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.

Thursday, July 31, 2008

Information Games: How Many Animals Killed?

Jeff Barnard, who covers environmental issues for the Associated Press, weighs in with this fascinating tale of information control...shall we say selective presentation? Perhaps the national picture is less flattering than your individual state...do you want to go back and request the national tabular data?

Until now, anyone who wanted to know how many wolves, skunks or even robins that hunters for the U.S. Department of Agriculture shot, poisoned or snared across the nation could look it up on an agency Web site.

The department's Wildlife Services agency, whose job is "creating a balance that allows people and wildlife to coexist peacefully," spent $117 million in fiscal year 2007 to kill 2.4 million wild animals representing 319 species, up significantly from the year before.

But the latest report obscured the nationwide numbers.

The report on fiscal year 2007 posted on the agency's Web site last week requires anyone interested in nationwide totals to call up individual reports from each of the 50 states and then do the math.

The new color pie charts and drop-down menus of state-by-state listings came on the heels of the agency's refusal even to post the information for fiscal 2005 and 2006 until after conservation groups sent a formal demand letter reminding Deputy Director William Clay of a 2000 federal court ruling requiring the agency to do so under the Freedom of Information Act, said Wendy Keefover-Ring of WildEarth Guardians. The group does an annual analysis of the numbers as part of a campaign to cut federal funding for killing predators.

More here.

Tuesday, July 29, 2008

PA Ombuds Steps In...

Welcome, Terry, a veteran FOI stalwart...

An East Stroudsburg native and former local reporter will play a key role in implementing Pennsylvania's most sweeping reform to government records access in 50 years.

Terry Mutchler was named by Gov. Ed Rendell as the first executive director of the Office of Open Records. The office was created as part of the new open records law approved this year by the state Legislature. Most law provisions take effect in January 2009.

Mutchler, who held a similar job in Illinois, said she was consulted by a Pennsylvania official about what changes were needed here to improve citizen and media access to state and local government documents.

"I was very surprised that Pennsylvania had the presumption that records were closed," she recalled during a visit Wednesday to Monroe County. "I said, 'You have to change the presumption.' The burden should be on the agency all the way to say why records shouldn't be open."

The new law does place the onus on government agencies to justify why records shouldn't be released, rather than on the requester to justify why the records should be provided. Mutchler calls this the most significant improvement to the state's open records law.

More here.

How To Make A $155 Video...

Ah, the games we play...

She knew copies of public records weren't handed out free of charge, but Overland resident Courtney Cerulo didn't expect the fee that would be attached to a videodisc of a City Council session.

Cerulo would have to pay $155 for the recording, which she wanted in hopes of bolstering her complaint that Ward 1 Councilwoman Eedie Cuminale is serving on the council even though she lacks an occupancy permit.

"I was shocked," Cerulo said.City Administrator Jason McConachie said the fee reflects the cost of producing a copy of the video, which Charter Communications provides the city.

"Charter makes the tape and provides a copy of the tape to the city," he said. "At that point, it becomes a public record."

He said the city is allowed by state law to recoup its costs of providing public records. He confirmed the price quotes to Cerulo, explaining there is a $35-an-hour charge (at a minimum of three hours) for duplicating a copy of a council broadcast and a cost of $25 (each way, for a total of $50) to pay a courier to take the tape from City Hall to a contractor to duplicate it and the return trip back to City Hall.

More here.

Huge Ruling in Tennessee: Private Prison Company's Records Are Public

Welcome news from Tennessee, on a subject I have frequently opined about:

A Nashville judge ruled Tuesday that private prison company Corrections Corp. of America is subject to Tennessee's open records law.

Chancellor Claudia Bonnyman ordered CCA to provide information on settlements, judgments and complaints against the company to Alex Friedmann, who first requested the information in an April 2007 letter.

Joe Welborn, an attorney representing CCA, said the company will appeal.

Bonnyman said the overriding issue was whether the company performs a government function.

"The court finds that CCA is the equivalent of a government agency based first and foremost on the fact that the Tennessee constitution makes the maintenance of prisons and keeping of prisoners a state function," she said.

The ruling only applies to records of Tennessee prisons, not to federal prisons the company runs, or prisons in other states.

More here.

Stiff Price Tag for E-Mails: $1700

A Vermont request comes with a steep price tag:

The Douglas administration is demanding $1,700 from the Vermont State Employees' Association if the union wants to look at public records related to the 400 state job cuts Gov. Jim Douglas has ordered.

"The time (and associated cost) are high because the request will require review of many thousands of e-mail messages to or from the named individuals" -- named in the union's request for access to the documents, wrote Harold Scwartz, administrative services director at the Department of Human Resources.

The union, which had sought e-mails and other internal documents related to the cuts dating back to last fall, called the charge exorbitant.

"The fact is, the public has a vested interest in knowing what government services and operations are impacted by the governor's position reduction’ initiativebut the public should not be required to pay to examine internal correspondence about those effects," VSEA Interim Director Michael Casey said in an e-mail.

Administration officials referred questions to Linda McIntire, deputy secretary of administration, whose agency includes the Department of Human Resources. She said the department and agency want to be responsive to the union's request, but found the costs in staff time to reply to the VSEA request would be high.

She pointed to a provision in Vermont law that allows a government agency targeted by a public records request to charge for the time it takes to respond to the request.

More here.

