Gov. Ted Kulongoski has signed two bills to accelerate requests for public records and require the release of some information that would be confidential otherwise under attorney-client privilege.
After a June 22 signing ceremony, Kulongoski said Oregon needs to put the public back into its 1973 public-records law, which has been eroded over the years by exemptions approved by lawmakers putting various records out of the public's reach.
"This is a change in direction," Kulongoski said at the signing ceremony. "Maybe it is the first step that we will try to correct a number of these problems."
One of the bills signed by Kulongoski requires government agencies to respond without delay to requests for public documents.
The other requires government agencies to release a condensed version of information that agencies otherwise could withhold from disclosure because of confidentiality of communications between agencies and the lawyers who represent them.
That bill stemmed from a case in which the Klamath County School District hired a lawyer to conduct an investigation into alleged mismanagement. The school board denied a citizen's request for disclosure of the results or the advice given by the lawyer after the investigation.
Both open-records bills — S.B. 554 and S.B. 671 — originated in the Senate Judiciary Committee, headed by state Sen. Ginny Burdick, D-Portland.
"This is the first time in many years that we have taken a major step to make the public-records law more accessible to citizens," Burdick said at the bill-signing ceremony.
Wednesday, June 27, 2007
Monday, June 25, 2007
A definite maybe. But don't hold your breath.
That's the answer today for Delawareans wondering whether bills to broaden the Freedom of Information Act to cover the General Assembly will be considered before the Legislature's adjournment Saturday.
House leaders promise a vote on one bill that would at least partially remove the General Assembly's exemption from the state's "Sunshine Law."
"Absolutely. That is a commitment I made," said House Majority Leader Richard C. Cathcart, R-Middletown.
But that bill -- and a similar measure introduced months ago by Sen. Karen Peterson, D-Stanton -- face big problems in the Senate, where Sen. Thurman Adams Jr., D-Bridgeville, has long opposed bills that would open the doors to committee hearings, records and legislators' spending vouchers.
Any FOIA legislation that makes it to the Senate by Saturday, when the legislature adjourns, is likely to stay there, awaiting lawmakers' return in January for the second year of the two-year legislative session.
Peterson says she labors under no illusions that Senate Bill 4, her bill to bring the Legislature under FOIA, is at the top of Adams' priority list.
"Sen. Adams did tell me last week that he intends to move S.B. 4. I don't know when he intends to move it -- it could be next year," Peterson said.
The General Assembly's half-hearted efforts to open its closed doors are a stark contrast to a branch of government not covered by FOIA: the judiciary.
Most court records already are open to public scrutiny, but in February, Chief Justice Myron T. Steele issued a directive to Delaware's courts ordering them to adopt formal public access policies to cover the release of administrative records.
That includes financial records such as expense reimbursement forms and travel expenses on state credit cards -- records the legislative branch steadfastly refuses to release.
"The Judicial Branch supports the presumption of open public access to court records, including court administrative records," Steele wrote, "to promote government accountability and greater public trust and confidence in the Judiciary."
Patricia Griffin, the state court administrator, said the courts are working to implement the Supreme Court directive "to be sure that the appropriate policies are in place as soon as possible."
The Justice Department's second annual report on agencies' efforts to improve responses to requests for public information paints a disingenuous "rose-colored" portrait, advocates of openness in government said Monday.
The 118-page report, issued earlier this month under a requirement in the December 2005 executive order mandating improvements in the administration of Freedom of Information Act requests, stated that agencies are making "diligent and measurable progress." But there is little evidence to support this conclusion, members of the FOIA community said.
Daniel Metcalfe, the former director of the Justice Department's Office of Information and Privacy, said the report is an "unfortunately transparent" attempt to make the situation look far better than it actually is. Metcalfe is now retired.
Rather than simply stating whether agencies were successful in meeting their goals as outlined under the executive order, the report makes use of Office of Management and Budget-style traffic light grades measuring success, Metcalfe noted. The grades are assigned by the Justice Department "in coordination with OMB," the report stated.
"The executive order says that either you met an improvement goal or you didn't," Metcalfe said. "That doesn't translate to red, yellow, green. It's black and white. And unfortunately, there's a lot of black underneath OMB's yellow."
