Editor's Note

The FOI Advocate is a compendium of ideas, edited story excerpts and other materials from a variety of Web sites, as well as original concepts and analysis. When the information comes directly from another source, it will be attributed and a link will be provided whenever possible. The blog relies on the accuracy and integrity of the original sources cited. We will correct errors and inaccuracies when we become aware of them.

Monday, March 31, 2008

Arizona Proposal To Establish Open Disciplinary Records

House Bill 2159, sponsored by Rep. Kirk Adams (R-Mesa), would require public entities to maintain "records that are reasonably necessary or appropriate" to track disciplinary actions of public officers or public employees, including employee responses to the disciplinary actions.

The records would become subject to the Arizona Public Records Law and open for public inspection "unless inspection or disclosure of the records or information in the records is specifically prohibited pursuant to law."

While the bill arose from a desire to create transparency in the operations of Child Protective Services, it would affect all public entities, including state universities.

"In a perfect world, this bill should not be necessary," said attorney David Bodney, a partner with Steptoe & Johnson LLP who helped draft the bill. "The Arizona Public Records Law does not exempt disciplinary records from the public inspection.

More here.

Tennesseean Piece Looks at State's Exemptions

A nice analysis of Tennessee's FOI laws features lots of NFOIC sources!

f you want to know everything about the parolee who just moved into your neighborhood or whether the judge hearing your divorce case has been accused of being mentally impaired, you can't — not in Tennessee.

Since Tennessee declared government records open to the public in 1957, lawmakers and judges have spent the last 50 years closing some of those records.

Today, there are more than 250 exemptions to the Tennessee Public Records Act.

Advocates of open government insist it should not be so simple to close public records in Tennessee and they contend that the exemptions are written too broadly, resulting in unnecessary government secrecy.

Now, this year, a bill making its way through the legislature proposes to close records identifying Tennesseans licensed to carry handguns.

"Any special interest who has a friend in the legislature can get records closed fairly easily," said Frank Gibson, executive director for the Tennessee Coalition for Open Government. "It's a slippery slope — you close one piece of information on a file, and then two years later you close something else.''

More here.

Saturday, March 29, 2008

OKlahoma Judicial Access Update

Thanks to a reader for this update:

The Oklahoma Supreme Court has withdrawn its order restricting public access to court records.

The decision Tuesday came after complaints from lawyers, free-speech advocates, law enforcement, court clerks, journalists and companies that perform background checks that the restrictions, intended to prevent identity theft, were too far reaching.

The new rules, which were to take effect June 10, would have required removal of personal information such as Social Security numbers, birth dates, addresses, and other data from court filings. The rules also would have prohibited the posting of court pleadings on the Internet.

The Supreme Court, in a brief statement from the office of Chief Justice James R. Winchester, said it was withdrawing the order to allow time for further study and consideration of the issue.

From the UK, An FOI Champion: Q&A With Heather Brooke

The Guardian features one of my favorite UK FOI friends. Keep up the great work, Heather!

We've heard about the John Lewis list of televisions MPs can buy for their second homes, the fish tanks they can fill thanks to taxpayers' money and the fact that they don't need to supply proof of any expenses under £250.

We haven't yet heard, however, the full details of expense claims for second homes made by Gordon Brown, David Cameron and other individual MPs. We should have been able to open a Pandora's box of receipts that some believe would expose the petty fiddling practised by our democratically-elected representatives this week. But at the last minute, the Speaker, Michael Martin, announced he would appeal to the high court to keep the box shut forever.

Facing taxpayer-funded lawyers for the Commons in court will be a rather vampy American woman who spends most of her time in the British Library. Heather Brooke apologises for being late for this interview because she ripped her suspender belt running along Piccadilly. With her red lipstick and red painted fingernails, you could imagine the more misogynist MPs harrumphing that she's quite the femme fatale. Which she could be, in a strictly political sense.

More here.

Monday, March 24, 2008

Somebody Has Been Watching Too Much Crime Drama On TV?

The Department of Environmental Protection fears unhinged hunters might use the Freedom of Information Act to track down state conservation officers at home.

The department's safety concerns convinced the legislature's Environment Committee to back legislation blocking the release of the home addresses of conservation officers.

The Freedom of Information Commission opposes the bill, but not because the commission objects to the DEP's request for confidentiality.

Rather, the commission finds the proposed exemption too narrow. It wants to include all public officials and government employees in Connecticut. The only exceptions would be elected officeholders.

More here.

The proposed change would significantly narrow the amount of information available through the FOI Act. It also would depart from the past practice of carving out exceptions case by case.

Friday, March 21, 2008

Oklahoma Supreme Court Opinion A Blow To Access...

I'm needing to get a copy of this opinion, which sounds pretty grim...

Oklahomans' access to court records on the Internet will be limited by rules adopted Tuesday by the Oklahoma Supreme Court.

The court said individual pleadings and other recorded documents filed in state court actions shall not be publicly displayed on the Internet. People wanting to see this information can go to the courthouse and view it.

The court said it issued the rules in order to balance the rights of privacy of individuals who use Oklahoma's court system and public access to court documents. The rules affect operations of the state's district courts.

These rules regarding privacy and public access to court documents will be effective June 10.

The rules also say people filing cases should omit personal identifiers such as Social Security numbers, taxpayer identification numbers, names of minor children, dates of birth, financial account numbers and home addresses.

Omitting these things from documents was called "outrageous overreaching” by Joey Senat, past president of FOI Oklahoma and an Oklahoma State University journalism professor specializing in freedom of information.

More here.

More here, including a great debunking of the identitfy theft FOI issue...

Student Press Law Center Doing Some GREAT Sunshine Week Work...

If you haven't seen it, Sunshine Week is kickin' it this week...

Requesting financial records from a public school district can cause some staff to raise their eyebrows. But obtaining the records is often quite simple, and the information could make an informative high school newspaper story.

The Student Press Law Center called 15 public school districts across America asking for the superintendent's expense reimbursements for the 2006-07 school year. Our test was not designed to be scientific, but we chose school districts located in different areas, to see if there were noticeable differences. The population of these communities ranged from 14,000 to 1.5 million.

