FOI Reform Under Way in Iowa, Too...

DES MOINES -- A group of Iowa lawmakers is set to review the state's open records and open meetings laws after a string of accusations that Iowa government entities are violating those laws...

"The public has a right to know what their government is doing and how we're spending their money," Jochum said.

Rep. Vicki Lensing, D-Iowa City, is co-chairing a special legislative committee that will meet Sept. 6 to review the laws.

She notes that other forms of communication, including text messages and e-mails, didn't exist when Iowa's open records laws were written decades ago.

"As time has gone on, we have put Band-Aids on it, and I think it's just to the point now we need to look at the whole thing," Lensing said.

Kathleen Richardson, executive secretary of the Iowa Freedom of Information Council, said the group has identified continuing problems in Iowa.

Those problems include what she believes is the increasing secrecy surrounding the hiring of public employees, as government entities keep the names of candidates private and hold interviews behind closed doors...

More here....

Washington Gov Denies Access to...well...you just can't make this stuff up

From the Department of Unintentional Irony:

Gov. Chris Gregoire has refused to reveal the identities of some people who weren't picked for seats on the state's new "Sunshine Committee."

Gregoire, responding to an Associated Press public records request, has kept secret several resumes, letters and e-mail exchanges from unsuccessful applicants to the committee.

In her reply, the Democratic governor cited an exemption to public records law that says applications for public employment can be kept secret.

Open government experts scoffed at that reasoning, pointing out that compensation for Sunshine Committee service is limited to travel reimbursements that several members don't actually qualify for.

"That doesn't make them employees of the state," said Toby Nixon, acting president of the Washington Coalition for Open Government and a former state legislator.

"I don't think what the governor is doing in terms of withholding these documents, claiming they are applications for employment, is right at all," Nixon said. "And I think that the word ironic is a very good word."

But Melynda Campbell, a legal assistant in Gregoire's legal office, said the administration considers every person appointed to a board or commission by the governor to be a public employee under the Public Records Act exemption.

Under that reasoning, Campbell said, people who ask that they be appointed to a panel such as the Sunshine Committee must have their identities kept secret.

More here.

Well, if the idea is to illustrate the need for someone to form a committee to study the sunshine laws, my hat's off to 'em.

CD

The Doctor Is In...

This is a most interesting development unlocking millions of records...the good doctors, of course, assert that the data don't tell a complete picture, but what picture do we have now? None.

Whether it's a hernia repair or heart bypass, doctors with a lot of experience performing a given operation tend to have better results. The problem for patients in choosing a physician has been finding out which ones have the know-how.

Now a court ruling appears to open the way for consumer access to such information for the first time, potentially transforming the relationship between doctors and patients, as well as the business of healthcare.

In a little-noticed decision last week, a federal judge in Washington, D.C., ruled in favor of a consumer group that sued the Health and Human Services Department to allow disclosure of specific data about doctors from the Medicare claims database.

U.S. District Judge Emmet G. Sullivan concluded that releasing the data would be "a significant public benefit," and ordered the department to turn it over by Sept. 21.

With information on more than 40 million patients and 700,000 doctors, the Medicare database is far richer than any private insurer's. Though it does not have information on some doctors, such as pediatricians, who don't treat Medicare patients, it is considered the mother lode for data on those who treat adults, because Medicare recipients are a mainstay of most practices.

More here.

White House Says Office of Administration Not FOIA-able...

I'd like to hear your thoughts on this line of argumentation...

The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of e-mails missing from White House servers.

The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.

Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit in May seeking Office of Administration records about the missing e-mails, including when they were deleted from government computer files. CREW said it understood that internal White House documents had estimated at least 5 million e-mails were missing from March 2003 to October 2005.

Perhaps the most interesting graf of the story:

Much of the White House, including the offices of President Bush and Vice President Cheney, is not subject to FOIA, which allows the media and the public to demand disclosure of federal public records. But the Office of Administration, which was formed in 1977 and handles various administrative and technology duties, responded to 65 FOIA requests last year and even has its own FOIA officer, records show.

More here.

FOI At Work...

An excellent column on the secrecy plaguing schools, and parents fighting back...