The majority of the marks handed out to the 25 agencies and their components, over dozens of categories, were green. There were only four reds assigned.
"The only middle ground that has any place in a report such as this," Metcalfe said, is where an agency missed an early goal or interim milestone "but at least redoubled its efforts to meet it subsequently and by now has done so." But even this is "lamely obscured" by the OMB-style self-categorization, he said.
Legislation that would strengthen the beleaguered Freedom of Information Act had all the makings of what Capitol Hill politicos call a hot line bill.
It cleared the Senate Judiciary Committee by voice vote. More than 100 groups from across the political spectrum support it. The House approved a companion measure by a wide margin.
Yet, the bill sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., sits in limbo.
The reason? Arizona Republican Sen. Jon Kyl.
It's no secret that Kyl was the one who invoked a parliamentary procedure known as a secret hold last month to block the bill from sailing through the Senate without debate.
With just one objection, the bill went from "hot line" status to a legislative black hole.
"I cannot overestimate the power of each U.S. senator," said Robert Dove, the former parliamentarian of the Senate.
By placing the hold on the measure, Kyl is assured that nothing passes without his support, Dove said.
This is a significant victory for the right to know, which has been taking a real beating where privacy rights are concerned. Way to go, Chuck Tobin!
The public's right to know triumphed over government secrecy Friday when the Federal Emergency Management Agency was ordered to make public the addresses of more than 600,000 households that received $1.2 billion in aid after the 2004 hurricane season.
The (Fort Myers, Fla.) News-Press, Pensacola (Fla.) News Journal and Florida Today newspapers (all owned by Gannett Co. Inc.) sued FEMA for the names and addresses after their public-information request was denied by the agency.
A three-judge panel of the U.S. 11th Circuit Court of Appeals ruled that the newspapers have a right to the addresses, but not the names, of recipients of disaster aid.
The judges stated in their decision that, "disclosure of the addresses will help ... by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country, and we cannot find any privacy interests here that even begin to outweigh this public interest."
Kate Marymont, The News-Press executive editor, said, "The court spoke so clearly and passionately that it would be difficult to be more eloquent about the government's obligation and the public's interest in this case.
But Charles Tobin, of the law firm Holland & Knight, who represented the newspapers, said that the three-judge panel set a clear precedent and raised the bar for the privacy arguments that FEMA has used to deny information to journalists.
He also raised doubts that FEMA will continue its battle by appealing to the full 11th Circuit Court or going to the U.S. Supreme Court.
"I think the judges' decision is so compelling, leaving so little room for criticism, I'd be hard pressed to believe that they will continue to fight this," he said.
Newspapers weren't the only winners on Friday.
"This is a victory for taxpayers and their right to know if the government is spending their money on legitimate disaster relief claims," said Bryan Gulley, the press secretary for U.S. Sen. Bill Nelson, D-Fla. Nelson had been a supporter of the newspapers' nearly three-year fight for open records at FEMA.
Sunday, June 24, 2007
One of the most effective ways to control government and ensure that agencies are dedicated to serving the public rather than the bureaucracy is to guarantee broadest public access to government information. While the federal Freedom of Information Act (FOIA) is four decades old, you probably know that Arizona traces its own Public Records Law back to territorial days — 1901, to be precise. Just as our state law has been strengthened by amendments through the years, we also believe it is time to strengthen the federal FOIA again. S849 is the right vehicle to do so.
We understand that you raised concerns in the Senate Judiciary Committee about some of the bill's provisions, most significantly, those relating to attorneys' fees for successful litigants and penalties for agency delay. We urge you to support inclusion of a provision that would allow courts to award fees to parties who received the documents they requested only after they were forced to go to court. The law provided this result for many years before a Supreme Court case in an unrelated area changed things; there were no allegations of abuse or misuse of the judicial processes during that earlier period. In short, this provision only returns the law to an earlier time, allowing reimbursement for a private citizen who is forced to go to court to get the information requested, and then only after a court orders the payment.