We sent formal request letters to all districts except Sioux Falls School District, in South Dakota, which faxed us the information immediately after our phone call.

The records we received by the time this article was printed showed that the size of the school district did not always correlate with their superintendent's reimbursements. Phoenix, with a population of 1.5 million, spent about $3,800 reimbursing its superintendent, while East Baton Rouge Parish School System, with a community population of about 429,000, spent more than $11,000. Sioux Falls spent the least amount at about $300. Laguna Beach spent the most, at $18,500, but $18,000 was for relocation expenses for a new superintendent. Overall, districts spent the most on travel reimbursements, meals and conferences.

Most district representatives, while acting respectful, acted as though this information had never been requested before. The most common questions asked were "What are you using this for?" and "Are you looking for anything in particular?" The answer we gave when asked why we needed the records was "We are doing some research at the office." We wanted to avoid being too specific because all we really wanted to know is if districts would comply.

More here.

See the whole test here.

A Cool New Twist On a Sunshine Week Fave...

The Dallas Morning News gives you what their paper would have looked like without access to information, but in digital form:

Tuesday, March 18, 2008

Iowa Update

As Iowa lawmakers look at revamping and putting teeth into enforcement of the state’s open meetings and open records laws, the case of Riverdale has received plenty of notice.

A rewrite of the laws that would, among other things, create a new state board with powers to rule on violations and impose fines on offending officials, “would go a long way toward stopping the kind of abuse we’ve seen in places like Riverdale,” said state Sen. Mike Connolly, D-Dubuque, a chief sponsor of the new law. The attorney general’s office and county attorneys are now responsible for enforcement.

Riverdale was among a few high-profile cases that prodded plans to revise the state’s open government laws, said Corwin Ritchie, executive director of the Iowa County Attorneys Association. Other cases included the Central Iowa Employment Training Consortium scandal and controversy over the release of information during the process of hiring the president at the University of Iowa.

Alan Kemp, executive director of the Iowa League of Cities, which opposes creation of the proposed board, said a 2006 court ruling in a case that ordered Riverdale to turn over records to citizens and pay their attorney’s fees illustrates that the current enforcement system works.

But, as Iowa and the rest of the nation observe Sunshine Week in honor of laws that protect openness in government, Allen Diercks said lack of enforcement by the attorney general and county attorneys hobbles the ability of residents to know what their elected officials are up to.

“It’s all about the arrogance of government,” said Diercks, a Riverdale resident who has taken the town of 656 to court twice since 2005 over open government disputes. “They try to bully those of us who want to hold them accountable into a corner so we’ll go away. The attorney general or any county attorney who doesn’t want to enforce the law should just resign.”

More here.

FOI AT Work: College Athletics and Academics

A nice piece of work from the Ann Arbor News has generated tremendous conversation in the hallways of athletic departments across the country, I'd guess:

Even as the University of Michigan men's basketball team played Iowa on a Saturday night in mid-January, most eyes in Crisler Arena seemed focused on Section 46, where new Michigan football coach Rich Rodriguez sat near quarterback Terrelle Pryor, the No. 1 high school player in America.

No one paid much attention to the grandfatherly figure who sat three rows behind Pryor.

John Hagen was, as he has been for decades, close to some of the most recognized athletes at Michigan. University records obtained by The News show that the veteran psychology professor has taught at least 294 independent studies from the fall of 2004 to the fall of 2007, and 85 percent of those courses, 251, were with athletes.

Michigan officials said Hagen taught additional independent studies in that period, however, they refused to disclose the number of athletes who were part of that group.

During most of that period since 2004, Hagen had a .25 teaching appointment, meaning one quarter of his time was supposed to be spent in the classroom.

Independent studies traditionally are one-on-one courses arranged between a professor and a student to cover subject matter that isn't available as a university course. In some cases, they involve small groups of students.

Since August 2006, university officials have twice examined whether Hagen's courses meet Michigan's academic standards. They call his independent studies an example of a nationally respected researcher working with undergraduates.

"This is the kind of faculty experience we aspire to provide for all of our students," said Terry McDonald, dean of the College of Literature, Science, and the Arts.

When The News dug further, however, speaking to athletes and former athletic department employees as part of a seven-month investigation that included interviewing 87 people and reviewing more than 3,500 pages of internal documents, a different picture emerged...

More here.

An Important Story Often Overlooked: The Many Other Statutes That Hide Things

Here is a great story from my pal Kirsten Mitchell on an often overlooked issue: the many statutes that work like mini-exemptions in federal law. This is a story that ought to be replicated over and over in state after state!

Government information as wide-ranging as the names of people who grow watermelons or olives, information on tax returns, and the location of endangered plants and large caves is shielded from Americans under at least 140 provisions scattered throughout federal law.

Their use by federal departments to deny access to government information more than doubled between 1999 and 2006, according to data compiled from each department.

The provisions’ oft-buried fine print carves out exemptions to the Freedom of Information Act, a 42-year-old law that presumes public access to information from government agencies and lays out nine categories of information that the government may keep secret.

One of those nine is a catchall exemption which requires shielding government records that are specifically exempt from FOIA by federal law. Critics contend that the exemptions erode government transparency.

The exemptions “just have a tendency to chip away at the presumption that information is supposed to be public,” said Meredith Fuchs, general counsel of the National Security Archive, an independent nongovernmental research institute at George Washington University in Washington.

Dozens more catchall exemptions are being proposed in Congress, tucked into legislation for everything from bolstering the safety of the nation’s food supply to increasing security at wastewater treatment plants...

At least two dozen bills contain proposed special exemptions to FOIA. No one has an exact count, because they are difficult to track. Sometimes the proposals reference FOIA by citing “section 552 of title 5” of the U.S. Code. Other times, the language is more ambiguous, deeming that information shall be confidential or shall not be disclosed to the public.

Current proposals include exempting from FOIA a congressional advisory commission on world trade disputes, the identities of people who report illegal immigration and records related to railroad carrier plans to make the nation’s rails safer.

More here.

AP CEO Curley: "We Need More Sunshine"

An inspiring speech from Tom Curley, AP CEO and Sunshine Warrior, available here.