Monday, July 28, 2008

96% Support for Openness in Wisconsin...

In an editorial by the Wisconsin State Journal comes this little nugget:

If you think the public doesn’t care about open government laws — think again.

Virtually every Wisconsin resident — 96 percent — who responded to a recent survey expressed support for keeping government transparent and honest. In fact, Wisconsin citizens favored right-to-know laws more than any other proposal for making government work better.

The public made its views clear in 400 interviews recently conducted for the Midwest Democracy Network, an alliance of civic and political reform groups.

More here.

Sunday, July 27, 2008

Nursing Home Records Paing Grim Picture

An extremely detailed and well-reported series on nursing home standards in the Milwaukee Journal-Sentinel revolves around an FOI-driven database of 20,000 pages of reports...Poston, by the way, is a Mizzou alum (shameless plug):

For many people approaching the end of their lives — frail, ill and often suffering from some form of dementia — the final refuge is a nursing home. In many cases, the care they and younger, disabled patients receive in those homes is satisfactory, sometimes even excellent.

Unfortunately, an extensive Journal Sentinel investigation has revealed that too many nursing homes in Wisconsin are failing to properly care for some of society's most vulnerable members. And when that happens, the results can be catastrophic.

Like the 87-year-old woman who died of an allergic reaction to a drug that, as her chart clearly indicated, she should never have been given. Or the 45-year-old man who suffocated 45 minutes after he vainly requested a nurse to suction his tracheotomy tube.

Those were just two of the 56 deaths of patients in Wisconsin nursing homes since 2005 that resulted in dozens of homes being cited for serious violations.

Although none of the nursing home inspection reports examined by the Journal Sentinel's Mary Zahn and Ben Poston concluded that the 56 deaths were the direct result of poor care, the reports did document how inadequate training and lack of supervision of nursing home staff along with other problems contributed to a disturbing rise in injuries, including broken bones and bruises.

More here.

Here is a nice little nugget on FOI 2.0

From a column on Web 2.0:

Web 2.0 impacts government in many ways. One is simply whistle-blowing –– take IllegalSigns.ca, the clever Toronto "mashup" of government data and Google mapping. It pinpoints the location of illegal billboards and holds city government accountable to remove them.

In Los Angeles, academics and neighborhood activists are collaborating to apply city data to identify blocks with suspiciously high numbers of code violations and property tax delinquencies. The idea: Use "real-time" (current) data to pinpoint problem areas before they escalate.

Plus, CrimeReports.com is trying to get police departments nationwide to show and renew daily data on criminal activity by precise street location. A scattering of cities have agreed, among them our nation's capital. (You can test the system yourself –– enter a well-known address such as 1600 Pennsylvania Ave., Washington, D.C.).

There's a fascinating twist to the Web 2.0 story –– its lead city is America's often-maligned national capital. Stephenson argues convincingly that "Washington Mayor Adrian Fenty and his chief technology officer, Vivek Kundra, are this country's hands-down leaders on use of data feeds and data visualization."

Why? I asked Kundra. "There's very little government does that needs to be locked up, sealed, behind closed doors," he replied. Recalling his wonder on coming to America at age 11 (he'd been born in India, raised in Tanzania), Kundra talks with excitement of government focused on serving citizens.

More here.

Friday, July 25, 2008

The Safety of Our Bridges: None of Our Business, Apparently...

Under the "the less you know, the safer you surely must feel" category comes this one:

Nearly a year after the pavement gave way, sending her Volvo plunging toward the Mississippi River in Minneapolis, Interstate 35W bridge collapse survivor Sara Miller is convinced full bridge inspection reports should be made public.

Bridge ratings are available from states and the federal government, but in many states, the detailed inspection reports are off-limits over terrorism concerns.

The reports "should absolutely be public," said Miller, 32, of St. Paul, who climbed out of her car and escaped serious injury.

Michael Keegan, spokesman for the Department of Homeland Security, says it's up to states to follow their own laws but "we definitely provide guidance to the local governments to be aware and vigilant" for people who "might be developing some type of plan to attack the bridge."

Policies vary from one state to the next, and how much information they release about bridges "is different across the board," said Kelley Rehm with the American Association of State Highway and Transportation Officials.

More here.

An Interesting Case: Judicial E-Mail

West Virginians can read electronic mail exchanges between judges and private citizens even if the e-mails mix public and private business, The West Virginia Record argues in Kanawha Circuit Court.

The Record sought leave to file a brief July 24 as a "friend of the court" in a suit the Associated Press news service filed against state Court Administrator Steve Canterbury.

The AP wants Canterbury to produce e-mails between Chief Justice Spike Maynard of the Supreme Court of Appeals and Massey Energy president Don Blankenship.

Canterbury has resisted, claiming the e-mails contain private information exempting them from the state Freedom of Information Act.

More here.

Latest Torture Memo Released Under FOIA

In the Washington Post and a host of other papers came stories today of a 2002 memo, or bits and pieces of it anyway...

The American Civil Liberties Union yesterday released three heavily blacked-out documents it received as a result of its ongoing, four-year-old Freedom of Information Act lawsuit. One document is a previously undisclosed August 2002 memo to the CIA from the Justice Department Office of Legal Counsel, which essentially offers a guide to how to torture and get away with it.

Here's an excerpt:

"To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. . . . We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. . . . A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain and suffering. . . . Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.

"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. . . .