We are sympathetic with your concern about denying the government the ability to rely on an exemption where there has been some agency delay. We agree with you that this might have some negative unintended consequences, for both the public and the agency. Perhaps you can get the sponsors of the legislation to remove this section if you agree to allow the bill go through with the attorneys' fees provision intact. This would be a win-win tradeoff.
Finally, we note that the Arizona Public Records Law not only allows an Ombudsman-Citizens Aide to assist the public in pursuing requests for information, but provides that persons wrongfully denied records can sue for any monetary damages caused by the denial. We are not suggesting a damage remedy in the federal context, but point out how seriously our State views the public's right to information. S849 would institute an alternative dispute process through a type of Ombudsman, and we think this would be a valuable addition to the federal law.
Very truly yours,
Sen. Karen S. Johnson (District 18)
Sen. Paul Aboud (District 28)
Sen. Tim Bee (District 30)
Sen. Ken Cheuvront (District 15)
Sen. Jake Flake (District 5)
Sen. Ron Gould (District 3)
Sen. Linda Gray (District 10)
Sen. Leah Landrum-Taylor (District 16)
Sen. Thayer Verschoor (District 22)
Sen. Jim Waring (District 7)
Open government training could be a factor in improved compliance rates recorded last year in East Texas, but the educational mandate may not be broad enough to ensure key public employees follow the law, according to a university study.
Journalism students at The University of Texas at Tyler found that two-thirds of the 118 entities they surveyed employ someone with the required training in open records law, although that person may not always be the one who has initial contact with the public.
Under Texas law, all elected or appointed public officials or their designee must complete training approved by the state's attorney general's office.
Hundreds of East Texas school trustees, city managers and council members, county clerks and public information officers received that training last year, but compliance information is not necessarily trickling down to front line employees and therefore possibly preventing violations, according to survey results.
In most cases, a clerk or secretary - employees not covered by the law - likely received an open records request first. Although the request often was passed on to a superior without incident, the survey found room for improvement.
In Canton, for example, a researcher noted a required open records information notice posted just left of the main entrance inside the police department building, yet an officer questioned the student said he would be charged $25 per report, and told him the requested information was "not usually given out to non-media" - all violations of the Texas Public Information Act.
The student researcher said Chief Operations Officer Michael Echols also told him he had "never heard" of open government training. The researcher was referred to City Hall, located about four blocks away, and later received the requested police documents through city hall personnel.
Echols did not return a telephone message requesting a follow-up interview. But City Secretary Julie Seymore said she is the city's trained public information officer and the city's policy is to refer all open records requests to her.
She said Echols told her no one in his department is trained about open records laws.
Wednesday, June 20, 2007
There's nothing illegal about the state releasing county-level enrollment numbers for the state's All Kids, Medicaid and other health-care programs, according to the director of a national association that advises states on data issues.
"We need to get data out into the public domain," said Denise Love, executive director of the National Association of Health Data Organizations, based in Salt Lake City.
But Gov. Rod Blagojevich's administration insists Illinois would violate patients' right to privacy - and run afoul of federal law - by telling the public how many people in each county receive benefits from All Kids, FamilyCare, Medicaid and other health-care programs run by the state.
Republican lawmakers contend the Democratic governor is trying to block scrutiny of state programs.
"The more information they give, the more they have to be held accountable for," said state Sen. Bill Brady, R-Bloomington.
Blagojevich aides deny the allegation. They said anything other than statewide enrollment statistics would violate the federal Health Insurance Portability and Accountability Act, which took effect in 2003.
"We are following the strictest HIPAA reading," said Amy Rosenband, spokeswoman for the Illinois Department of Healthcare and Family Services.
But Love said basic statistics at the county level don't identify whether specific individuals are covered by a state health program.
"I think that's the strictest reading I've heard," Love said of Illinois' interpretation. "It just doesn't make sense."
In 2005, the last year for which county-level data were available, about 37,500 children were enrolled in Medicaid and KidCare in the counties of Sangamon, Menard, Cass, Christian, Greene, Logan, Macoupin, Mason, Montgomery, Morgan and Scott. Sangamon County's total was 16,997...
Agencies that run health-care programs in Iowa, Wisconsin, Indiana, Missouri and Kentucky all continue to release county-level data.