FEMA: Those Records Will Cost Ya...

From the Times-Picayune comes the latest PR victory from the folks who brought you the Hurrican Katrina cleanup...

The Federal Emergency Management Agency is charging a newspaper $209,990 for records documenting the agency's response to hurricanes Katrina and Rita, a price deemed "absurd" by one lawmaker.

The Advocate of Baton Rouge must pay that amount before FEMA will turn over copies of more than 2 million pages of documents relating to inspection and maintenance of government-issued trailers and mobile homes, the newspaper reported Tuesday.

FEMA also gave the newspaper 10 days to pay or said it would consider the request withdrawn.

Ah, yes...but the first 100 pages are free!

More here.

From Miami, A NIce New FOI Tool

For Sunshine Week, the Miami Herald has unveiled a cool new page dedicated to using public records.

Watchdog Data Sleuth -- developed by Assistant Managing Editor Manny Garcia and two of the newsroom's computer and online talents, Rob Barry and Stephanie Rosenblatt -- provides links to valuable public databases.

Also available on MiamiHerald.com today is a special page on public records and access, located here.

Over time, the Herald plans to build the Watchdog pages into a robust collection of links and databases that will serve as a resource in the yearround push for open government.

Monday, March 17, 2008

AP Sunshine Week Story: States Rolling Back Access

The AP's contribution to Sunshine Week is an excellent look at the national picture:

Some things your government doesn’t have to tell you about:

* The safety plan at your child’s school, if you live in Iowa.

* Medication errors at your grandparent’s nursing home in North Carolina.

* Disciplinary actions against Indiana state employees.

States have steadily limited the public’s access to government information since the Sept. 11, 2001, terrorist attacks, a new Associated Press analysis of laws in all 50 states has found. Legislatures have passed more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books.

The horror of the attacks spurred a wholesale re-examination of information that could put the country in danger, and the state actions roughly mirror those on the federal level. Federal agencies responded by shutting down Web sites, pulling telephone directories and rethinking everything from dam blueprints to historical records.

In statehouse battles, the issue has pitted advocates of government openness — including journalists and civil liberties groups — against lawmakers and others who worry that public information could be misused, whether it’s by terrorists or by computer hackers hoping to use your credit cards. Security concerns typically won out.

The AP discovered a clear trend from the Sept. 11 attacks through legislative work that ended last year: States passed 616 laws that restricted access — to government records, databases, meetings and more — and 284 laws that loosened access. Another 123 laws had either a neutral or mixed effect, the AP found.

“What these open government laws do is break down that wall of government secrecy so that everybody knows what’s going on,” said Lucy Dalglish, executive director of the Reporter Committee for Freedom of the Press. “A democracy can only function if we have information. You can only have oversight of government if you have information.”

Associated Press reporters in every state, often with help from their local press associations, tracked the government access bills introduced since the World Trade Center towers and Pentagon were hit by hijacked planes.

In every state, reporters tallied bills that were proposed each year, and then examined the laws that passed. They assessed the impact of each new measure and rated it as loosening existing limits on public access to government information, restricting the limits, or neutral.

While fear of another terrorist attack drove many new proposals, it wasn’t the only motivator. Concerns about identity theft, medical privacy and the vulnerability of computerized records have sparked many pieces of legislation, too.

Lawmakers say they are recalibrating the balance between information that could be used against society and what society at large needs to know.

“Since Sept. 11, we’re looking at information like plans for our nuclear plants, the records of our bridges and transportation systems. All of the critical information that is out there that we don’t necessarily want to put in the hands of a terrorist,” said New York state Sen. Nick Spano, a Republican who had proposed tightening legislation soon after the attacks.

“It’s a very difficult balance between the public’s right to know and the public’s right to security,” Spano said. A different security measure ultimately became law, limiting access to information about infrastructure from airports to cellular phone systems. Last year, Spano authored a law that strengthened public access by setting a strict deadline for state agencies to respond to requests for information.

The give and take of a legislature usually forces changes to such bills — like a measure proposed last year in Oklahoma, where freshman state Sen. Charles Wyrick, a Democrat, sought to completely exempt the state’s new Department of Homeland Security from the Open Meetings Act and Open Records Act.

“I don’t know why all of a sudden the holy grail of security and safety is now closing records,” Mark Thomas, head of the Oklahoma Press Association, said after the bill was introduced. “It seems to me we would be more secure if we knew what was going on around us. ... Apparently there are those in government who want to close all these records and say, ‘We’ll keep you safe, trust us.’”

Negotiations brought a compromise. The law that passed allowed the department to keep communications between the agency and the federal government confidential, along with security plans for private businesses.

“We had to fight that out, and basically it ended up being an equal distribution of unhappiness,” Thomas said.

Still, the numerical data shows which side got more out of negotiations overall: The AP analysis of 1,023 new laws dealing with public access to government information found that more than 60 percent closed access. Just over a quarter created new avenues of access. The rest had a neutral effect, often through technical changes to existing laws.

Those laws emerged from just over 3,500 bills. Often, several legislators interested in a topic will each introduce a bill knowing that only one is likely to pass. In some states, the same legislation is introduced in both House and Senate chambers to speed action and build support.

Across more than four years, 36 states passed more restrictive laws than laws that loosened access; seven states passed more laws that eased barriers to access; seven states passed equal numbers. The analysis did not attempt to quantify the impact of larger, sweeping laws versus smaller modifications.

The AP analysis also did not study legislation prior to the Sept. 11 attacks, though observers say the changes have been obvious.

“What we see nationwide is states really backing away from their open access laws,” said Fred H. Cate, an Indiana University law professor who studies privacy and technology. Security threats are real — but some lawmakers are just “taking advantage of the public security tide,” he said.

More here.

Saturday, March 15, 2008

Business is Good in Illinois

Requests to Illinois Attorney General Lisa Madigan's office for assistance with the state's Freedom of Information Act (FOIA) and the Open Meetings Act (OMA) increased by 38 percent in 2007, according to a release from Madigan's office..

The statistics, released today as part of Madigan's third Public Access Counselor Annual Report, show that in 2007, the Attorney General's office received 1,366 requests from the public, government officials and members of the media for assistance in matters dealing with the Illinois FOIA and OMA. In 2006, the office received 988 requests.