More here.

FOI Delays and the Webs They Weave...

An intriguing tale of why FOI delays hurt us all. I enjoy the tone, as it is soooooo deserved:

If anyone is still wondering about the safety of a circus that came through Norfolk more than six years ago, we now have the answer.

A computer file of nearly decade-old federal inspections of a business that no longer exists, addressed to a reporter who no longer works at The Pilot, arrived this week.

The records show that Sterling & Reid Brothers Circus, which was investigated after a worker beat an elephant at the Scope, had problems ranging from poor care to inexperienced staff to animals getting loose.

If only we had known that, oh, six years ago, when then-Pilot reporter Lou Misselhorn requested the documents under the federal Freedom of Information Act.

More here.

FOI At Work: Army Transport Prone to Tipping?

The towering trucks that give U.S. troops the best protection against roadside bombs and enemy bullets also make them vulnerable to routine hazards like sharp turns, rutted roads and rickety bridges.

Five deaths caused by rollovers and dozens of other accidents in Iraq and Afghanistan have led U.S. military leaders to warn troops to be smart behind the wheel, according to military documents obtained by The Associated Press and accident reports released under the Freedom of Information Act.

The message is especially relevant in Afghanistan, where a resurgent Taliban has boosted demand for these steel cocoons, known as MRAPs. Due to the country's mountainous terrain and unpaved roads, officials will send nearly 800 more RG-31s, the smallest of several different MRAPs the military now uses.

More here.

Thursday, July 24, 2008

Nigerian FOI Bill: Introduced in 1999...and still waiting

On the 14 July, This Day announced the freedom of information bill brought before the Nigerian National Assembly in 1999 has now become the oldest unpassed legislation still pending before that body.

The articles says the bill has been subject to “unprecedented debate, wrangling and bickering between the nation’s law makers and various stakeholders.”

This situation is certainly troubling, with an article featuring in the Nigerian newspaper Punch titled ’Pass the FOI Bill now or history will mock you’. It quotes the National Chairman of the Peoples Salvation Party, Dr. Junaid Mohammad, as saying:

There cannot be democracy without the rule of law. The essence of the rule of law is to hold power and those who wield power are accountable to the people. This necessitates transparency and full protection of the media, otherwise the very essence of democracy is in peril…

The Freedom of Information Bill will be passed into law by the present National Assembly or another one will do that and put the incumbent legislators to shame…

Lawmakers have, to date, been reluctant to pass the bill because of a fear that it will give too much power to the media, which the BBC describes as one of the most vibrant in Africa.

Wednesday, July 23, 2008

FOI At Work: Urbana, Illinois Bonuses

For more than 10 years, Urbana employees have gotten bonuses when worker's compensation claims are lower than expected. Last year, the mayor and city clerk started getting them, too.

Mayor Laurel Prussing's salary is set by ordinance at $50,000, but city records show she and City Clerk Phyllis Clark also received $940 bonus payments.

The bonus payments, which all regular city employees get, are part of a worker's compensation self-insurance program in which city employees share 50 percent in overall savings when worker's compensation claims are lower than expected.

The bonus payments were made in November. The News-Gazette recently requested information about the payments, after learning about them, through the Illinois Freedom of Information Act.

More here.

Pennsylvania Contracts Coming Online

In Pennsylvania, the sunshine just keeps on coming these days...

The state Department of Community and Economic Development has posted more than 400 grants and contracts on the Department of Treasury's new contract database as required by the state's new Right-to-Know Law. But as of Wednesday only a few dozen grants had been posted on the website by other state agencies. And at least five agencies have not posted any at all.

Read more here.

Salary studies are public, judge says

Salary studies used by the Radnor school board when it granted raises for administrators are public records, a Delaware County Court judge has ruled.

The decision by Robert C. Wright is the latest round in a dispute that began last year when former Radnor school board member Judy Sherry asked for the data.

In a sharp rebuke to the board, which contended that the documents were not public records, Wright, in a June 30 decision, also ordered the board to pay $26,070 for Sherry's attorneys' fees and $2,901 in other costs.

The board must pay, the judge said, because in withholding one salary study that was clearly covered by Pennsylvania's Right to Know Act, it "willfully or with wanton disregard deprived [Sherry] of access to a public record" and "asserted exemptions, exclusions or defenses that were not based on a reasonable interpretation of the law."

The Radnor School District, which has spent $13,258 for its own attorney's fees and costs with more yet to come, has asked Wright to reconsider both his verdict and awarding of the fees, saying he made several factual and legal errors.

The documents' release is on hold until the judge decides. The district can appeal his ruling.

Sherry, who has clashed with the Radnor board on many issues and has long pushed for open records, said the decision will encourage the public to get involved in district affairs.

"We want to be able to hold people accountable" for their actions, she said.

In May 2007, Sherry asked the Radnor board for a Pennsylvania School Boards Association analysis of administrator salaries and an in-house document outlining compensation for administrators in neighboring school districts. She also asked the board for the cost to the district of an unrelated court filing.

The board had recently signed a contract with district administrators and had given four administrators additional salary increases. "I wanted to see exactly what facts they considered when they reached their decision," Sherry said.

More here.

Monday, July 21, 2008

FOI At Work: When Yonkers Police Shoot...

When police in one of the biggest cities in New York City's northern suburbs fire their guns, it's almost always at an animal.

