owner, Sandra Herold of Stamford, seeking $50 million in damages. Attorneys are weighing whether to sue others as well, but declined to comment further.

More here.

Chicago Tribune sues for data on clout applicants

The Chicago Tribune has filed a lawsuit against the University of Illinois after officials declined to disclose ACT test scores and GPAs for applicants who were given preferential treatment. The data was originally requested in April while the newspaper was conducting its investigation. The university president says FERPA prevents the release of those details even if student names would be redacted.

The Chicago Tribune filed a state lawsuit Tuesday against the University of Illinois demanding the immediate release of grade point averages and standardized test scores of the hundreds of college applicants placed on an internal list of well-connected students.

The Tribune originally sought the information in April for an ongoing series of stories about the clout list, in which it reported that students whose applications were pushed by public officials or university trustees received preferential treatment by the admissions office despite concerns about some applicants' qualifications.

In response to an Illinois Freedom of Information Act request by the Tribune, the university released about 1,800 pages of documents -- including e-mail exchanges expressing worry about the "terrible" and "weak" academic records of some applicants -- that have been the foundation of the Tribune's "Clout Goes to College" series.

More here.

Obama embraces another Bush secrecy policy

The Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration after Secret Service rejected requests for White House visitor logs, the Washington Post reported. CREW specifically sought data on the visits of coal company executives but had submitted a broader request for logs that was also denied. Obama's administration says the policies are being reviewed.

President Obama has embraced Bush Administration justifications for denying public access to White House visitors logs even as advisers say they are reviewing the policy of keeping secret the official record of comings and goings.

In recent days, the Secret Service has rejected requests from two organizations for the logs, which document the West Wing meetings that have helped shape Obama's policies on banking regulation, economic recovery, foreign policy and the auto industry.

Today, Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration seeking release of the visits of coal company executives to the White House. Msnbc.com reported today that their broader request for logs since Jan. 20 was also denied.

More here.

NFOIC Summit: Texts, Lies and Video Tape

Paul Anger, editor and publisher of the Detroit Free Press spoke of the controversy surrounding former Detroit mayor Kwame Kilpatrick and how the newspaper used FOI to tell the story. The Detroit Free Press won the Pulitzer Prize in the local reporting category for its coverage of the scandal. Here are the notes from his session at the NFOIC Summit:

Background on the issue:

• Detroit lived with this nightmare for almost a year. Public records were hidden away literally under lock and key. In the end, $14 million of public money had gone down the drain. The paper's FOI lawsuit generated as much drama as Boston Legal. And there was a human tragedy. Kilpatrick was a dynamic man, father of three and rising star. Now he's a convicted felon who spent more than three months in jail and still doesn't get what he did wrong.
• The scandal began six years ago when Kilpatrick started having an affair with Christine Beatty, who later became his chief of staff. But he didn't just have an affair. He and Betty fired three police officers in 2003. The officers then filed a whistle-blower suit accusing Kilpatrick of retaliation because of their actions in an internal affairs investigation of the mayor's security team.
  
• Four years went by before the trial started. He and Beatty lied about their affair under oath. The jury didn't buy the mayor's story and awarded each of the two officers more than $2.5 million. The mayor vowed to appeal.
  
• The attorney for the police officers obtained text message records through a subpoena.
  
• The mayor agreed to a secret deal to settle the lawsuit in exchange for keeping the text messages private. They were to be locked in a safety deposit box and destroyed. Then suddenly, he announced that after searching his soul he had decided to settle the case for $8.4 million.
• The Detroit Free Press filed an FOI request for all records related to the settlement. The paper filed a second request for confidential records.
  
• The newspaper sued the city for all documents that had not been made public after the settlement.
• The city released the public agreement signed but didn't disclose the secret agreement.
  
• Through anonymous sources, the newspaper obtained 14,000 text messages. The messages disclosed the affair and the pair's intention to fire Gary Brown, one of the police officers in the whistle blower case.
• Courts began unsealing documents.
  
• Kilpatrick pleaded guilty in September to two felonies. Betty pleaded guilty to two felonies in December.
• Kilpatrick faced charges of conspiracy to obstruct justice, obstruction of justice, misconduct in office and perjury.
  

Lessons from the Detroit Free Press coverage:

• The Detroit Free Press realized it was sitting on a story that could tear apart the community.
• Once it received the messages from anonymous sources, it had to ensure they were authentic. They used dates and other data to confirm that the electronic footprint was authentic.
• Several of the messages contained sexually explicit information the newspaper didn't publish. Anger said the newspaper knew the story wasn't about sex. It didn't want the public to miss the point of the story. The newspaper also didn't want to add to the embarrassment of the families involved. Anger said some staffers and community members felt that the paper should release all the text messages. He said the paper wanted to make sure it didn't become the story, which would have been a danger if it had posted all the messages online. As the courts released more text messages, the paper did post some of those.
  
• Journalism is alive and well on the Web. Journalism isn't dying, but it might be the demise if we cut reporters to the level where no investigative reporting is being done. Anger suggests cutting back on the expense of printing and physical delivery.
  
• The Free Press included streaming of live events, photo galleries and video to its Web site. The Web traffic increased over 75 percent. The site received 4 million page views the day the mayor pleaded guilty.
• Anger is in support of a federal shield law. He said sources never would have come forward without confidentiality. However, journalists should use anonymity rarely and always verify the information.
• Technology provides powerful tools to put public documents online. The documents, videos and live streaming allowed people to decide for themselves if they believed the mayor.
  