Members of the public seeking access to government information continue to lead requests for assistance. Of the total number of written and telephone requests relating to the Freedom of Information Act and the Open Meetings Act, 939, or nearly 69 percent came from members of the public.

Madigan's Public Access team also saw a large increase in the number of requests for FOIA and OMA assistance from government officials. In 2007, the Public Access Counselor received 111 requests for FOIA assistance from government officials, up 178 percent from the 40 requests from government officials in 2006. Additionally, in 2007, the Public Access Counselor received 174 requests from government officials for assistance in addressing Open Meetings Act questions, up 262 percent from the 48 requests received in the previous year.

A Nice AP Summary of the State of E-Mail Access

housands of e-mails zip through state computers every day, but Rhode Islanders live in one of at least seven states where residents cannot see what their elected officials are reading and writing in cyberspace.

more stories like this

The state's open records law was amended in 1998 to define e-mail as a public record subject to disclosure just like paper documents. But lawmakers kept a massive loophole in the Access to Public Records Act that keeps private all the correspondence of elected officials, whether electronic or paper.

A review by The Associated Press found that e-mails for governors in at least six other states -- Arkansas, California, Louisiana, Massachusetts, Michigan and South Dakota -- are officially exempt from disclosure under state open records laws. But even in the remaining states, access to e-mail is generally limited.

Open government groups in Rhode Island have proposed amendments to the open records law requiring government officials to respond to information requests faster and increasing the penalties for agencies that refuse to comply. So far, no one has suggested loosening the provision blocking government e-mails and letters from public view -- a provision that still rankles some lawmakers and open government advocates.

More here.

From Atlanta, A Wonderful Idea....

Why not simply recap the year's stories made possible by FOI? A great idea, here.

An example:


Binge bucks: It's Georgia taxpayers' plastic, to be used by state employees to purchase goods for government. So why do many use it to buy porn, gifts, tans and trips?

A1 story, Dec. 23, 2007


The story: A sample state audit of the use of purchasing cards, used by thousands of state employees to buy work-related items, showed poor oversight and a lack of control.

The state-issued Bank of America credit cards are used by 129 state agencies and dozens more local governments. The Atlanta Journal-Constitution analyzed more than 4 million transactions on state purchasing or "p-cards" and found a program that morphed from a simple way for workers to buy supplies into a $370 million spending spree.

How we got it: Under the Georgia Open Records Act, the AJC examined bank transactions on each state-issued purchasing card for the past three years. At the state's direction, Bank of America complied with the request because it is the custodian of the public records. The newspaper's analysis of p-card usage uncovered patterns of policy violations and hundreds of charges that raised questions. Employees used the cards to buy everything from tattoos to expensive trips. Employees spent $13 million in travel expenses, including $6 million for plane tickets, $240,000 in booking fees and $6.1 million in hotel and resort charges. They spent another $6 million at Amazon.com and $9.3 million at restaurants and caterers, to name a few.

The results: The statewide audit and newspaper articles prompted the governor to order all state agencies to review p-card use. Officials at the Department of Administrative Services, which oversees the program, said 1,200 cards have since been terminated, 1,000 more p-card holders had their transaction and/or credit limits reduced, and thousands of state staffers have now been trained. Lawmakers in both the House and Senate have introduced legislation that would further limit card usage.

The story and database are also available.

Text Messages, FOI (And a Dumb Quote from Moi)

Those supposedly private messages that public officials dash off on their government cellphones to friends and colleagues aren't necessarily private after all.

Courts, lawyers and states are increasingly treating these typed text messages as public documents subject to the same disclosure laws — including the federal Freedom of Information Act — that apply to e-mails and paper records.

"I don't care if it's delivered by carrier pigeon, it's a record," said Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri. "If you're using public time or your public office, you're creating public records every time you hit send."

A Texas judge agreed in December, ordering the city of Dallas to turn over e-mails written by some city officials as well as messages sent on handheld devices such as cellphones.

Journalists in Detroit are pressing for a similar ruling. Several media outlets, including the Gannett-owned Detroit Free Press, have sued the city for access to text messages Mayor Kwame Kilpatrick sent using his pager. Gannett also owns USA TODAY's parent company.

More here.

Friday, March 14, 2008

PA Paper Sues Over WVU MBA Records

The Pittsburgh Post-Gazette will sue West Virginia University for failing to comply with the state's open records law.

The newspaper alleges the university committed numerous violations in its response to requests for documents related to the school's decision last fall to retroactively award a master's of business administration degree to Mylan Inc. executive Heather Bresch, daughter of West Virginia Gov. Joe Manchin.

"The university has engaged in a constant and consistent practice of delay, evasion and concealment" in violation of West Virginia's Freedom of Information Act, according to the newspaper's complaint...

In the complaint, the newspaper alleges that the university failed to respond in a timely manner to a series of Freedom of Information Act requests, withheld public records that are not privileged or otherwise exempt from disclosure, and concealed information by intentionally misapplying exemptions under the law...

The Post-Gazette made three requests for documents. The first was submitted Dec. 21, the day the newspaper published a story questioning the way the university went about granting the M.B.A. degree to Ms. Bresch nearly a decade after she left the program. WVU records had showed that Ms. Bresch, a high school classmate and former business associate of Mr. Garrison, had completed only about half of the credits the graduate program required...

Mr. Garrison's e-mail, cell phone and landline records were among the documents that were improperly withheld, according to the complaint. Some of his records, which the university said it did not possess, were included in files of other university officials whose records were turned over to the newspaper.

The only record of usage for Mr. Garrison's cell phone that the university produced showed the total charge for the month, without any accompanying detail, the suit states.

The university produced no landline records for Mr. Garrison and records of his appointment books were substantially redacted, according to the suit.

In its FOIA request made Jan. 18, the newspaper asked for copies of all records relating to the subject of whether Ms. Bresch fulfilled the requirements for an M.B.A. and to the decision to grant the degree.

A large portion of what was produced by the university were reprints of news stories, including those of the Post-Gazette.

