Tennessee Series Generates Huge Response

From Editor & Publisher:

The Knoxville News Sentinel's open-meeting lawsuit against 20 current and former members of the county commission has struck a chord with readers.

Hundreds of them. Too many letters and e-mails to print.

It is the very response the American Society of Newspaper Editors might hope for as it concludes Sunshine Week, promoting open government at all levels.

"There is so much negative feedback in this business. Sometimes you get the feeling that everybody hates you and you never can get anything right," editor Jack McElroy said. "To latch onto something where people are supportive of you and enthusiastically so, it is really nice to feel."

The paper's lawsuit contends that Knox County commissioners made private deals before they appointed eight new members to fill term-limited vacancies Jan. 31 in a process steeped in small-town, good ol' boy cronyism and nepotism.

Three of the eight appointees had relatives on the commission, and 13 of the 19 commissioners either work for the county or have relatives that do. None abstained from voting as they filled the eight commission seats and four county offices following a Supreme Court order to recognize term limits adopted by voters in 1994.

It's illegal in Tennessee and most other states for members of a county commission or city council to meet in private to discuss public matters, except in limited circumstances.

But Tennessee's law has few teeth. News media groups, citizen groups and open government advocates are urging lawmakers to toughen the sunshine law. Among the proposals: Impose fines on public officials who close meetings or withhold documents. And last month, Gov. Phil Bredesen announced his plan to establish an ombudsman to help people denied access to public records.

Meantime, the News Sentinel's lawsuit may not be resolved for months. An initial hearing has yet to be set. And thenew commission appointments only run through 2008.

Sunshine Week Column for You....

In Sunday's Kansas City Star...

Sunshine Week is an occasion for thinking about the importance of access to governmental information — not the sexiest of topics, admittedly, but sometimes the things we take for granted have a way of sneaking up on us.

Every week is Sunshine Week at the National Freedom of Information Coalition, a nonprofit academic center at the University of Missouri School of Journalism. My job consists of helping a never-ending array of requesters with information requests languishing at all levels of government, from federal agencies to local boards.

Think that freedom of information is some special-interest fetish of the press? Think again...

While the Beltway Journalists Sing....

Josh Wolf rots in jail...

The SF Bay Guardian's Bruce Brugmann says it's a shame, and calls out Kurtz:

Marvelous. Simply marvelous. While ten of the l9 witnesses testifying in the Libby trial were singing journalists, and three of them were central to securing Libby's conviction, Howard Kurtz, the media critic of the Washington Post and the voice of the inside-the-beltway media establishment, did not raise any of the obvious issues and questions in this unprecedented mass outing of sources by journalists in federal court in Washington, D.C. It was a "spectacle that would have been unthinkable only a few years ago," as Adam Liptak put it rightly in the New York Times March 8.

Instead, one day after the Libby guilty verdict, Kurtz went after Josh Wolf, the longest jailed journalist in U.S. history for contempt of court, in his March 8 column headlined "Jailed Man Is A Videographer And a Blogger but Is He a Journalist?" Kurtz, who tosses softballs about every Sunday morning in his media show on CNN, hit Josh hard with a lead that said, "He is being cast by some journalists as a young champion of the First Amendment, jailed for taking a lonely stand heavy-handed federal prosecutors."

Then: "But Wolf's rationale for withholding the video, and refusing to testify, is less than crystal clear. There are no confidential sources involved in the case. He sold part of the tape to local television stations and posted another portion on his blog. Why, then, is he willing to give up his freedom over the remaining footage?"

And then he quoted, not a media lawyer nor a journalist with knowledge of
California law, but a professor who ought to be flunked out of law school (Eugene Volokh, a law professor at the University of California Los Angeles). Kurtz quoted Volokh as saying without blushing, "It's one thing to say journalists must respect promises of confidentiality they made to their sources. It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources. When something is videotaped in a public place, it's hard to see even an implied agreement of confidentiality."

To which I ask....whatthe?

FOI Reforms Move Out of Committee!

Big News out of Washington:

The House Oversight and Government Reform Committee today approved HR 1309, the Freedom of Information Act Amendments of 2007, sponsored by William Lacey Clay, D-MO, Todd Platts, R-PA, and Henry Waxman, D-CA.

The bill is intended to force broad changes in government agency performance and response to FOIA requests.