"I know that we take HIPAA very seriously," said Stephanie Marquis, spokeswoman for the Wisconsin Department of Health and Family Services.
"But posting aggregate data? I'm not sure how that would somehow violate HIPAA."
The story was posted with permission at The Association of Health Care Journalists.
Pete Weitzel, former editor of the Miami Herald and founder of the National Freedom of Information Coalition, and the late Anna Politkovskaya of Novaya Gazeta, a Russian newspaper, won the John Aubuchon Freedom of the Press Award for their efforts in support of the public's right to know."In addition, I'm especially pleased that we are able to honor Pete Weitzel and Anna Politkovskaya for their ground-breaking achievements," Zremski added. "The cause of press freedom has no greater champion than Pete Weitzel. And Anna Politkovskaya, who never let death threats deter her from her remarkable reporting of the conflict in Chechnya, deserves to be remembered and honored for her courage and commitment to journalism."
Weitzel won a John Aubuchon Freedom of the Press Award for the work he has done with numerous foundations to promote the freedom of information. Since retiring as managing editor of the Miami Herald in 1995, Weitzel has founded the Florida First Amendment Foundation, the National Freedom of Information Coalition and the Coalition of Journalists for Open Government (CJOG).
He also was executive director of the North Carolina Center on Actual Innocence and taught at the University of North Carolina, Duke University and the Poynter Institute for Media Studies.
"Pete Weitzel is truly one of journalism's most unsung freedom of information heroes," said Debra Gersh Hernandez, chair of the NPC Freedom of the Press Committee. "CJOG's landmark research on federal Freedom of Information Act compliance has helped make the case for the first meaningful FOIA reform on Capitol Hill in decades."
The late Anna Politkovskaya also won an Aubuchon Award for her fearless reporting on the behavior of the Russian military in Chechnya. She was assassinated in her Moscow apartment building on Oct. 7, 2006. The killing spurred demonstrations in Moscow the next day, and candlelight vigils and protests still occur.
"Anna Politkovskaya paid the ultimate price for her investigation and reporting about abuses Russian forces were inflicting in Chechnya," Hernandez said. "An unyielding critic of Russian President Vladimir Putin, Anna's work had led to many previous death threats and a suspected poisoning attempt in 2004."
Two more deserving souls I can't imagine....
Tuesday, June 19, 2007
Claudia Krcmarik can't get documents about her father-in-law's death during a medical study. Meryl Nass keeps asking for records she thinks will show an anthrax vaccine is dangerous. The American Bakers Association's request for a paper on the safety of imported honey has languished.
All filed public information requests with the U.S. Food and Drug Administration at least four years ago and have yet to receive what they asked for -- even though American law says agencies must release records ``promptly.''
The FDA's 20,365 unfilled requests for information exceed the totals for the departments of Defense and Justice. One company, FOI Services Inc., accounts for 44 percent of the backlog, according to the agency. Researchers, consumer groups and individuals say the delays limit their ability to alert the public to food and drug dangers and to hold the FDA accountable.
``It is important information that we need to tell this story,'' said Krcmarik, of Ann Arbor, Michigan, who wants to know how her father-in-law was given an overdose in an FDA- regulated clinical trial before he died in 2002. ``That information should be available, and it should be timely. What we wanted to avoid is this happening to anyone else.''
The FDA's oversight of food and drug safety has come under criticism by advocacy groups and lawmakers. They say the agency failed to act effectively before Vioxx, a Merck & Co. painkiller, was withdrawn in 2004 because of a link to heart attacks and strokes and didn't alert the public more recently to heart risks associated with GlaxoSmithKline Plc's diabetes drug Avandia. They also fault the FDA for failing to prevent contamination of peanut butter, spinach and pet food.
Monday, June 18, 2007
The Argus Leader has a great crusade underway here...
Ever wonder how much money a state trooper makes?
How about snowplow drivers, state park managers or highway workers?
If you lived in many states, the answers would be as close as your computer or the local library.
In South Dakota, you can't find out.
The Argus Leader has made repeated requests over the past four months for a list of state employees and their salaries. State officials have refused to reveal the salaries for the vast majority of South Dakota's roughly 14,000 employees, their positions or even the department in which they work.