For a long time, Dawn Mosisa had trouble forgiving herself for the way she shrugged off her daughter's story about the teacher who hit one of her second grade classmates in the spring of 2003. Her daughter said the man ordered the class to count to 10 in French while he hit the boy 10 times with a ruler.

The girl was not in the habit of making up such stories, the mother said, but like most parents, Mosisa did not want to think that any educator would be so cruel, so she chose not to believe it. When the teacher left the school the next year, Mosisa grew more concerned. But she said she could not get anyone at Maryvale Elementary School in Rockville to explain to her or her child exactly what had occurred and how they should respond.

Abuse of a student at school is a parent's nightmare. Not only do such incidents harm the victims and their parents, but they also trouble the children who may have witnessed the event and their parents. Such cases usually remain undisclosed because parents do not want their children embarrassed or disturbed by public knowledge of what happened. But Mosisa, 44, a student financial services official for a public university, has given an unusually detailed account that sheds light on a rarely examined side of public education.

The instinct of school administrators to keep parents ignorant of allegedly unpleasant or controversial behavior by teachers is backed by state regulations, union rules and fear of lawsuits. The administrators who refuse to answer parental questions say there is nothing they can do. But the anger felt by parents like Mosisa is often not eased by the recognition that the administrators would like to tell them more, but are not allowed to.

Exactly what Mosisa's daughter witnessed at Maryvale Elementary remains unclear because the school's and the teacher's versions of events are unavailable. That is precisely why parents at Maryvale, and at other schools that suffer such episodes, are so upset with the way the system ignores their pleas for information. There appear to be no significant efforts to rewrite the regulations to allow them to know what happened to their children. Many parents say they think such efforts would be doomed by prevailing legal practices, so they instead try to forget about what happened and move on.

More here.

A Huge Victory In Illinois...

The employment contracts of public employees, even if they are contained within a personnel file, are public records under Illinois' Freedom of Information Act, Illinois' 4th District Appellate Court has ruled.

A panel of three judges ruled unanimously that the Anna Gazette Democrat had a right under the FOIA law to see the employment contracts of Southern Illinois University President Glen Poshard, former SIU president James Walker and SIU employees John Jackson and Mike Lawrence.

The decision, written by Justice Robert Steigmann, reversed a ruling by Sangamon County Circuit Judge Leo Zappa.

While there is an exemption for personnel files and information that would be an invasion of privacy, the appellate court said, another portion of the law is more important in this case.

That section says, "The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

"Liberally construing the FOIA in accord with its intended purpose, we conclude that the statutory definition of 'public records' includes the information contained in the employment contracts at issue," Steigmann wrote.

"Contrary to defendants' (SIU) suggestion, the mere fact that personnel files are per se exempt from disclosure ... does not mean that the individual contracts are also per se exempt simply because they are kept in those files."

More here.

How Much Fun Is THIS?????

The folks in Pennsylvania just keep getting better at this FOI stuff! Now they have cooked up a contest....

To illustrate the problems Pennsylvania’s journalists and citizens face in obtaining public records, the Pennsylvania Newspaper Association, together with its open records reform blog, passopenrecords.org, is holding the first-ever PA Open Records Challenge.

In the competition that begins in mid-August, participants will be asked to attempt to obtain a document, such as a school superintendent’s contract or the amount of legal fees spent by their town in 2006, using an open records request.

“Many Pennsylvanians aren’t sure how to file an open records request with their local or state government. Too often, they only find out how difficult the process is when they badly need information, and unfortunately, there’s a steep learning curve,” said Tim Williams, president of the Pennsylvania Newspaper Association. “We hope that the PA Open Records Challenge will draw attention to the process while making citizens aware of just how critically our state needs to reform its open records law.”

Winners will be selected from the completed, correct entries submitted to the challenge, which ends October 5. Grand Prize Winners (2) will receive a one-year subscription to their local newspaper. Ten (10) additional winners will receive Pennsylvania Newspaper Association First Amendment boxes.

Participants are asked to share their stories about their requests for information on the blog. For a contest worksheet and to view the contest rules, visit www.passopenrecords.org.