Yonkers police records show officers have discharged their weapons 66 times in the last two years. Last year, the police fired 46 times: 45 were at animals including dogs and deer, one was accidental. The year before, they fired 20 times: 19 were at animals, one was at a person.

Yonkers released the data this month in response to a Freedom of Information Law request by The Journal News. The newspaper says it's investigating a man's claims that police shot him when they executed a search warrant on his apartment and shot his three pit bulls to death.

Link here.

Sunday, July 20, 2008

Bill Would Bring Smithsonian Within FOIA

The Washington Post reports on the rarest of rarities: an attempt to bring something within the FOIA...

A longtime critic of the Smithsonian Institution introduced legislation in the U.S. Senate this week that would wipe out the national museum complex's exemption from the Freedom of Information Act and the Sunshine Act.

The legislation, co-sponsored by Sen. Charles E. Grassley (R-Iowa), ranking member of the Finance Committee, and Sen. Arlen Specter (Pa.), the top Republican on the Judiciary Committee, would require the Smithsonian to hold meetings in public and make records available to the public upon request.

The Smithsonian, created by Congress as a federal trust, was exempted from FOIA in two rulings in the mid-1990s. The U.S. Court of Appeals for the District of Columbia Circuit decided FOIA would apply to the Smithsonian only if Congress changed the law to say so explicitly.

In Rhode Island, Secrecy Plagues Immigration Detentions

Since the middle of last month, at least 84 suspected illegal immigrants have been arrested throughout Rhode Island, including two highly publicized mass arrests — one at state courthouses last week.

The arrests raise many questions.

Has the federal bureau of Immigration and Customs Enforcement targeted Rhode Island for a crackdown on illegal immigration? Exactly how many people have been arrested so far this year? Where are they being detained? And, are these stepped-up raids driven by Governor Carcieri’s executive order on illegal immigration?

Unlike other law enforcement agencies that are compelled to release such information, ICE often operates in secret, say lawyers, advocates for freedom of the press and civil libertarians.

Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, said the Rhode Island raids represent “the same story” as ACLU has experienced in past dealings with ICE.

“Many detainees end up in an impenetrable rabbit hole from Alice in Wonderland,” said Brown. “They are often impossible to find, ICE is often unable to tell family members where they are held — and then, when you finally find them, a chess game begins, where these detainees get transferred to distant places across the country.”

More here.

Saturday, July 19, 2008

States Embracing Contract Transparency...

A nice look at the emerging sunshine in state governments by the Baltimore Sun...

Houston spent $33,000 on bullets this year, but "Space City" paid nearly three times that to buy horse food. And while fuel costs have increased $3 million in Missouri since 2005, at least the "Show Me State" taxpayers spent 35 percent less on contracts for barbecue and pizza.

From costly construction projects and health insurance payments to the meals bureaucrats expense when they work late, state and local governments are increasingly putting their checkbooks online - allowing regular citizens to follow the money.

Months after Maryland lawmakers approved a plan to put the state's financial information online, a member of Baltimore's City Council is proposing the same idea for City Hall.

"Sometimes a shroud of secrecy casts a bad light unnecessarily," said City Councilwoman Belinda Conaway, who plans to introduce her bill Monday. "Everything can be aboveboard, but because it's not public, people suspect that there's something wrong."

Public access advocates have cheered the trend and say the information is used by a wide spectrum of people, including nonprofit leaders, journalists and contractors. Kansas, Hawaii, Minnesota, Oklahoma and Texas have approved similar sites.

"We're seeing just a whole lot of this at the state and local level across the country in bits and pieces," said Charles N. Davis, executive director of the National Freedom of Information Coalition. "It's subject to a couple of forces. One, politics, and people embracing transparency and becoming more proactive."

More here.

Friday, July 18, 2008

FOI At Work: Pentagon Brass Seeks A Whole New Level of First Class...

The Air Force's top leadership sought for three years to spend counterterrorism funds on "comfort capsules" to be installed on military planes that ferry senior officers and civilian leaders around the world, with at least four top generals involved in design details such as the color of the capsules' carpet and leather chairs, according to internal e-mails and budget documents.

Production of the first capsule -- consisting of two sealed rooms that can fit into the fuselage of a large military aircraft -- has already begun.

Air Force officials say the government needs the new capsules to ensure that leaders can talk, work and rest comfortably in the air. But the top brass's preoccupation with creating new luxury in wartime has alienated lower-ranking Air Force officers familiar with the effort, as well as congressional staff members and a nonprofit group that calls the program a waste of money.

Air Force documents spell out how each of the capsules is to be "aesthetically pleasing and furnished to reflect the rank of the senior leaders using the capsule," with beds, a couch, a table, a 37-inch flat-screen monitor with stereo speakers, and a full-length mirror.

The effort has been slowed, however, by congressional resistance to using counterterrorism funds for the project and by lengthy internal deliberations about a series of demands for modifications by Air Force generals. One request was that the color of the leather for the seats and seat belts in the mobile pallets be changed from brown to Air Force blue and that seat pockets be added; another was that the color of the table's wood be darkened.

More here.

Michigan Supreme Court Closes Employee Info

The home phone numbers and addresses of University of Michigan employees are not public information, the Michigan Supreme Court ruled in a decision released Wednesday.

The court overturned the 2007 decision of an appeals court, which said the information was public barring "truly exceptional circumstances."