• The Free Press staff knew it would be accused of invading privacy. It tried to bullet-proof itself by organizing a group to "prosecute" each story on the issue and how the story was presented.
  
• The Free Press has spent about 10 times per month what its legal budget really is. Gannett supported the paper's efforts.
• When Detroit set up its contract with its third-party vendor to store text messages, the mayor drafted a memo warning city employees that their messages were public documents. The city no longer has an arrangement with this third party vendor. So messages are no longer being stored in this manner.
  
• Anger says the real heroes in this situation were: Wayne County Prosecutor Kim Worthy, who considered the text messages public records; judges who ruled that the records should be released and ruled in favor of open records; Herschel Fink, the newspaper's attorney; and Barbara Wall, Gannett vice president and associate general counsel.
• The newspaper took a financial risk in this project, especially because no advertisers wanted to be anywhere near these stories.
• Anger did write some columns about the decisions being made regarding the coverage of this issue. The Web site included Q&As and live chats with the paper's investigative editor and the two main reporters, Jim Schaefer and M.L. Elrick.

Epilogue:

• Kilpatrick owes the city $1 million in restitution. He's currently living in a Dallas suburb and working at Covisint, a subsidiary of Compuware. He makes $120,000 a year and can earn up to $300,000. Initially he said he could only afford to pay $6 a month toward restitution. He was ordered to repay $6,000 a month. He has been late with payments.
• The state is investigating whether Kilpatrick illegally used political campaign funds to pay $1 million to lawyers. He maintains that he didn't break any rules in doing so.
• Kilpatrick also sued SkyTel, the city's former communications provider, for releasing the records.
• For all current and former coverage, go here.
  
• Beatty completed her three months in jail and remains without a job.
  
• The Free Press' FOI lawsuit is still active. The newspaper has asked for more text messages. Kilpatrick has vowed to run for office again, and the reporters want to ensure they get all the facts about this scandal.
  

Newspaper sues to learn if governor's permit was suspended

The Nevada Supreme Court heard argument on whether information related to Gov. Jim Gibbons' concealed gun permit should be released to the Reno Gazette-Journal, the Las Vegas Sun reported. Gibbons said he doesn't carry a concealed gun but has a permit. He surrendered his license in January of last year after a delay in getting the required training to carry one of his guns. He says no disciplinary action was taken, but a reporter heard that his weapon permit might have been suspended or revoked.

Gov. Jim Gibbons said today he never carries a concealed gun, even though he has a permit to do so.

And he said he once surrendered his weapons permit but he was never disciplined.

The Nevada Supreme Court has heard arguments on whether the Reno Gazette-Journal was entitled to information that may show the weapons permit of Gibbons was revoked or suspended. A district court has ruled the newspaper is not entitled to that information.

More here.

Appeals court rules in favor of disclosing travel records

The Third Court of Appeals in Austin ruled in favor of Hearst Newspapers and Cox Newspapers, which sued to get the travel records of Gov. Rick Perry's security detail, the AP reported. The Texas Department of Public Safety can now appeal to the Texas Supreme Court.

An appeals court has rejected attempts to keep the travel records of Gov. Rick Perry's security detail secret.

The Third Court of Appeals in Austin ruled Friday the Texas Department of Public Safety has failed to show that releasing the records would be an invasion of privacy and create an imminent threat of physical danger.

Hearst Newspapers and Cox Newspapers sued to get the records. DPS can appeal Friday's ruling to the Texas Supreme Court.

More here.

Open meeting laws may be unconstitutional

Elected officials have First Amendment rights to speak to each other in private. A federal appellate court decides that the Texas Open Meetings law must pass the strict scrutiny standard to be held constitutional, the Reporters Committee for Freedom of the Press reported. “The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel. Few laws are upheld as constitutional under this test which requires that the law is narrowly tailored to advance a substantial government interest. The determination must first be made by the federal trial court, RCFP reported.

In an opinion that could call into question the constitutionality of open meetings laws everywhere, a federal appellate court held Monday that the Texas Open Meetings law must pass a heightened constitutional test under the First Amendment.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

More here.

PDF of court opinion here.

The story behind the 2009 Pultizer Prize for Investigative Reporting

In the recent issue of the Columbia Journalism Review, David McCraw recounts the lawsuit behind The New York Times's story on retired military officers working as TV war analysts. McCraw and reporter David Barstow filed suit to get the Department of Defense to respond to an FOIA request for data from the Pentagon on the "dozens of retired military officers who had been deployed by Defense to sell the war in Iraq." He also describes how he used reporting to shape the litigation strategy.

Six years and a day after 9/11, I filed a complaint in federal court asking a federal judge to do what New York Times reporter David Barstow and I had failed to do in countless phone calls and letters for nearly a year and a half: get the Department of Defense to respond fully to David’s freedom-of-information request. The request was gargantuan—basically, David wanted every piece of paper the Pentagon had about dozens of retired military officers who had been deployed by Defense to sell the war in Iraq—and our hopes were modest. Freedom of Information Act cases often move slowly, and Defense had little interest in shining any light on how the retired officers—now rechristened “analysts” on TV—had been given special access to Pentagon briefings even as some of them pitched business for military contractors. There was also this: Our judge was a former government prosecutor, freshly appointed to the bench by President Bush.

Nothing quite prepared us for what followed. Over the next six months, Judge Richard J. Sullivan’s orders drove the release of thousands of pages of documents, and when the Pentagon stalled, he took no prisoners. The last time we appeared in his courtroom, he made himself clear: “The Executive Branch doesn’t get to just thumb its nose at a separate branch of government.”

More here.