The committee also cleared two other open government bills, one overturning President Bush’s order that blocked release of presidential records, the other requiring disclosure of donors to presidential libraries. All are expected to be offered for floor vote within the next week.

Also next week, Sens. Patrick Leahy, D-VT, and John Cornyn, R-TX, will introduce the 2007 version of their OPEN Government Act. The major difference between the House and Senate bills may be the final section of the House bill, which creates a presumption of openness for government records and direct agencies to release information if they do not reasonably foresee that disclosure would be harmful.

In effect, this reverses the Ashcroft memo – withhold information if there is any legal basis to do so. This still stands as Justice Department guidance to all federal agencies. Rep. Lamar Smith, R-TX, who sponsored FOIA reform in the last Congress, introduced a bill identical to Clay”s except for this section. At Thursday’s hearing, Republicans tried but failed to strike this section.

Here’s what else the “Freedom of Information Act Amendments of 2007” does:

-- Put pressure on the agencies to meet the 20-working day response deadline by waiving search and copying fees if the deadline isn’t met.

-- Requires agencies to establish FOIA hotlines and request tracking systems.

-- Creates an independent ombudsman, located in the National Archives, to help requesters resolve disputes without resorting to litigation.

-- Establishes the requester’s right to recover legal fees if they obtain disputed records from an agency after filing suit.

-- Broadens the definition of a journalist for fee waiver purposes to include most freelancers and bloggers.

-- Mandates broader and more specific performance reporting to heighten agency accountability for service quality.

-- Direct agencies to indicate the specific exemption being cited at the location of any redaction in a document.

-- Makes clear that government records held by private entities are covered by FOIA.

-- Requires that any bill amending the Freedom of Information Act include a clear marker declaring that intent.

-- Directs the Office of Personnel Management to report on the adequacy of FOIA staffing.

He's Baaaaaaack.....

From the Coalition of Journalists for Open Government:

Once again, an urgent request for action in response to efforts by Sen. Jon Kyl, R-AZ, to criminalize the leaking – and publishing – of classified information.

Sen. Kyl first sought to attach to a data mining bill being considered by the
Judiciary Committee what can only be described as a backdoor approach to an official secrets act. When the bill was held over, at least in part because its sponsor considered the amendment unfriendly, Sen. Kyl withdrew it and then submitted a rewritten version as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 commission. That bill could be voted on as early as mid-week.

The modified amendment is not as sweeping as the earlier version but it is still dangerous revision of the Espionage Act and its chill would inevitably extend far beyond the classified information included. The new amendment makes it a crime to leak or “publish” any classified information contained in reports provided to Congress. These required reports -- 28 in all -- are detailed in three statutes identified in the amendment. (A copy is attached.)

Even as modified, the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the burden that the government must meet in order to prosecute a government leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information "in any manner prejudicial to the safety or interest of the United States". This lower standard could lead to a chilling of daily communications between the government and the media.

In addition, amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security, and that is reported in the local newspaper, the reporters and publisher could be prosecuted for informing local citizens that they may be at risk,

Once again, Sen. Kyl seeks to use the amendment procedure to avoid the give and take of hearing and debate and a full and thoughtful discussion of whether any new law involving leaks are needed.

From our soundings on the Hill, there is considerable concern that if the amendment is added to the 9/11 bill it could be approved by the Senate.

This is not the time to wait and see what happens. Please share this and impress on your members the urgency of raising all our voices.

Latest on Espionage Act stuff

From my pal Rick Blum for the Sunshine in Government Initiative:

The markup on S. 236 was postponed.

Senator Kyl dropped his original broad language yesterday afternoon and last night circulated narrower language that he intended to bring up. Feingold, the sponsor of S. 236, the data mining bill, postponed consideration of it until the next meeting. The narrower language is still problematic.

Here is the new language:

SEC. 4. PROTECTION FOR CLASSIFIED INFORMATION CONTAINED IN AN ANNEX TO A DATA MINING REPORT.

Except as specifically authorized by paragraph (b)(8) of section 3 of this Act, whoever, being an employee of the United States House of Representatives or Senate, or being entrusted with or having lawful possession of, access to, or control over, any classified information contained in an annex made available pursuant to paragraph (b)(8) of section 3 of this Act, and who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available such information to an unauthorized person, shall be fined under Title 18 of the United States Code or imprisoned not more than ten years, or both.