A five-justice majority of the Supreme Court found that the information doesn't have to be disseminated under the state's Freedom of Information Act. They said it meets the two-pronged legal test of being information of a personal nature, and its disclosure would be an invasion of the employees' privacy.

Where a person lives and how that person may be contacted, the justices wrote, "offers private and even confidential details about that person's life."

In reaching the decision, the justices said they were revising the prior legal definition of information considered to be of a personal nature. In addition to details of an embarrassing or intimate nature, the justices expanded the definition to include information that is private or confidential.

Releasing the employees' home phone numbers and home addresses also wouldn't shed any light on whether the university is functioning properly, the justices ruled.
"We're delighted, absolutely delighted the court recognized the importance of the privacy interests that our employees have in their home phone numbers and addresses," said U-M spokeswoman Kelly Cunningham.

More here.

Thursday, July 17, 2008

Michigan State newspaper battles on...

A legal battle between Michigan State University and its student newspaper over release of a police report about a campus assault was sent back to a lower court by the state Supreme Court on Wednesday.

The ruling left unresolved whether all or parts of the police report should be publicly released to the State News student newspaper -- even though three suspects were long ago apprehended and charged.

The Supreme Court ruled that even if details of the police report became public through other channels, the newspaper's original request for the report under the state Freedom of Information Act (FOIA) could be denied by the university. However, the court ordered the lower court to review the report to determine what portions should be released or exempted for privacy reasons.

More here.

FOI At Work: Maryland State Police Spied on War Protesters

Undercover Maryland State Police officers conducted surveillance on war protesters and death penalty opponents, including some in Takoma Park, for more than a year while Robert L. Ehrlich Jr. was governor, documents released yesterday show.

Detailed intelligence reports logged by at least two agents in the police department's Homeland Security and Intelligence Division reveal close monitoring of the movements as the Iraq war and capital punishment were heatedly debated in 2005 and 2006.

Organizational meetings, public forums, prison vigils, rallies outside the State House in Annapolis and e-mail group lists were infiltrated by police posing as peace activists and death penalty opponents, the records show. The surveillance continued even though the logs contained no reports of illegal activity and consistently indicated that the activists were not planning violent protests.

More here.

Wednesday, July 16, 2008


THE NATIONAL SECURITY ARCHIVE, an independent, non-profit research institute and library located at George Washington University, is seeking a full-time Freedom of Information Coordinator. The Coordinator manages the Archives FOIA Microsoft Access database; works with federal agencies on Archive FOIA requests and FOIA issues; counsels the public about the FOIA and conducts FOIA training; assists the Archive's legal staff with secrecy litigation and advocacy; and assists Archive analysts in crafting FOIA requests and appeals.

Applicants should have strong organizational skills and attention to detail; a demonstrated interest in current events, national security policy, foreign relations and other similar substantive areas; good interpersonal and negotiating skills; and writing experience. Applicants must have a master's degree or relevant work experience and computer literacy, including
experience with Microsoft Access and Microsoft Word. This is a full-time position. Salary commensurate with experience. Excellent benefits package available. To apply, send a cover letter, resume and list of references by July 25, 2008, via mail or e-mail to:

Sue Bechtel
The National Security Archive
2130 H St. NW, Suite 701
The Gelman Library
Washington, DC 20037
Email: sbechtel@gwu.edu

Arkansas Reporter Wins Award for FOI Work

Helena Daily World reporter Michele Page has achieved a personal zenith in her three years of journalism as recipient of the Arkansas Press Association’s Freedom of Information Award.
Page was honored at the APA’s Super Convention Friday night at the Wyndam Riverfront in North Little Rock.

On accepting the award Page said, “It’s such an honor to be recognized along those that have dedicated 50 years to journalism. They forged the way for today’s journalists and I’m very pleased to meet and be included with leaders of our industry.

“The FOIA opens government to the public and makes sure it stays there,” Page continued. “I’ll continue to fight for the people’s right to know.”

Working under the supervision of Managing Editor Randy Hogan, Page was able to get the Helena-West Helena Police Department to correct years of departmental policy where citizens and businesses were overcharged for incident reports, and pressed to see that the FOIA was upheld after the HWHPD failed to fully comply to a records request, netting a rare arrest for alleged FOIA violation.

Hogan said of the honor: “The Freedom of Information Act is a precious right and freedom that we enjoy as Arkansans and Americans. Michele has worked diligently to ensure that the residents of Helena-West Helena and Phillips County have access to all of the records they are allowed under the law. She has done an excellent job of defending the FOIA. We at the Daily World are proud of her accomplishments and congratulate her on this prestigious award.”

More here.

Sunday, July 13, 2008

A Citizen FOI Warrior in WA

My kinda guy...

A scruffy paralegal in an ill-fitting suit faced down a row of establishment lawyers in Superior Court on Friday, demanding access to the records of an association representing municipal interests and largely funded by tax dollars.

Arthur West, 47, of Olympia is a gadfly representing himself in the case, doing battle with an experienced legal team that includes a member of the Washington State Sunshine Committee, tasked with eliminating exemptions to the public records act.

His case against the Association of Washington Cities tests the reach of a decade-old court decision that the very-similar Washington Association of Counties is a public agency. A victory for West would expand the reach of the state's open government laws and would be a blow to a variety of groups that provide services to and lobby for local governments but operate largely outside of public scrutiny.

