Journalists guiltless after latest WikiLeaks releases, MU experts say

from the Missouri School of Journalism:

Columbia, Mo. (Dec. 2, 2010) -- With its major release of classified U.S. government information, the WikiLeaks organization has forced its way into international news again. Now that the secret diplomatic data have hit newspapers, broadcast media and Internet wires, University of Missouri free speech experts say that the journalists who have disseminated the information have not crossed legal or ethical boundaries.

Christina Wells, the Enoch H. Crowder Professor of Law at the MU School of Law, and a free speech law expert, says that while the government would probably have a legal case against the source of the information leaks, legal precedent for disseminating the information is on the side of journalists.

"The bar that the Pentagon Papers case set for press injunction is so high that it would be extremely difficult for the government to meet it," Wells said. "There also is very little basis for criminally prosecuting publishers of such information. Journalism publishing has evolved so much with the Internet that it would be impossible to stop the spread of information, even if the government legally could."

Charles Davis, an associate professor of journalism studies at the Missouri School of Journalism and freedom of information expert, believes that while previous WikiLeaks disclosures were handled poorly, the organization made a positive effort to work through the proper professional channels in this instance.

Read the rest here.

A&M limits faculty's open-records assignments

from statesman.com:

Faculty members and open-records advocates are criticizing a Texas A&M University System policy that bars professors from directing students to submit public information requests to A&M campuses and agencies.

Journalism teachers sometimes instruct students to file such requests under the Texas Public Information Act to gain experience using an important tool for reporters.

[....]

"It looks like something that would be in The Onion," Wanda Garner Cash, a clinical professor of journalism at the University of Texas, said , referring to the publication that employs satire and fiction for its take on the news.

[...]

Kenneth Bunting, executive director of the National Freedom of Information Coalition, based at the University of Missouri School of Journalism, said, "I don't know whether we should give the university's attorney kudos for his insanely inventive nuance, or a swift kick in the rear for pushing the administration into an indefensible stance from which they must surely back down."

Read the rest here.

EFF compares documents from similar FOIA requests

from the Electronic Frontier Foundation:

EFF recently received documents in response to one of our Freedom of Information Act (FOIA) requests that demonstrate a disturbing trend: the FBI's arbitrary application of FOIA exemptions to hide, or in some instances, reveal, its unlawful activities.

Through a careful comparison of thousands of pages of documents we received from this FOIA request with the same documents we received from an earlier FOIA request, we found that redactions in many of these duplicated documents were strikingly different. In several cases, the FBI redacted more information in later-produced documents than it did in earlier-produced documents. In other cases, the FBI redacted differing amounts of information when it produced two copies of the same report in response to the same FOIA request.

Sometimes the agency blocked out whole paragraphs, while at other times it blocked out only the key words that explain the details of its acts. What is interesting is that the FBI claimed the same FOIA exemptions in each version; it just applied them differently.

Read the rest here.

Loopholes already being sought for earmark ban

from the Sunlight Foundation Blog:

Some House Republicans are already looking for a way around the ban on earmarks imposed on the next Congress. These members are rapidly trying to come up with a new definition for earmarks, or directed spending, to skirt the ban.

Politico reports, “[S]ome Republicans are discussing exemptions to the earmark ban, allowing transportation, U.S. Army Corps of Engineers and water projects. While transportation earmarks are probably the most notorious — think “Bridge to Nowhere” — there is talk about tweaking the very definition of “earmark.”

[....]

If Congress is at all serious about reforming earmarks they need to do something about the transparency of earmarks. This is especially true if they aren’t as serious as they say they are about a ban.

Read the rest here.

Court allows broadcast in Calif. same-sex marriage appeal

from Reporters Committee for Freedom of the Press:

The U.S. Court of Appeals in San Francisco (9th Cir.) allowed the live broadcast Monday of more than two hours of oral arguments in Perry v. Schwarzenegger, a case challenging the constitutionality of California’s ban on same-sex marriages.

The hearing before the three-judge panel is the latest legal step in the case brought by two same-sex couples to challenge California’s Proposition 8, an amendment to the state constitution enacted by voters in 2008.

In August, a federal court in San Francisco ruled that Proposition 8 violated the federal constitution. That ruling, by Judge Vaughn Walker, came after a trial that, by order of the U.S. Supreme Court, could not be broadcast to the public.

In a 5-4 decision, the Supreme Court rebuffed Walker’s plan to broadcast the trial, ruling that the broadcasting would conflict with court policy and procedural rules. The Supreme Court also noted the possible chilling effect on witnesses.

The Ninth Circuit’s decision to broadcast Monday's hearing did not raise the same issues.

Read the rest here.

Whither transparency in the next Congress?

from OMB Watch:

When the 112th Congress convenes in January, attention will be focused on the newly Republican-controlled House. On transparency issues, House Republican leaders have sounded positive tones. However, it remains to be seen whether bipartisan consensus on meaningful transparency can be achieved or whether transparency will be wielded as a partisan weapon.