Making the employee list public would be against the law, according to a lawyer who represents the state.
That prevents South Dakotans from knowing whether their tax dollars are spent wisely.
It also keeps residents and employees in the dark about whether they are overpaid or underpaid, whether state workers with political or family connections get paid more, and a host of other questions.
This just in from Tennessee:
The state is now looking for an expert on open records.
The budget that goes into effect in July includes $100,000 to hire an open records ombudsman, someone to help regular people get documents that are available under the state's Public Records Act.
Gov. Phil Bredesen first proposed creating the job more than a year ago to "level the playing field in allowing people who don't have access to expensive lawyers or don't have a lot of sophistication about the process of how you get that open record."
Money in the budget to create the position survived a
But the money was included in the final version of the budget, so now the state comptroller's office is drafting a job description and determining which qualifications will be considered necessary.
The Public Records Act says all state, county and municipal records are to be available for inspection by anyone _ unless the record is specifically exempt.
There are hundreds of exemptions in the law, including medical records, sensitive military documents and investigative records of the
Bredesen said he will push for quickly getting the ombudsman job up and running.
"It's something that I committed to members of the press that I would do," he said. "I think it's a good idea and we will get that moving along."
Wednesday, June 13, 2007
Tuesday, June 12, 2007
A state House commission on Tuesday unanimously recommended widening Pennsylvania's Right-to-Know Law to make most government records, beyond a list of exceptions, available for public inspection.
Pennsylvania law currently defines just two categories of government records as public, making it among the weakest access laws in the country.
"I'm pretty impressed," said Common Cause of Pennsylvania executive director Barry Kauffman after the vote by the Speaker's Legislative Reform Commission. "They've made a very clear statement that we need to make major strides in opening government records to the public."
A proposal to extend the Right-to-Know Law to the Legislature, which is currently exempt, also was unanimously endorsed, although an exception was carved out for "constituent casework" and documents or records related to meetings that do not have to be held in public.
Changing the underlying premise of the law to establish that records are presumed open, not closed — what public-access advocates call the "flip of presumption" — has the support of Democratic Gov. Ed Rendell and Senate Majority Leader Dominic Pileggi, R-Delaware, sponsor of a bill to amend the Right-to-Know Law.
The next question may be which records will be exempt from the law, such as police investigative materials or people's medical records. The reform commission unanimously recommended that the House begin developing such a list from exceptions found in Rendell's records-law proposal and in a bill sponsored by Rep. Tim Mahoney, D-Fayette.
Monday, June 11, 2007
Among many interesting points, Dan mentions that he is becoming a professor at American University's Washington College of Law and executive director of a new Center on Government Secrecy being established there next month. This is great news!
Saturday, June 09, 2007
In April 1971, CIA officer John Seabury Thomson paddled his aluminum canoe across the Potomac on his daily commute from his home in Maryland to CIA headquarters in Langley. When he reached the Virginia shore, he noticed a milky substance clouding the waters around Pulp Run. A fierce environmentalist, Thomson traced the pollution to its source: his employer. The murky white discharge was a chemical mash, the residue of thousands of liquefied secrets that the agency had been quietly disposing of in his beloved river. He single-handedly brought the practice to a halt.
Nearly four decades later, though, that trickle of secrets would be a tsunami that would capsize Thomson's small craft. Today the nation's obsession with secrecy is redefining public and private institutions and taking a toll on the lives of ordinary citizens. Excessive secrecy is at the root of multiple scandals -- the phantom weapons of mass destruction, the collapse of Enron, the tragedies traced to Firestone tires and the arthritis drug Vioxx, and more. In this self-proclaimed "Information Age," our country is on the brink of becoming a secretocracy, a place where the right to know is being replaced by the need to know.
For the past six years, I've been exploring the resurgent culture of secrecy. What I've found is a confluence of causes behind it, among them the chill wrought by 9/11, industry deregulation, the long dominance of a single political party, fear of litigation and liability and the threat of the Internet. But perhaps most alarming to me was the public's increasing tolerance of secrecy. Without timely information, citizens are reduced to mere residents, and representative government atrophies into a representational image of democracy as illusory as a hologram.