In addition, "Vast swaths of the documents produced are blacked out on the ground that the material ... is exempted from disclosure by the 'internal deliberations' exemption" of the open records law, the complaint says.

More here.

A Secret Search? Arguments Always the Same...

The Temple Daily Telegram in Texas filed a Freedom of Information Act request Thursday with the Temple school district to disclose the names of five candidates selected to be interviewed for the vacant superintendent position.

The Temple school board intends to select a sole finalist and hire that person 21 days later, as opposed to multiple finalists. While the law allows for a sole finalist, Carroll Wilson, Telegram managing editor, believes the intention of the law is to allow the community sufficient time to vet all five candidates being interviewed for superintendent.

“The Telegram has asked for the names because the public has a right to know who is being interviewed to become superintendent of schools,” Wilson said Thursday. “State law recognizes the public right by requiring school boards to name their finalists. It’s disingenuous of the school board to argue that the five people they intend to interview aren’t finalists simply because they’re not using the word ‘finalists’ to describe them. Common sense says, of course, they’re finalists.

“Particularly given the problems the school board has had in the past in the selection of and the retention of superintendents, this process should have been as transparent as possible. And now is the time for the board to live up to the letter and the spirit of the law by being as open as possible.”

School board president Steve Wright said the board is following the law and the confidentiality of the process helps bring in higher quality candidates.

“We are choosing to go with a sole finalist because we have concluded that we are doing a closed application process, to ensure the quality of the applicants we receive and protect the anonymity of the applicants,” Wright said. “Circumstances are such that those people that are actively working in districts and enjoy that experience do not wish to expose that they are applying for other jobs to their home districts.”

More here.

Thursday, March 13, 2008

NFOIC Keynote Address

A former USA Today reporter held in contempt for not revealing her sources for stories about the 2001 anthrax attacks will give the keynote address at the annual meeting May 9-10 of the National Freedom of Information Coalition.

Toni Locy had been ordered by a federal judge to pay fines of up to $5,000 for each day she refuses to reveal her confidential sources, but a federal appeals court earlier this week blocked the order.

The decision by the U.S. Court of Appeals for the District of Columbia means Locy will not have to pay the fines or face further sanctions, including possibly time in jail, while her lawyers fight the contempt ruling.

An Oldie But a Goodie: Oldest Pending FOI Requests

Several federal agencies are running more than 15 years late on public record requests sent under the Freedom of Information Act (FOIA) when the first President Bush was still in office.

The Energy Department has the tardiest public record request, according to a review by The Hill of annual FOIA reports published by Cabinet-level agencies for the last fiscal year. It still has not answered one request from Dec. 6, 1991, although other departments are not far behind.

The Defense Department has a request pending from May 5, 1992, while the Treasury Department has not answered a request from March 8, 1993.

“Typically, when I file a request for information, I want it this week or this month, not 15 years from now,” said Steven Aftergood of the Federation of American Scientists. He said the decade-old requests are inconsistent with a law that is intended to get information to the public as quickly as possible.

Most FOIA requests are handled much more quickly by agencies, which in some cases are dealing with a significant workload. But the review shows some FOIA requests go unanswered for years, often because they are seen as touching on sensitive national security matters. A lack of resources and scant pressure from Congress in recent years are also seen as factors that have led to years-long FOIA waits.

More here.

Truth-in-Labeling FOIA Exemptions: A GREAT Idea

Most people don’t realize this, but there are hundreds of exemptions to the Freedom of Information Act buried in laws passed by Congress.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, introduced legislation today that would force lawmakers to “explicitly and clearly” state when they are creating such exemptions to FOIA in all future bills.

The legislation is intended to coincide with Sunshine Week, which starts on Sunday. For those in the dark, that is a week devoted to prying open the byzantine ways of Congress and the federal government.

The exemptions to FOIA addressed in the measure are known as (b)(3) statutory exemptions. They are typically tucked away in massive legislative proposals, making it difficult for requestors to determine whether access to information is subject to FOIA.Â

“This latest bill is an effort to further enhance government transparency and accountability,” Cornyn said. “Sunshine Week is an opportunity to highlight these important principles of our founding fathers; a truly self-governing society depends on an informed citizenry. Chairman Leahy and I will continue working together to ensure the public’s fundamental right to know what their government is doing.”

More here.

Wednesday, March 12, 2008

Want to Know What's In Your Tap Water? Sorry...

A fine example of secrecy madness from USA Today:

When water providers find pharmaceuticals in drinking water, they rarely tell the public. When researchers make the same discoveries, they usually don't identify the cities involved.

There are plenty of reasons offered for the secrecy: concerns about national security, fears of panic, a feeling that the public will not understand — even confidentiality agreements.

Much, much more here. Warning: if you like access to information, this will have you muttering at your computer screen...


A Wonderful Compendium of FOI Info

The San Francisco Bay Guardian, long one of the nation's best FOI warriors, has produced its annual FOI issue, complete with a GREAT resource list.

It's all available here.


Sunshine in Kansas: The State of Play

A nice column from our man in Kansas, Randy Brown:

Those of you interested in preserving our democratic society need to celebrate Sunshine Week, March 16-22.

Actually, "celebrate" is far too strong a word. "Observe with passion" is a better way to look at it, because there's not much to celebrate. The cause of open government is going backward -- in Kansas and across most of the United States.

The Sunflower State, along with 37 other states, recently flunked the sunshine test by the Better Government Association, a nonpartisan watchdog group that digs into problems and solutions about transparency and accountability in government. The study examined citizens' access to public information.

The ugly results show that "citizens have little or no recourse when faced with unlawful denial of access to their state's FOI laws," said Charles Davis, executive director of the National Freedom of Information Coalition.

That should be no surprise in Kansas, where there has been a recent epidemic of open government problems involving local governments and issues large and small. A few examples:

The Kansas Attorney General's Office has ruled that the Thomas County Commission twice violated the state's open meetings act by discussing a salary plan behind closed doors. In early February, Assistant Attorney General Michael Smith told commissioners they must accept a settlement agreement or face prosecution.