A representative of the state's newspapers, which often rely on public records and meetings laws to give the public a window on government, criticized the cities for fighting West.

"I don't see how they could deny him," said Rowland Thompson, head of Allied Daily Newspapers of Washington. The Seattle P-I is a member of Thompson's group.

"It's all public money, so I don't see how they can make the claim that they can withhold" records, Thompson said.

Friday's hearing puts the matter in the hands of King County Superior Court Judge Bruce Heller. Heller could issue a decision, since both sides largely agree on the facts, or he could decide a trial is needed to sort out the details. He did not indicate how long he would take to rule.

West argued in court that the association is the "functional equivalent" of a government entity that receives public money and exercises authority on a wide variety of issues.

"These are the people actually running our government behind closed doors," West said after the hearing.

The head of the association vehemently disagrees.

"I think he may suffer a confusion regarding advisory vs. authority," said Stan Finkelstein, the group's longtime executive director.

He said his group is merely a private association of government officials -- not governments -- which happens to carry out various public contracts and provides advice to its members and the state government.

His attorney, Steve DiJulio of law firm Foster Pepper, argued the point strenuously under polite questioning from Heller.

He called the association "a convenient contractor" for the state in its dealings with cities, and said it provides private services and gives advice but does not set regulations. He compared its role in state law with that of private-sector professional and trade associations.

According to court papers filed by West, the group is given duties in at least 50 state laws and regulations. It also has broad power to shape, but not make, appointments to state boards and set model legislation that cities have little choice but to adopt.

DiJulio contests that point, saying that a law requiring state transportation officials to work with the association was an example of a fee-for-service contract and nothing more.

"The state could have just as easily instructed the department to contract with Bechtel," he said, referring to an engineering firm that works on government contracts at all levels, including defense contracts for the rebuilding of Iraq.

West's view is somewhat different of what he calls the "shadow government."

"They have their hooks into virtually every agency of government in the state, except maybe the judiciary," he said under questioning by Heller.

Aside from DiJulio, the association's legal team includes Ramsey Ramerman, a specialist in opposing public-records requests who was appointed to the state's Sunshine Commission at the behest of the AWC and other groups representing local government agencies.

The 1999 case of Paul Telford v. Thurston County, which held the counties' association to be a public agency, outlined the four issues Heller will weigh in his decision: whether the group receives substantial governmental funding, was created by government action, exercises government authority and performs government functions.

The public records act is a creation of I-276, a 1972 citizen initiative that gave people in Washington state broad rights to review government documents and monitor government actions. Since then the law has been repeatedly weakened by the Legislature, which has added exemptions currently being reviewed by the Sunshine Committee of which Ramerman is a member.

The Association of Washington Cities has long opposed provisions of the 1972 initiative and unsuccessfully helped fight against disclosure in the 1999 Telford case. It opposed the creation of the Sunshine Commission and a recent proposal that would have required city councils and other government boards to make a recording any time they closed the doors to the public. The controversial, closed-door sessions are legal only in limited cases, but recent cases have shown that they are frequently abused. The recording would allow a judge to review the meetings when a citizen files a legal challenge.

More here.

Friday, July 11, 2008

Wisconsin Court: Economic Development Records Public

Economic development groups must abide by Wisconsin's open meetings and records laws if they closely resemble government bodies, the state Supreme Court held Friday in one of two rulings dealing with public information.

In another case, the court said officials must hand over information from closed government meetings as evidence in lawsuits.

The decisions' impact is twofold: Quasi-governmental groups brokering multimillion-dollar business deals are open to as much public scrutiny as any other government body, and closed meetings about government workers' performances or other sensitive matters aren't completely secret.

"Absolute victories for the citizens of this state," said Peter Fox, executive director of the Wisconsin Newspaper Association, which filed briefs in both cases. "It's really about citizens and ... the ability of local governments to operate fully in public view."

More here.

Missouri Judge Tosses Out E-Mail Suit, Kind of

Cole County Circuit Judge Richard Callahan has dismissed a special investigative team’s lawsuit that sought copies of Gov. Matt Blunt’s e-mails.

But the judge left open the possibility that the case could be revived if Attorney General Jay Nixon joins the suit.

In an order issued shortly after noon today, Callahan said that the plaintiff, former Highway Patrol Col. Mel Fisher, lacks legal standing to bring the suit as a special investigator for the attorney general.

Callahan said Fisher also failed to establish a personal claim by citing his rights under the state’s "Sunshine Law."

The judge stayed the effect of his order for 10 days to let Fisher amend the petition to bring the suit personally, or to let Nixon join the lawsuit. If Nixon believes he has a conflict of interest, he could seek appointment of a special assistant attorney general, the judge’s order said.

More here.

West Virginia U. Takes the Secrecy Route...

West Virginia University’s Board of Governors held two meetings this week. On Tuesday, the board selected a new interim president and approved his terms of employment as well as an agreement with current WVU president, Mike Garrison. Then, on Wednesday, the board held an emergency meeting and approved a settlement between WVU and former football coach Rich Rodriguez. But none of the actions taken by the board were listed on the meetings’ agendas. Also, the agreements approved were not available for the public to see.

More here.

Wednesday, July 09, 2008

E-Mail Retention: Not So Good

Federal officials inconsistently preserve government e-mail, creating gaps in the public record and making it difficult for the public to understand the activities of the government, according to a report released by the Government Accountability Office yesterday.