Undoubtedly, divided party control of Congress will mean a more adversarial relationship between Congress and the White House and between the House and the Senate. What remains unclear, however, is whether Republicans will support the administration's many positive efforts to improve transparency while criticizing the instances where it has fallen short or dragged its feet. The House could also fall prey to the political theater that often occurs when parties in divided government compete for the public spotlight.

Read the rest here.

Coding the middleware for government data

from O'Reilly radar:

Cities, states and agencies are publishing more government data online, but that's just the tip of the iceberg. Much government data is still in paper form, locked away in file cabinets, or in closed formats on obscure servers. ... The Department of Labor is just now starting to put that data online. That's why reporting on the progress of open government data initiatives is a key pillar of Gov 2.0. For those who have been working toward more transparent government, that issue is central to their work.

[...]

Under the Open Government Directive, a PDF qualifies as an open format. BrightScope uses government data, but it's not "open" in the sense that technologists use the term, nor did BrightScope's business result from the open government initiative. Put in the context of Tim Berners-Lee's definition for open linked data or the principles at OpenGovData.org, PDFs on CD might not merit even one star, although BrightScope has been able to move forward with their business in the meantime.

Read the rest here.

CREW: DOJ is a roadblock to open government

from CREW:

Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Attorney General Eric Holder expressing concern over the Department of Justice's (DOJ) failure to abide by President Obama's commitment to government transparency and accountability.

Despite policy directives from President Barack Obama and Attorney General Holder mandating a presumption of openness in administering the Freedom of Information Act (FOIA), DOJ continues to operate - as it did during the Bush administration -- under a presumption of secrecy, deliberately withholding information about what DOJ is up to and why.

Read more here.

Unplug WikiLeaks? Enact a federal shield law instead

from The Huffington Post:

The Obama administration has made no secret of its desire to unplug WikiLeaks, the whistleblower website infamous for data dumps of classified records. Of the few options available to the government, the best is one that probably hasn't been considered in this context: enacting a federal shield law.

How would a shield law -- a version of which has passed the House and awaits a vote by the full Senate -- put WikiLeaks out of business? The answer is that it would remove the need that WikiLeaks fills. If that were to happen, WikiLeaks would receive few, if any, sensitive documents leaked by sources inside US government agencies.

The purpose of a shield law is to enable journalists to protect the identity of their confidential sources -- which, under current law, they can't do. Although journalists, in dealings with a source, can promise confidentiality up to a point -- the point being when a federal judge orders a journalist to identify her source or go to jail -- the risk of disclosure deters sources in many cases.

Read more here.

(Massachusetts) State tells man he may be jailed for releasing data

from boston.com:

Governor Deval Patrick’s administration told a local website operator he could face jail time for publishing information that the state provided under an open-records request.

It is unclear whether officials would or could follow through with the threat to Michael Morisy, cofounder of MuckRock (muckrock.com), a website devoted to open records. But the unusual letter, also published on the website, has forced him to consult with an attorney.

The data, which Morisy had not removed from his website by last night, show how much money in food stamps has been spent at businesses around the state over the past five years under the federal Supplemental Nutrition Assistance Program. The state said the information was released erroneously and in violation of federal law.

Read the rest here.

CIA faces second probe over videotape destruction

from msnbc.com:

The legal inquiries into the CIA’s destruction of videotapes showing the brutal interrogation of terror suspects may not be over after all.

A day after the Justice Department announced that a special counsel had concluded his investigation into the matter without bringing criminal charges, officials of the National Archives and Records Administration signaled Wednesday that they plan to reopen their own long delayed probe into whether the agency’s actions constituted an improper destruction of federal records.

“We’re not going to let this drop,” Susan Cooper, a spokeswoman for the National Archives told NBC.

Read the rest here.

'[We] Can Neither Confirm Nor Deny the Existence or Nonexistence of Records Responsive to Your Request': Reforming the Glomar Response Under FOIA

from New York University Law Review:

Under normal Freedom of Information Act procedures, an individual submits a request for records to a government agency and receives one of three responses: The agency may identify responsive records and release them, determine that there are no responsive records and inform the requestor of this fact, or identify responsive records but determine that they are exempt from disclosure under one of FOIA’s nine statutory exemptions. Since the 1970s, however, a fourth type of response has arisen: Agencies sometimes refuse to confirm or deny whether responsive records do or do not exist on the grounds that acknowledging their very existence itself would reveal secret information.

This withholding mechanism, known as the Glomar response, creates special problems for FOIA requestors and receives remarkable deference from federal courts. This Note assesses the justifications for such deference, which are often rooted in separation of powers concerns. Arguing that the level of deference afforded is excessive, this Note posits that both separation of powers and institutional conflict of interest considerations support greater judicial scrutiny of agency invocations of the Glomar response. This Note concludes by offering proposals for judicial, legislative, and administrative reform of the Glomar response.

Read the entire Note from the NYU Law Review here (PDF / 136 KB).