Lawrence city commissioners were ordered in January to take a two-hour refresher course on compliance with the Kansas Open Meetings Act. Commissioners got into trouble when they went into a closed-door executive session to consider economic development incentives for a pharmaceutical company. After the violation became public, the company scuttled its plans to expand in Lawrence.

The Topeka City Council ignited a firestorm with its "serial meeting" end run around the open meetings law to buy a backup police helicopter. Essentially, five members of the council met one-on-one in secret phone calls. The $850,000 copter purchase passed 5-4. Now Shawnee County District Attorney Robert Hecht has filed a lawsuit seeking to block the purchase. He says the most important issue is the council's secret run around the law.

There's plenty more bad news, but why? Why are so many local governments finding it so hard to operate meetings legally? Why is it often so difficult for members of the public to get access to public records?

More here.

Police reports bill moves in Mississippi

A bill that would make police incident reports available to the public cleared a Senate committee with little discussion this morning.

House Bill 474 now heads to the floor of the chamber for a vote before it can advance to Gov. Haley Barbour.

If enacted, basic law enforcement documents that give general information, such as the names of suspects and the date of their arrest, about a case would be considered an open record. Investigation reports that contain more detailed information would still be exempt.

Sen. Gray Tollison, D-Oxford, has said he is in favor of the legislation, provided it does not harm ongoing investigations. Tollison chairs the Senate Judiciary B Committee, which passed the bill this morning.

Open government and media advocates have lobbied lawmakers to pass the legislation for years.

A companion, Senate Bill 2728 passed out of a House committee Tuesday, but it was amended.

Oklahoma Court Plan Greatly Curtails Online Access

The Oklahoma Supreme Court has adopted rules cutting off public access to court records now available on the Internet.

When the rules go into effect on June 10, online access to court documents in the Supreme Court and district courts would be limited to court dockets only.

"The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the Internet," according to an order signed by Chief Justice James R. Winchester and four other justices.

The order, released on Tuesday, described the new rules as an effort to balance the rights of privacy of individuals and public access.

Besides eliminating Internet access, the order puts new restrictions on what information the public can access from legal documents filed with court clerks.

More here.

Tuesday, March 11, 2008

Rhode Island Discusses Reforms

E-mails from residents to their legislators are meant to be passed along and open to the public.

Legislative grants should be banned.

Interpreters for the deaf and other amenities for those with disabilities should be available at all City Council and School Committee meetings.

And three days — instead of the present 10-day time frame — is a reasonable amount of time to provide public documents when requested.

Those were just some of the opinions shared by four legislators during last night’s “State of Government in Rhode Island” forum at the Community College of Rhode Island’s Knight Campus. The event was sponsored by the Rhode Island Press Association and ACCESS/RI, a public information coalition.

More here.

New Mexico Next on FOI Reform?

Attorney General Gary King plans to ask the Legislature next year to update a New Mexico sunshine law providing access to public records.

One change proposed by King will require governmental bodies to accept e-mail requests for documents under the Inspection of Public Records Act. Currently, the law is unclear whether e-mail are the same as a written request for public records, according to the attorney general's office.

"So what we're going to be working on is a total revamp of that part of the law so that it meets 21st century standards," King said in a recent interview with The Associated Press.

Last year, King's office issued an advisory opinion on the issue after New Mexico State University decided not to treat e-mail as a valid request for public records.

"I think that agencies, if they want to, can accept e-mail requests because you can print them out and turn them into a written request basically. But we just didn't think that the law required it," King said.

The attorney general's office and some other agencies accept e-mailed requests for public records.

More here.

Monday, March 10, 2008

In Missippi, Three Requests for Info Meet Sad Fate...

The Clarion-Ledger continues its excellent work on secrecy by asking for some info...

Despite a weeklong public awareness campaign by newspapers across the state last month, attempts to pierce Mississippi's official veil of secrecy continue to be a hit-and-miss endeavor.

hree recent efforts by The Clarion-Ledger to obtain public records from officials in Hinds and Madison counties and Jackson Public Schools met with resistance with the officials claiming unconventional exemptions and trying to put a costly price tag on the information without explaining why.

Jeanni Atkins, executive director of the Mississippi Center for Freedom of Information, said Mississippi officials historically have been reluctant to share information with the public and the press. The Legislature is reviewing several measures to strengthen the state's sunshine laws, but changing attitudes will take longer, she said.

"This culture of secrecy is very ingrained. It's been very encouraging that some of the new, young legislators are very open to the idea of giving access to the public," she said.

As part of the series examining Mississippi's open-government practices, The Clarion-Ledger attempted to access a wide variety of documents to test official attitudes toward public-records laws. One of the thornier requests went to new Hinds County District Attorney Robert Shuler Smith and state Attorney General Jim Hood for their files on Jackson Mayor Frank Melton.

Melton and his two police bodyguards were indicted in 2006 on a variety of charges related to his police-style tactics. Two separate trials ended with Melton pleading guilty to misdemeanor weapons charges and a jury verdict of not guilty on felony charges related to a raid on an alleged drug house.

Smith was an attorney on Melton's defense team in Melton's felony trial last March and was elected district attorney later in the year, defeating District Attorney Faye Peterson.

While Hood ordered his staff to release virtually all of the documents from his investigation, Smith denied the paper's request, citing a clause in state law exempting records pertaining to a criminal investigation. In a letter, Smith wrote that while the Melton case "has been characterized as a closed file," The Clarion-Ledger has written numerous stories regarding a federal grand jury investigation into the mayor's activities.

"Accordingly, we are bound by the statute to deny your request," he wrote.

More here.

An Interesting Study on Geospatial Data and the Threat of Open Info...

A favorite graduate student of mine passed this gem along...

"Mapping the Risks Assessing the Homeland Security Implications of Publicly Available
Geospatial Information" from the RAND Corp.


"Fewer than 6 percent of the 629 federal geospatial information datasets we examined appeared as though they could be useful to a potential attacker. Further, we found no publicly available federal geospatial datasets that we considered critical to meeting the attacker's information needs (i.e., those that the attacker could not perform the attack

Given the ready availability of alternative data sources, restricting public access to such geospatial information is unlikely to be a major impediment for attackers in gaining the needed information for identifying and locating their desired targets in the United States. The key exception to this general expectation is any type of geospatial information that reveals the location of vulnerabilities in the critical infrastructure that are not obvious or widely known, such as a particular choke point in a major power grid or telecommunications network."