I've just begin reading the book, and it's a nice summation of what we've all been screaming about. A much-needed work.
A government records dispute is heating up between Gov. Jon S. Corzine and New Jersey Republicans over e-mails that could shed light on his relationship with an ex-girlfriend to whom he gave millions of dollars in gifts.
The case raises a legal question that state open record laws generally do not have exact answers for: Are elected officials' e-mails open for public scrutiny like many other records?
In New Jersey, it's a debate likely to be decided in court. State Republicans are challenging Corzine's contention that some of his e-mails are private. They think his communications with ex-girlfriend Carla Katz, a powerful state labor leader, might back their contention that it's unethical for a governor to haggle over state worker contracts with a past lover whom he reportedly gave millions in gifts after they broke up.
The next step in the legal process comes Aug. 3, when Corzine is due in court to explain why the e-mails should not be public.
The idea of getting access to an official's e-mail is tantalizing because by its nature it holds potential for a scandal to be revealed. E-mail is, after all, a form where people are often unusually candid, where standard punctuation, grammar and capitalization can b 4gotten, where typing in capital letters IMPLIES URGENCY and where this :-) is a way to say you're happy.
This one will wind up in court...
Allen County officials are setting a dangerous precedent by allowing a third-party vendor to profit by charging for public information that was previously available for free on the county’s Web site.
As Amanda Iacone’s Thursday story explained, Allen County Treasurer Bob Lee – without input from the public or, apparently, many other county officials who deal with property records – contracted with a vendor to host a property tax records database. The database allows citizens to look up their property tax bill – and those of any other county property owner – and pay the bill online.
The process allowed the treasurer’s office to contract out the timely and costly process of collecting credit card payments. But the contract also permitted the vendor to set a limit preventing any single person or entity from looking up more than 15 bills without cost. After fielding complaints – and calls to the treasurer’s office seeking information that was previously online – the limit was raised to 30.
Yes, it’s true that many of the entities seeking more than 30 records are likely mortgage, title or other commercial firms wanting the land information for business reasons. But they have as much right to public information as any citizens. And homeowners might want to compare their property tax bills with everyone else in their neighborhood or subdivision. Because all of these records are public, people are free to examine them by going to the treasurer’s office and asking to see each and every record. The treasurer’s office must comply.
This is a privatization scheme worth keeping a close eye on...
Wednesday, June 06, 2007
“Senator Secrecy” was quickly outed by the Society of Professional Journalists for his anonymous “hold” on the OPEN Government bill, but the senator, Jon Kyl, R-AZ, continues to block the FOIA reform legislation.
The hold served to keep the sponsors from fast-tracking the legislation and getting it to the floor before Memorial Day. Now it will work to make it more difficult to get jealously-guarded time scheduled for floor action.
We’re confident the bill will pass if it gets to the floor. But first the Senate leadership needs to let it be debated and go to a vote. The key to that may be getting more bi-partisan sponsorshipin the next week or two. That would put pressure on the Republican leadership to set aside Kyl’s objections, forcing him to raise his objections in floor debate.
Sen. Kyl is championing the Justice Department’s opposition to the FOIA bill, and in particular Section 4, dealing with the recovery of legal fees for those who get requested records only after suing. He also opposed Section 6, which creates a penalty for agencies who fail to meet the 20-day response deadline, but the primary sponsor, Sen. Patrick Leahy, D-VT, appears to have resolved that through a manager’s amendment which adopts the lesser penalty provisions of the House bill, which passed by a 308-117 vote.
Section 4 is a critical provision in the bill for public advocacy groups and journalists.
I’ve attached a analysis of the key sections of the bill reflecting the importance of this legislation to open government.
Continued reporting, commentary and editorials on this can make a difference. July 4 will be the 41st anniversary of the signing of the Freedom of Information Act, and will mark the 40th year since it went into effect.
Monday, June 04, 2007
Please call Senators Reid and McConnell and tell them this month is the time for this bi-partisan good government bill to come to the floor for a vote.
Sen. Reid 202 224 5556
Sen. McConnell 202 224 3135