Open government advocates welcome new limits on information markings

from NFOIC.org and OpenTheGovernment.org:

(Washington, DC, November 4, 2010 )—Organizations working on government openness and accountability welcome the release of the Executive Order on Controlled Unclassified Information (CUI) (PDF/16 KB). The Order rescinds the Bush Administration CUI memorandum, which was intended to create "a tiered system of designations and establish a framework for designating, marking, safeguarding, and disseminating designated information." Instead, the Order simply standardizes and limits the use of control markings on unclassified information.

Patrice McDermott, Director of the OpenTheGovernment.org coalition, said "The Bush policy and earlier drafts could have created a fourth level of classification. Instead, this Order is a victory for openness, for both our community and the Administration. We applaud the Administration for the time, effort, and thoughtful consideration of input from inside and outside government it took to make this the outcome."

Read the rest here.

Cavanagh named NEFAC executive director

PROVIDENCE, R.I. - Rosanna Cavanagh, who holds law and business degrees from Cornell University, has been named executive director of the New England First Amendment Coalition (NEFAC), a regional organization devoted to furthering freedom of information and government transparency.

Her appointment was announced today by Thomas Heslin, executive editor of the Providence (R.I.) Journal and president of NEFAC, a non-profit whose leadership includes journalists, educators and First Amendment lawyers from the six New England states. NEFAC works in partnership with the First Amendment Center at Northeastern University in Boston.

"We are excited to move NEFAC forward as an organization and the timing could not be better for us to take this step," Heslin said.

"As Franklin D. Roosevelt said, 'In the truest sense, freedom cannot be bestowed; it must be achieved.' "

Cavanagh brings to the NEFAC position experience at the corporate law firm of Ropes & Gray in Boston, and past experience as board member, treasurer and co-chair of the fundraising committee for Everybody Wins Metro Boston.

NEFAC is a member of the National Freedom of Information Coalition (NFOIC).

Visit NEFAC for more of the story.

Springfield (Mo.) school board says finance committee not official

from the Springfield News-Leader:

Following questions about why the Springfield school board finance committee wasn't complying with the Sunshine Law, the board now contends it wasn't an official standing committee.

The board argues that even though the committee has met regularly -- often at least monthly -- for at least eight years and various board members have served on it, it was merely an advisory group.

"That's a technicality," said Jean Maneke, a lawyer with the Missouri Press Association. "It doesn't make any sense if they're not part of the board."

Read more here.

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.

NFOIC, partners, urge Congress not to limit access to critical NTSB info

from NFOIC and OpenTheGovernment.org:

Dear Chairmen and Ranking Members,

On behalf of the undersigned organizations concerned with government openness and accountability, we are writing to urge you to not include in the final version of the National Transportation Safety Board Reauthorization (NTSB) Act of 2010 (HR 4714, S 2768) two provisions in Section 3(d) of the Senate- passed version of the bill, S. 2768, that unduly limit the public’s ability to access critical information.

The Senate-passed bill would needlessly expand categories of information that may be withheld under exemption b(3) of the Freedom of Information Act (FOIA) for records related to ongoing Board investigations. There is no reason to offer the NTSB greater protection beyond the existing FOIA exemptions that provide protection for ongoing investigations, and represent a proper balancing of interests. Indeed, given the critical safety issues the NTSB investigates, the public’s interest should be paramount. We understand that NTSB has expressed concerns that fulfilling public requests for information takes time and resources. Expanding categories of information withhold-able under our oldest public disclosure law is not, however, an appropriate way to handle resource issues, and is not in the spirit of the law. House-passed version of the bill, HR 4714, contains no such expansion.

Read more here.

Delaware Public Service Commission proposes new rules for info requests

from delawareonline:

Anyone seeking documents from the Delaware Public Service Commission should prepare to ask for them the old-fashioned way -- and pay for them.

David L. Bonar, the PSC ombudsman, said the changes are needed because people have dashed off information requests through e-mail, resulting in a large use of staff time. The proposal would require people to put in some thought and consideration, rather than "in a moment of anger, sending us requests for volumes of information," Bonar said.

Read more here.

Oregon attorney general suggests government transparency reforms

from the Portland Business Journal:

Oregon Attorney General John Kroger on Thursday released a Government Transparency Report that highlights problems with the state's public records and public meetings laws and offers remedies.

The 16-page report is based on hundreds of comments collected in six public meetings across Oregon.

Read more from the Business Journal here, and view the full report available from the NFOIC site.

Washington state high court rules metadata are public records

from The Reporters Committee for Freedom of the Press:

The Washington Supreme Court upheld Thursday an appellate court’s ruling that metadata -- information related to the history, tracking or management of an electronic document -- is a public record subject to disclosure under the state Public Records Act.
The ruling involved a 2006 case in which Shoreline, Wash., resident Beth O’Neill sued under the Public Records Act to obtain metadata detailing the senders and recipients of a string of e-mails sent to Shoreline Deputy Mayor Maggie Fimia that accused the city council of being “dysfunctional.”

[...]

In writing for the majority, Justice Susan Owens stated: "Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom."

Read more here.