The study can be found here.

Saturday, March 08, 2008

Guv to AG: Those E-Mails Will Cost A Half-Million

The endlessly entertaining saga of the missing e-mails takes another turn:

Attorney General Jay Nixon said Saturday that Gov. Matt Blunt is demanding a "hugely exorbitant" amount of money for e-mail records sought by his appointed investigators.

Blunt has told Nixon's special investigators that they must pay nearly $541,000 to obtain governor's office e-mails from a backup system. Nixon suggested the charge was inappropriate.

"I think they should make these documents available publicly, and they should do so quickly," Nixon said in an interview with The Associated Press.

Last fall, Nixon appointed a three-person team to look into whether Blunt's office was violating the state's open-records law or document retention policies by deleting some e-mails.

That came after former Blunt legal counsel Scott Eckersley claimed he was fired for advising the governor's office it was violating the open-records law by not retaining some e-mails. Eckersley has sued Blunt for wrongful firing and defamation.

The Republican governor has said Eckersley was fired for justifiable reasons, including doing private work with state resources, and has dismissed the Democratic attorney general's appointed investigation as political.

Nixon is running for governor, though Blunt is not seeking re-election.

Nixon asserted Saturday that he has allowed the investigators to act independently and that he knows nothing about the details of their records requests to Blunt's office nor about the specific reasons why the governor's office has not turned over the requested e-mails.

More here.

West Va. FOI Request Shows Storm of Protest Over Guv Kid's MBA

Some alumni told West Virginia University administrators they believed the controversy over Mylan Inc. executive Heather Bresch's graduate degree cast a dark cloud over the school, according to documents released by WVU this week.

The documents, obtained by the Post-Gazette under the state's Freedom of Information Act, offer a glimpse into how some alumni and West Virginia citizens view the matter, but offer no new insights into how or why officials decided to award a Masters of Business Administration degree to Ms. Bresch in October, nearly a decade after she left the program.

"I am a member of the class of 2000 and am writing to you to express my embarrassment over the Heather Bresch story," one disgruntled alumnus wrote in a Dec. 30 e-mail to university President Michael Garrison. "Your handling of this situation tarnishes the name of West Virginia University and calls into question every degree it has awarded."

"I for one plan to sue," said another. "My degree isn't worth squat anymore. When the full extent of this gets out the reputation of WVU will be completely in the toilet."

The e-mails were sent in the wake of a Dec. 21 story by the Post-Gazette that raised questions about how the university went about granting the degree even though university records showed Ms. Bresch, daughter of West Virginia Gov. Joe Manchin, had completed only about half of the credits required.

More here.

A Novel Argument: We Deleted, So They're Exempt!

A judge wants a closer look at why the Harris County Sheriff's Office believes its mass deletion of 750,000 e-mails from employees' computer inboxes makes the correspondence exempt from the Texas Public Information Act.

The mass e-mail deletion — six months' worth — was ordered Jan. 9 but executed on Jan. 12, one day after television reporter Wayne Dolcefino of KTRK (Channel 13) requested e-mails from the Sheriff's Office.

Dolcefino received some e-mails from the Sheriff's Office but his station contends they are not sure if they got all of them because the order to delete messages more than 14 days old coincided with requests he had made, the station's attorney says.

"There is some coincidental issue," said John Edwards, attorney for KTRK.

The station obtained a temporary injunction against the Sheriff's Office to halt the deletions once KTRK learned of them and requested copies of the e-mails deleted from employees' inboxes, which occurred between Jan. 12 and Jan. 19.

More here.

A Novel Argument: We Deleted, So They're Exempt!

A judge wants a closer look at why the Harris County Sheriff's Office believes its mass deletion of 750,000 e-mails from employees' computer inboxes makes the correspondence exempt from the Texas Public Information Act.

The mass e-mail deletion — six months' worth — was ordered Jan. 9 but executed on Jan. 12, one day after television reporter Wayne Dolcefino of KTRK (Channel 13) requested e-mails from the Sheriff's Office.

Dolcefino received some e-mails from the Sheriff's Office but his station contends they are not sure if they got all of them because the order to delete messages more than 14 days old coincided with requests he had made, the station's attorney says.

"There is some coincidental issue," said John Edwards, attorney for KTRK.

The station obtained a temporary injunction against the Sheriff's Office to halt the deletions once KTRK learned of them and requested copies of the e-mails deleted from employees' inboxes, which occurred between Jan. 12 and Jan. 19.

More here.

Friday, March 07, 2008

University of Illinois Accused of Secrecy

SPRINGFIELD – The University of Illinois came under fire Thursday for its response to requests for public records.

State Rep. Chapin Rose, R-Mahomet, criticized the UI for what he sees as a pattern of "unresponsiveness" on Freedom of Information Act inquiries from students and journalists, on subjects ranging from utility costs to the retirement of Chief Illiniwek.

At a legislative budget hearing in Springfield, Rose said the UI has dragged out requests by denying them outright, demanding fees or calling them "unduly burdensome."

"Why can't we get these documents?" Rose asked UI President B. Joseph White.

White defended the university's commitment to openness and its record on FOIA requests, but also promised to do better.

"The general principle is, we do our business not only in the open but in the sunshine," he said.

Rose said in one case, UI student Paul Schmitt – elected last week as the new Urbana student trustee – was told his request for correspondence between "officers and agents" of the university and the NCAA was unduly burdensome because it didn't specify what an officer or agent was.

"At best that's a slap in the face to the kid who filed it. At worst you're trying not to disclose something," Rose said.

More here.

Thursday, March 06, 2008

The Petition Clause Takes a Beating in Missouri

The people elected to make laws in Missouri are trying to make it more difficult for voters to make laws themselves.

The General Assembly’s quest to restrict ballot initiatives could cause a clash between the people’s constitutional rights and the legislature’s constitutional powers.

In addition to general free speech rights, the Missouri Constitution specifically states that people have the right to enact laws and constitutional amendments through initiatives, independent of the General Assembly.