“Reforming Pennsylvania’s antiquated open records law has been in the works for years but historically many public officials resisted meaningful change,” said Jamie Blaine, editor of passopenrecords.org. “But voters have put lawmakers on notice that they want a more transparent and accountable government.”


Much more here.

Nice use of FOI....

The AP used FOIA to grab a copy of Donald Rumsfeld's resignation letter, and found scarcely a mention of the "I" word....

The word "Iraq" doesn't appear in former Defense Secretary Donald Rumsfeld's resignation letter. Neither does the word "war." In fact, the deadly and much-criticized conflict that eventually drummed him out of office, comes up only in vague references, such as "a critical time in our history" and "challenging time for our country," in the four-paragraph, 148-word letter he wrote to President Bush a day before the Nov. 7, 2006 election.

According to a stamp on the letter, Bush's office acknowledged receipt the next day, as voters were going to the polls. Bush announced Rumsfeld's departure a day later, after the massive anti-war vote that swept Democrats into control of the House and Senate.

The elusive letter — which the Pentagon denied existed as recently as April — surfaced this week in response to multiple Freedom of Information Act requests by The Associated Press.

More here...

ABA ScrapsCriminal Records Proposal

Good news on the ABA front today, as the group backed down on its well-intentioned but really bad idea: to the proposal, said limiting public access to records would violate the First Amendment and make it harder to expose misconduct by police and prosecutors.

"We've always said that if discrimination is the problem, then directly address the problem, don't try to hide reality or hide the historical record," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The proposal urges governments to seal files immediately in cases of people who were arrested but never convicted of crimes, or whose convictions were later set aside. The records of those convicted of misdemeanors and felonies should be closed after some undefined period of law-abiding conduct, the measure says. Violent crimes, large-scale drug trafficking and similarly grave offenses would not be included.

More here.

FEMA Reverses Itself, Wisely

The government said that it will release, to the News-Press and two other Gannett-owned newspapers, public records on Florida disaster grant payments beginning Aug. 17.

This reverses an earlier statement that The News-Press and the two other Florida papers would have to wait on another court ruling before receiving the addresses of the 660,000 households that received $1.2 billion from the Federal Emergency Management Agency after the 2004 hurricane season.

Complying with an 11th Circuit Court of Appeals decision, FEMA said Monday that the agency would release the public records to the Sun-Sentinel, which had also sued for the records. But it was denying the Gannett papers the same access. That changed Wednesday. The information is coming in two batches because the data files are huge, said spokesman Aaron Walker.

More here...

New CJOG Report Out

NEW CJOG REPORT DETAILS FOIA WOES: A new analysis from the Coalition of Journalists for Open Government documents the steady erosion of federal FOIA. The report notes “current government handling of FOIA requests is deteriorating” across the government agencies. Some highlights:

-- Two of every five FOIA requests filed in 2006 were not processed.

-- Number of exemptions cited to support the withholding of information has increased 83% since 1998.

-- The number of FOIA denials increased 10% in 2006.

-- Cost of processing FOIA requests is up 40 percent since 1998, even though agencies are processing 20 percent fewer requests.

-- “Most people are waiting longer” for FOIA information.

Additionally, the report notes that the DOJ is “consistently granted the lowest percentage of [FOIA] appeals of any agency — only 4% in 2006.” The DOJ’s “rate of grant-making is down 70%” than that of President Clinton.

For a full copy of the report, head to CJOG.

Quote of the Week...

House Majority Leader Steny H. Hoyer (MD) released the following statement this afternoon in response to the President’s remarks on the economy:

“Receiving a lecture on fiscal responsibility from President Bush is a little bit like getting a lecture on the Freedom of Information Act from the Vice President. That is, it strains credulity."

Hee, hee.....

CD

The Latest from PA FOI Reform...

This Philadelphia Inquirer editorial gives us a nice update:

Legislators in Harrisburg can take an important step tomorrow to strengthen Pennsylvania's open-records law, one of the weakest in the nation.

A state House panel will review a bill that would give residents more clout when seeking information on everything from zoning decisions to expense reports of public officials.