The report came before a scheduled House vote today on a bill that would create standards for the electronic storage of e-mail by federal agencies.

As the use of e-mail has increased dramatically, federal agencies are struggling to determine which e-mails can be deleted, which must be preserved as public records and how those records should be stored.

Current law gives agencies broad discretion to determine how electronic records and communications are maintained. Quality varies widely, according to the GAO.

Investigators looked at four agencies -- the Homeland Security Department, the Federal Trade Commission, the Environmental Protection Agency and the Department of Housing and Urban Development -- and found that all used an inefficient and insecure process of "print and file": printing e-mails and storing them in paper form. Only one agency, the EPA, was converting to an electronic system to store e-mail records.

More here.

Tuesday, July 08, 2008

N.C. Reforms Move On...

A Senate committee on Tuesday gave its approval to a bill that open government supporters say would put some teeth in the state's public records law.

The bill, introduced by Sen. David Hoyle, D-Gaston, would require governmental bodies to pay the legal fees of parties that win public records lawsuits against the government.

"Very few people can afford to litigate these days," said Sen. Tony Rand, D-Cumberland, in support of the bill.

The bill would also create a new open government unit within the Department of Justice that would be responsible for the education and mediation of public records and open meetings law issues.

The committee approved the bill after it defeated an amendment by Sen. Dan Clodfelter, D-Mecklenburg, that would have stripped the legal fee requirement from the bill. Clodfelter argued that judges are already allowed to assess fees under a law negotiated three years ago.

"What I don't like about the bill is that it's going to be thrown out the window now," Clodfelter said about the three-year-old law.

More here.

Thursday, July 03, 2008

A Fourth of July Message...

As we stop to celebrate our freedom, I offer a timely reminder of what too many of our citizens take for granted every day....

As newspaper readership declines in the United States, an anti-communist group here plans to distribute copies of its newspaper to North Koreans by balloon.

The newspaper will expose and condemn human rights violations in the communist country with articles written by defectors living in the South. The two-page newspaper will also describe the freedoms and affluence in South Korea, officials from the group said.

More here. Happy Fourth, everyone. And take a moment to remember how much work is done in the name of freedom, every day, around the world.


Department of Meaningless Vetoes...

Rhode Island Gov. Don Carcieri has vetoed 36 bills, including those dealing with releasing public records, distributing medical marijuana and expunging criminal records, his office said Thursday.

Carcieri sent the bills back to the General Assembly, where Democrats hold a veto-proof majority. Larry Berman, a spokesman for House Speaker William Murphy, said House and Senate leaders would meet in the next few weeks to decide what to do. They have until the beginning of the next session in January to try to override any vetoes.

Several of the three dozen bills Carcieri vetoed on Wednesday were duplicate versions from the House and Senate.

Among them was a bill to make the first major changes to the state's open records law. The proposed law would decrease the time that public agencies have to respond to requests for public records, from 10 days to seven. It also says police must release basic information about an arrest within 24 hours and orders that police release narratives of arrest reports within seven days.

Carcieri said some of that information could compromise public safety. He also said it wasn't practical to have to release information about arrests within 24 hours because, for example, an arrest could happen on the weekend when it could be difficult to accurately identify a person.

More here.

Washington S. Ct. Rules on Prisoner Access...

Per the AP...The state Supreme Court says prisons can keep government records away from inmates if authorities believe the information might be a security risk.

In a 5-4 ruling, the court says a prison's ability to intercept inmate mail does not conflict with prisoners' rights to obtain government information under the Public Records Act.

Dissenting justices say prison contraband policies shouldn't keep public records from an inmate, since the Public Records Act is supposed to trump other conflicting laws.

Thursday's case could have implications for a separate high-profile lawsuit over a prisoner's access to records. In that case, Attorney General Rob McKenna recently argued that felons have fewer rights to access government documents.

New Fed FOIA Study Out...

An Opportunity Lost...

A just completed study by the Coalition of Journalists for Open Government shows that federal departments and agencies have made little if any progress in responding to Freedom of Information Act requests, despite a two-year-old presidential order to improve service.

The CJOG findings are in stark contrast to a bullish Justice Department report made public in mid-June that claims “remarkable improvements.”

The CJOG review of performance reports shows agencies did cut their record backlog but more because of a steep decline in requests than stepped up processing of requests. It also indicated scant improvement and some regression in traditional measures of response, including the amount of time requesters have to wait for an answer and whether a request or an appeal is granted.

The Justice Department based its assessment primarily on progress agencies made toward self-established process goals. The CJOG study, using reporting requirements mandated by Congress, assessed actual performance in responding to FOIA requests.

The CJOG study looked at 25 departments and agencies that handle the bulk of the third-party information requests. It looked at but did not incorporate a comparative analysis of the performance of four agencies, including the Department of Veterans Affairs and the Social Security Administration, that include large numbers of first person Privacy Act requests in their FOIA reporting. These requests are quickly and routinely handled and their inclusion would skew a meaningful analysis of FOIA response issues. Here’s what the CJOG review found:

The 25 agencies blew an opportunity to make a significant dent in their huge backlog of requests. Those agencies received the fewest requests since reporting began in 1998 — 63,000 fewer than 2006. But they processed only 2,100 more requests than they did in 2006 when the backlog soared to a record 39%.

