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.

Public information indictments thrown out

from Freedom of Information Foundation of Texas:

A state district judge threw out the indictment against Texas State Jail Standards Commission Executive Director Adan Munoz, saying wording in the criminal charge for allegedly releasing confidential information was “too vague.” It is unclear what action, if any, local prosecutors might take in moving forward for a possible new indictment or public apology. Munoz had been accused of improperly releasing information to two Corpus Christi reporters in response to a Texas Public Information Act request.

Read more here.

NFOIC awards Knight FOI Fund litigation grant in New York public records suit

from NFOIC.org:

COLUMBIA, Mo. (September 28, 2010)—A news website publisher in upstate New York and a citizen open government activist have been awarded a litigation grant from the Knight FOI Fund to press a legal action against a volunteer fire company.

According to a complaint filed in the Warren County (NY) Supreme Court, the Chestertown Volunteer Fire Company continues to insist it is not subject to New York state’s Freedom of Information Law (FOIL) and Open Meetings Law (OML), despite repeated requests for records and meeting access by the plaintiffs in the case, and an advisory opinion issued in June by the state’s Freedom of Information Committee.

The $2,000 litigation grant was announced by the National Freedom of Information Coalition (NFOIC), which administers the Fund that was created by the John S. and James L. Knight Foundation. The grant was the first awarded for a New York case since the Fund was established in January.

Read more here.

SEC secrecy repeal sent to Obama

from Project On Government Oversight:

The House voted Sept. 23 to repeal Section 929I of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which had provided the Securities and Exchange Commission (SEC) with sweeping new powers to hide its records from public scrutiny. The House’s passage of S. 3717 comes just one day after the Senate voted unanimously to strike the troubling secrecy measure, and is the first legislative correction to the new financial regulatory overhaul law.

[...]

Section 929I would have given the SEC the blanket authority to block the release of records in response to Freedom of Information Act (FOIA) requests, and to withhold records in response to subpoenas filed by third-party civil litigants, even if such records were needed to expose corruption or incompetence at the agency. S. 3717 repeals these overly broad and unnecessary secrecy measures, and clarifies that an existing FOIA exemption, Exemption 8, will protect against the release of confidential information contained in the records of any entity that falls under the SEC’s regulatory authority.

Read more here.

NFOIC, partners, urge House to pass Access to Congressionally Mandated Reports Act

from NFOIC.org:

On behalf of the undersigned organizations concerned with government accountability and transparency, we are writing in support of H.R. 6026, the Access to Congressionally Mandated Reports Act. H.R. 6026 was introduced by a member of the Information Policy, Census and National Archives Subcommittee, Representative Driehaus (D-OH), and is cosponsored by the Chair of the Information Policy, Census and National Archives Subcommittee, Representative Clay (D-MO) and the Committee Chair, Representative Towns (D-NY).

H.R. 6026 requires that any report required by statute to be issued to Congress and releasable under the Freedom of Information Act (FOIA) be posted on a website managed by the Office of Management and Budget (OMB). The reports would be available no later than 30 days after their transmission to Congress, and would be searchable by a number of categories.

Read more here.

Bell (Ca.) arrests illustrate importance of open records

opinion, from Hawaii Reporter:

When Bell city officials started raking in obscene salary amounts, it’s a safe bet that they never considered the California Public Records Act. ... Eight Bell officials were arrested Sept. 21 for the misappropriation of $5.5 million. Los Angeles County District Attorney Steve Cooley called the Bell scandal “corruption on steroids.”

[...]

The California Public Records Act, which mirrors the federal Freedom of Information Act, requires public officials to disclose salaries, benefits and expenditures to the public. Political candidates must make similar disclosures. By law, records must be released within 10 working days barring extenuating circumstances.

Read more here.