Current state law has the issue backwards. It places the burden on citizens to prove why any government record should be open for public inspection.

A bill from Rep. Tim Mahoney (D., Fayette) would shift the burden onto state and local agencies to explain why certain records should be kept secret.

The measure contains other important features. It would cover the legislature, which is currently exempt. It would create an independent office to handle requests for state records and appeals of denials. It would increase the fines for willful violations from $300 to $1,000.

House Majority Leader Bill DeWeese (D., Greene) and Senate Majority Leader Dominic Pileggi (R., Delaware) say strengthening the open-records law is a priority.

But there is ample skepticism about how much openness lawmakers really want. Just last month, legislative leaders refused to disclose how $360 million in the legislators' "walking-around money" slush fund was being spent in their home districts....

More here

FEMA: Alice in Wonderland Moment 10,001

So FEMA is spending a million bucks...telling people that public information about them will be -- drum roll please -- public.

The government will spend $1.1 million to notify 2.2 million disaster aid recipients that they will be releasing their addresses to the media but are using a legal loophole to further delay giving those addresses to three Florida newspapers and their readers.

The Federal Emergency Management Agency, FEMA, said Monday that it would release the information on disaster aid recipients from 1998 to 2004 to the South Florida Sun-Sentinel as instructed by the 11th Circuit Court of Appeals.

But the agency said it would wait on another court ruling before releasing it to The News-Press, Pensacola News-Journal and Florida Today, the Gannett newspapers and lead plaintiffs in a lawsuit seeking more information about how they distributed more $1.2 billion in disaster aid during the 2004 hurricane season.

The agency also said opening the records is in response to the lawsuit, does not signal a change in policy, and will only apply to the disasters covered in the lawsuit not subsequent disasters.

Because the Gannett and Tribune cases were separately filed, FEMA said that it would wait for the Middle District Court to issue a new order before releasing the information to The News-Press. They must begin to release the information to the Sun-Sentinel on Aug. 28 and roll it out over the next 90 days.

FEMA's tactics provoked the ire of First Amendment advocate Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press.

"It's ludicrous," said Dalglish of FEMA's decisions to delay the release, notify the recipients, and especially, not to see this as a precedent.

Read more here, if you can stand it.

More on FOIA reform passing out of the Senate...

The newspapers have been remarkably -- and disturbingly -- quiet on a landmark event in FOI...

Secrecy News has the Congressional Record text here...

And, with apologies for the lengthy post, here is the official Judiciary Committe release:

WASHINGTON (Monday, August 6) – The U.S. Senate passed sweeping bipartisan legislation Friday that will streamline and increase government transparency. The OPEN Government Act of 2007 (S. 849), introduced by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas), a member of the panel, passed late Friday night by unanimous consent.

“For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information,” said Leahy, a long time leader on FOIA legislation and government transparency. “The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.”

The OPEN Government Act – the first major strengthening of FOIA in more than a decade – is expected to pass the House when Congress returns to session this September, and the President is expected to sign the bill.


Below is Sen. Leahy’s statement on the passage of the OPEN Government bill. Background summaries on the Kyl-Leahy Amendment and the Cornyn-Leahy Bill follow.
* * * * *
Contact: Tracy Schmaler, 202-224-2154

Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
The OPEN Government Act
Senate Proceedings
August 3, 2007

Mr. President, I am pleased that the Senate has passed the Leahy-Cornyn Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”), S.849, before adjourning for the August recess. This important Freedom of Information Act legislation will strengthen and reinvigorate FOIA for all Americans.

For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information. The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.

I commend the bill’s chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. Since he joined the Senate five years ago, Senator Cornyn and I have worked closely together on the Judiciary Committee to ensure that FOIA and other open government laws are preserved for future generations. The passage of the OPEN Government Act is a fitting tribute to our bipartisan partnership and to openness, transparency and accountability in our government.

I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl and Senator Bennett in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform this legislation before the August recess.

But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people’s right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation.