Yet the legislature also has the power to prescribe the details of how that is done.

So on Feb. 28, the House voted 107-41 to pass legislation that would impose several new requirements on the people who gather petition signatures. The bill, H.B. 1763, would:

  • Require petition circulators to be Missouri residents and U.S. citizens.
  • Prohibit them from being paid based on the number of signatures they gather.
  • Bar them from simultaneously collecting signatures for more than one initiative.
  • Require them to register with the secretary of state’s office before they start collecting signatures rather than before the deadline to turn them in, as is currently the case.

The legislation now heads to the Senate, where a similar proposal already is pending on this week’s debate calendar.

More here.

Iowa Reforms Clear Hurdle

Iowa’s sunshine laws would have some new cops on the beat under a proposal recommended Wednesday by a Senate committee.

The 50-page bill is in response to years of complaints from citizens, media organizations and government agencies about a lack of openness in government. The biggest change would be the creation of a new office to investigate alleged violations.

“We’re trying to shine the light even brighter on government,” said Sen. Mike Connolly, D-Dubuque, the bill’s lead sponsor.

The Senate State Government Committee recommended the bill on a voice vote, with no opposition, though two Republicans chose not to vote.

The measure is now eligible for debate on the Senate floor.

The following are some of the notable parts of the plan:

* A new group, the Iowa Public Information Board would be created to enforce the law. The bill doesn’t include the board’s budget, but sponsors said they expect the board to cost up to $1 million per year to run. Under current law, the Attorney General’s Office is one of several agencies that enforce the open meetings and open records laws.

* Violations of the law would be subject to a civil penalty, as opposed to a criminal one. The minimum fine would rise from $100 to $1,000, and the maximum would rise from $1,000 to $2,500.

* Government boards that are conducting a job search would need to disclose the names of candidates once the search is narrowed to five or fewer candidates. This is in response to concerns about openness in the recent University of Iowa president’s search.

* Out-of-court settlements involving a government board would be public record.

More here.

Rhode Island FOI Reforms Unveiled...

Proponents of public records access, including the media and the Rhode Island Affiliate of the American Civil Liberties Union, came out in support last night of a bill that would strengthen the state’s Open Records Law.

Those in favor of the amendments say they would help make Rhode Island government more transparent and protect the public’s right to know.

Critics meanwhile worry that the changes would drain staff resources and increase costs at a time when public agencies are already strained.

Proponents of public records access, including the media and the Rhode Island Affiliate of the American Civil Liberties Union, came out in support last night of a bill that would strengthen the state’s Open Records Law.

Those in favor of the amendments say they would help make Rhode Island government more transparent and protect the public’s right to know.

The legislation, sponsored by Rep. Edith H. Ajello, D-Providence, and presented yesterday to the House Judiciary Committee, calls for limiting the amount of time public bodies have to respond to open records requests from the current 10 days, to 3 days, with some exceptions.

Police departments would have just 24 hours to respond to provide arrest reports, including the narratives that explain the specific circumstances surrounding the arrests. While organizations facing unduly large or complicated budget requests would have 20 days to answer requests (currently they have 30 days).

Public bodies that fail to comply with the law would see fines increased from the current $1,000 to $15,000.

The second major change in the law calls for all state agencies to train any of their officers and employees authorized to grant or deny records and to annually certify in writing that it has done so.

More here.

Wednesday, March 05, 2008

You've Got (Incendiary) Mail!

The N.C. Department of Health and Human Services' public affairs director, who was fired Tuesday, said that Gov. Mike Easley's press office instructed the chief spokesmen for executive branch agencies to destroy e-mail correspondence to his office.

"The governor's office, press office, to bypass the public records laws, they ask the second you e-mail them anything, to kill it, then kill it again out of your trash so it doesn't exist," said Debbie Crane. "That's what they tell all the public affairs people, that they don't want to create any public records."

Seth Effron, a spokesman for Easley, denied Crane's allegation.

"This office has never told anybody to destroy any public record," Effron said. He also said that Crane had been "dishonest, untruthful and insubordinate," and had hindered reporters from getting information from the department. He declined to elaborate.

Crane, a public information officer for 18 years, was fired amid the fallout from a News & Observer investigation of the state's mental-health system. Her contention, if true, shows a violation of the state's public records law, said Amanda Martin, an attorney for the N.C. Press Association and The News & Observer.

More here.

A Bad Exemption In Maryland, Part II

A bill blocking access to some information requested under the Maryland Public Information Act will be referred to a subcommittee for amendments. The bill, introduced at the request of Baltimore City, would require anyone seeking information from a state or local government agency related to a pending lawsuit, to obtain a court order.

David Ralph, chief of the city Law Department's Litigation and Claims Division, testified Feb. 27 before the House Health and Government Operations Committee that the city was overwhelmed by requests from attorneys trying to circumvent trial-discovery laws by gaining access to further information under Maryland's Public Information Act. Ralph told legislators that the bill had "nothing to do with the limitation of public information. The only thing we care about is requests that were meant to be abusive."

The Public Information Act, which became law in 1970, governs the release of state documents and provides instances in which documents cannot be released, such as where the information could compromise trade secrets or medical information.

More here.

Saturday, March 01, 2008

At Least Five FOI Bills In Georgia...

The public's right to government records could shrink or expand depending on the outcome of five bills vying for lawmakers' approval this session.

While one measure would allow judges to keep the public from seeing sexually explicit evidence in criminal trials (a response to a notorious teen sex case), another would raise the bar legislators must clear to keep records from the public eye.

Just two weeks ago, contractors' bids and contracts with development authorities -- documents the public has a right to view -- seemed headed toward secrecy under House Bill 1200, sponsored by Rep. Wendell Willard, R-Sandy Springs. However, the House State Planning & Community Affairs Committee tabled the bill and a motion to revive it failed this week....

Making it harder to create an exemption is at the heart of Senate Resolution 970, which resides in the hands of the Senate Ethics Committee.

S.R. 970 proposes a constitutional amendment that would require any new exemption to the Open Record Act to get a two-thirds majority in the House and Senate, a so-called supermajority that now is reserved for proposed constitutional amendments...

More here.