The First FOIA Reforms in More Than a Decade

As the first major reform to FOIA in more than a decade, the OPEN Government Act will help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public’s trust in their government. This bill will also improve transparency in the Federal Government’s FOIA process by:

Restoring meaningful deadlines for agency action under FOIA;
Imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;
Clarifying that FOIA applies to government records held by outside private contractors;
Establishing a FOIA hotline service for all federal agencies; and
Creating a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.

Specifically, the OPEN Government Act will protect the public’s right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA. The bill ensures that federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees. In addition, the bill also clarifies that the definition of news media, for purposes of FOIA fee waivers, includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication.

The bill also restores meaningful deadlines for agency action, by ensuring that the 20-day statutory clock under FOIA starts when a request is received by the appropriate component of the agency and requiring that agency FOIA offices get FOIA requests to the appropriate agency component within 10 days of the receipt of such requests. The bill allows federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20-day time limit, the bill prohibits an agency from collecting search fees if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute.

The bill also addresses a relatively new concern that, under current law, federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision that is favorable to a FOIA requestor. The Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001), eliminated the “catalyst theory” for attorneys’ fees recovery under certain federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys’ fees when he or she files a lawsuit to obtain records from the government and the government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial.

To address concerns about the growing costs of FOIA litigation, the bill also creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes. In addition the bill ensures that each federal agency will appoint a Chief FOIA Officer, who will monitor the agency’s compliance with FOIA requests, and a FOIA Public Liaison who will be available to FOIA to resolve FOIA related disputes.

Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. The bill creates a tracking system for FOIA requests to assist members of the public and the media. Tracking numbers are not required for FOIA requests that are anticipated to take ten days or less to process. The bill also establishes a FOIA hotline service for all federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests.

In addition, the bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. And, to create more transparency about the use of statutory exemptions under FOIA, the bill ensures that FOIA statutory exemptions that are included in legislation enacted after the passage of this bill clearly cite the FOIA statute and clearly state the intent to be exempt from FOIA.

OPEN Government is an American Value

The Freedom of Information Act is critical to ensuring that all American citizens can access information about the workings of their government. But, after four decades this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated so that it works more effectively for the American people.

I am also please that, by passing this important reform legislation today, the Senate has reaffirmed the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I commend all of my Senate colleagues, on both sides of the aisle, for unanimously passing this historic FOIA reform measure. I hope that the House of Representatives, which overwhelmingly passed a similar measure earlier this year, will promptly take up and pass this bill and that the President will then promptly sign it into law.

# # # # #

kyl-leahy amendment
to leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

§ 3 – DEFINITION OF NEWS MEDIA
“Representative of the news media” is defined broadly enough to encompass all members of the old and new media. It includes anyone who gathers information of “potential interest to a segment of the public,” uses an editorial process and disseminates their product to an audience of any size. It states explicitly that as methods of news delivery evolves, alternative media shall be encompassed. This provision ensures that blogs and other Web-based forms of media are covered by the bill.

§ 4 – ATTORNEYS’ FEES
· A requester can obtain attorneys’ fees when he or she files a lawsuit to obtain records from the government and the government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial.

§ 6(a) – 20-DAY TIME LIMIT AND TOLLING
· The 20-day period that agencies have to respond to FOIA requests is changed to commence when the request is received by the appropriate component of the agency. If a FOIA request is received by a different component of the agency that handles FOIA requests, the agency has 10 days to deliver the request to the appropriate agency component before the 20-day clock starts to run.
· Allows federal agencies to toll the 20-day clock while awaiting a response to a request for information from a FOIA requester on one occasion reasonable, or while awaiting clarification regarding a fee assessment.

§ 6(b) – COMPLIANCE WITH TIME LIMITS
· Changes the penalty for non-compliance with the 20-day time limit from the loss of the agency’s ability to claim an exemption under FOIA to a waiver of search fees.

§ 7(a) – STATUS OF REQUESTS
· Clarifies that tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process.

§ 8 – CLEAR STATEMENT FOR EXEMPTIONS
· Ensures that FOIA statutory exemptions enacted after the passage of this bill clearly cite the FOIA statute and state the intent to exempt the legislation from FOIA.

§ 10 – PRIVATE RECORDS MANAGEMENT
· Clarifies that FOIA applies to government records maintained by government contractors who have been contracted to store and manage data for federal agencies or departments.

§ 11 – OFFICE OF GOVERNMENT INFORMATION SERVICES/OMBUDSMAN
· Creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes
· Ensures that each federal agency shall appoint:
1. A Chief FOIA Officer who will monitor the agency’s compliance with FOIA requests, and ensure that they are responded to quickly and efficiently.
2. A FOIA Public Liaison who will be available to FOIA to resolve FOIA related disputes.

§ 12 – CRITICAL INFRASTRUCTURE INFORMATION
· Strikes the Critical Infrastructure Information reporting requirements from the bill.

* * * * * *



Leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

Led by U.S. Senators Patrick Leahy and John Cornyn , the OPEN Government Act of 2007 is a bipartisan effort to achieve meaningful reforms to federal government information laws – including, most notably, the Freedom of Information Act of 1966 (“FOIA”). The legislation would substantially enhance and expand the accessibility, accountability, and openness of the federal government. It has been nearly a decade since Congress has approved major reforms to FOIA.

This legislation is the culmination of extensive discussions between the offices of Senators Leahy and Cornyn and various members of the requestor community. The bill is supported by a broad coalition of organizations across the ideological spectrum, including:


American Association of Law Libraries
American Civil Liberties Union
American Library Association
American Society of Newspaper Editors
Associated Press Managing Editors
Association of Health Care Journalists
Center for Democracy & Technology
Coalition of Journalists for Open Government
Committee of Concerned Journalists
Education Writers Association
Electronic Privacy Information Center
Federation of American Scientists/Project on Government Secrecy
Free Congress Foundation/Center for Privacy & Technology Policy
Freedom of Information Center, University of Missouri


The Freedom of Information Foundation of Texas
The Heritage Foundation/Center for Media and Public Policy
Information Trust
National Conference of Editorial Writers
National Freedom of Information Coalition
National Newspaper Association
National Security Archive/George Washington University
Newspaper Association of America
People for the American Way
Project on Government Oversight
Radio-Television News Directors Association
The Reporters Committee for Freedom of the Press
Society of Environmental Journalists
Vermont Coalition for Open Government
Vermont Press Association


The bill contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know. The bill also contains over a dozen substantive provisions, designed to achieve the following four objectives:

(1) Strengthen FOIA and close loopholes.
(2) Help FOIA requestors obtain timely responses to their requests.
(3) Ensure that agencies have strong incentives to act on FOIA requests in a timely fashion.
(4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.


STRENGTHEN FOIA AND CLOSE LOOPHOLES

· Ensure that FOIA applies when agency recordkeeping functions are outsourced.
· Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation.
· Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information.
· Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association – including bloggers and other Internet-based journalists.
· Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests.

HELP FOIA REQUESTORS OBTAIN TIMELY RESPONSES

· Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests.
· Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation.
· Restore the catalyst theory for the recovery of attorney fees when litigation is inevitable.

ENSURE THAT AGENCIES HAVE STRONG INCENTIVES
TO ACT ON FOIA REQUESTS IN TIMELY FASHION

· Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request.
· Impose real consequences on federal agencies for missing statutory deadlines.
· Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.
· Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations.

PROVIDE FOIA OFFICIALS WITH THE TOOLS THEY NEED
TO ENSURE THAT OUR GOVERNMENT REMAINS OPEN AND ACCESSIBLE

· Improve personnel policies for FOIA officials to enhance agency FOIA performance.
· Examine the need for FOIA awareness training for federal employees.
· Determine appropriate funding levels needed to ensure agency FOIA compliance.

News of the FOIA deal...

The news is good, thus far....

A behind-the-scenes agreement reached Friday night clears the way for swift passage of a bill that strengthens the Freedom of Information Act for the first time in a decade.

The legislation, introduced by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, was placed on “the hot line,” a term used for a bundle of bills that are expected to pass without objection just before lawmakers depart for the August recess.

The measure had been held up by a “secret hold,” a parliamentary maneuver invoked by Sen. Jon Kyl, R-Ariz., despite widespread support from conservative and liberal open-government groups.

Chief among Kyl’s concerns was a provision that eliminates exemptions for disclosing government records if an agency fails to meet the 20-day statutory deadline set in the law. He was concerned that the provision would inadvertently release sensitive information about national security. He also was concerned that the bill would cost the government too much because one provision would require federal agencies to pay for court fees when a requester wins a court fight over releasing records.

More...

FEMA Still Dragging Feet on Records...

From the FEMA case in Florida comes news of government delay, even in the face of a judicial order...

Time is running out for the federal government to appeal a court ruling that requires the release of records detailing money sent to Florida households following the 2004 hurricane season.

As of 5 p.m. Thursday, the Federal Emergency Management Agency had yet to petition the U.S. 11th Circuit Court of Appeals, which ruled June 22 that FEMA officials must release the addresses of the 600,000 state households that received $1.2 billion.

FEMA officials have until the end of the day Monday to decide what they will do. They refused to comment Thursday.

The court ruling is the result of a lawsuit that The News-Press, Pensacola News Journal and Florida Today newspapers — all owned by Gannett Co. Inc. — filed against FEMA more than two years ago, seeking the names and addresses of households that received money.

The judges said providing the addresses will show whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country.

"We cannot find any privacy interests here that even begin to outweigh this public interest," the court opinion read in part.

Kate Marymont, vice president/news of The News-Press, stands strong about Gannett's effort to protect the public's right to know.

"I believed from the day we first asked for these records that this is information that belongs to those citizens," Marymont said. "A federal court has said those records should be public. It's up to FEMA now if they're going to prolong and continue an expensive fight to keep these records from the public."


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Tennessee Gov Sounds Good on FOI Ombudsman

Attaboy, Frank Gibson!

Gov. Phil Bredesen on Tuesday said he disagrees with a proposal by Comptroller John Morgan to split the responsibilities of a newly created open records ombudsman among several people in his office.

Morgan told an open government study panel that the best way to use the $100,000 appropriated for the ombudsman was to hire one non-attorney and to farm out more complex records questions to his existing legal staff.

"We see this as really a role and a function that won't necessarily be one position," Morgan said. "If somebody looks for the ombudsman, what they'll see......is the Office of the Comptroller _ and us fulfilling that role as a facilitator of access to records."

The Legislature, which elects the comptroller, included money in the budget to create an ombudsman to help citizens gain access to public records without having to go through the courts.

"What we don't want to do it get this so wrapped up in the identity of one person that when that person goes on vacation that there's nobody to call," Morgan said.

Bredesen said the first he had heard of Morgan's proposal was when asked about it by The Associated Press later on Tuesday. He said he would encourage a different approach.

"I think itrequires the focus of a relatively senior person and would certainly urge that on him," he said. "My gut feeling is a single senior person is a better direction."

Bredesen, who first proposed creating the ombudsman, also disagreed with Morgan's view that the money appropriated for the position wouldn't be enough to cover the salary, benefits, travel and other expenses.

"Then we should have appropriated more," Bredesen said. "But if the cost is a problem, I will find him some additional money."

Morgan told the panel he plans to advertise within two months for a new staffer who would help field inquires about access to public records. More complexlegal questions would be handled by an attorney on staff and in consultation with the Attorney General's office. A toll-free number would be established for the ombudsman staff, he said.

Morgan said he wants to ensure open records advice be based only on existing law.

"We'll try very hard not to get drawn into the political discussion or the policy debate about what the government is doing," he said.

Morgan added that there are also concerns that the ombudsman's decisions won't be legally binding, or that local officials would be free from liability if they follow rulings that turn out to be wrong.

Frank Gibson, executive director ofthe Tennessee Coalition for Open Government, said the liability question is already settled by current law that prevents officials from being held criminally or civilly liable for any documents they release.

Gibson said the ombudsman's role will be to help resolve "sometimes silly disputes over information."

By clarifying existing laws and legal precedents, the ombudsman will serve as "somebody in authority that can tell a public official: 'That's a public record. Release it,'" he said. "Or somebody who can tell a citizen that, 'I'm sorry, the Legislature says that that's not a public record."

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