The backlog did fall to 33% of requests processed, primarily because of significant reductions at Homeland Security (97% to 62%), HUD (188% to 10%), and the Securities and Exchange Commission, (126 to 55%). Eleven agencies showed no improvement or greater backlogs.

Faced with a mandate to bring down the backlog and improve service, agencies cut FOIA personnel. The number of FOIA workers fell by 8%. Spending on FOIA processing was down 3% .

Agencies got even stingier in granting requests. Fewer people got all the information they sought than at any time since agency reporting began in 1998. The percent of requesters getting either a full or a partial grant fell to 60%, also a record low.

Those who did get information still had to endure lengthy delays. Fifteen of the agencies reported slower processing times than the year before in the handling of “Simple” requests and 13 showed slower times in dealing with “Complex” requests. And all 21 agencies that processed requests in the “Complex” category said they missed the 20-day statutory response deadline for at least half of the requests processed.

Those who file administrative appeals are usually out of luck. Even more so in 2007. However, a majority of the agencies did say “no” more quickly. In 2007, the percentage of appeals granted dropped to the lowest level in 10 years. Only 13% of those who appealed got any satisfaction. Of those who appealed, only 3% got all the records requested; another 10% received a partial grant.

In its report, the Justice Department noted at one point that the executive order challenged agencies to deal with the severe backlog of unprocessed requests in a manner “consistent with available resources.” The CJOG study shows that FOIA spending at the 25 agencies studied fell by $7 million to $233.8 million and the agencies put 209 fewer people to work processing FOIA requests.

A few agencies did manage to find additional resources, but most did what they did with less. For instance, Homeland Security, despite a 20% reduction in FOIA personnel, processed 23,000 more requests in 2007, a 21% increase.

The rose-colored Justice report said in boldface that an increase in the number of “incoming requests” challenged agencies on backlog reduction, but that statement is dependent on counting the combination FOIA-Privacy Act requests made to Health and Human Services and the Social Security Administration by individuals seeking personal records. Those agencies have historically handled those requests quickly, with little or no backlog.

The troubled agencies, whose performance prompted the executive order, experienced a significant drop in requests in 2007, a fact ignored by Justice. The 25 agencies in the CJOG study — all of the departments except HHS, plus 12 agencies handling at least 1,000 FOIA requests a year — experienced a 13 percent drop in requests, from 494,270 in 2006 o 431,170 last year.

The Justice report also gives credit in some places where it isn’t due. In citing specific agencies for “improvements in the area of backlog reduction” it named Agriculture, Education, and Labor. Whatever gains they made, it wasn’t in actually reducing their percentage backlog. Indeed, Education and Labor showed both a numerical and percentage gain.

The CJOG study, including a variety of tables showing both full 2007 results and comparisons by reporting categories, can be found at www.cjog.net .

Pete Weitzel, Coordinator

ACLU FOIA Request Yields Thousands of Pages

From the ACLU...

The American Civil Liberties Union today released thousands of pages of documents related to Navy investigations of civilians killed by Coalition Forces in Iraq, including the cousin of the Iraqi ambassador to the United States. Released today in response to a Freedom of Information Act (FOIA) request by the ACLU filed in June 2006, these records provide a vivid snapshot of the circumstances surrounding civilian deaths in Iraq.

"At every step of the way, the Bush administration and Defense Department have gone to unprecedented lengths to control and suppress information about the human cost of the wars in Iraq and Afghanistan," said Nasrina Bargzie, an attorney with the ACLU National Security Project. "Our democracy depends on an informed public and that is why it is so important that the American people see these documents. These documents will help to fill the information void around the issue of civilian casualties in Iraq and will lead to a more complete understanding of the prosecution of the war."

The ACLU obtained documents from eight Naval Criminal Investigative Service (NCIS) investigations. One of the files documents the investigation of the death of Mohammed al-Sumaidaie, a cousin of the Iraqi ambassador to the U.S, Samir al-Sumaidaie. In 2006, the ambassador accused Marines of "intentionally" killing his cousin and today's records shed light on al-Sumaidaie's NCIS investigation for the first time. Among the findings uncovered in this file are conflicting accounts of events, questions of credibility, possible command influence issues and cover-ups.

More here.

Now THAT is Good News!

The Meridian, Mississippi, Police Department and Lauderdale County Sheriff's Department readily complied this week to a new state law that makes law enforcement incident reports public record.

Both agencies provided full reports — complete with narrative descriptions of the incidents — within an hour of the requests.

"The information that is released through the initial incident
report in the case will not affect the investigation of that case," said Lauderdale County Sheriff Billy Sollie Wednesday. "I don't see where anything will change for us."

The new law clarifies that incident reports are public records. The reports through a narrative will give basic information when someone is arrested, such as who is involved and where and when an alleged crime took place. The bill was pushed by the Mississippi Center for Freedom of Information and other open-government groups. Law officers can withhold names of confidential informants.

More here.

Wednesday, July 02, 2008

Secret Bonus to University Prez Raises Eyebrows in Arkansas

University of Central Arkansas President Lu Hardin got an extra $ 300, 000 in private funds as an incentive to stay - an action not confirmed publicly by UCA officials until Tuesday, two months after board members met.

A top administrator at UCA said the university's faculty senate has questioned whether the lack of openness surrounding the board of trustees' action, taken during a May 2 meeting, violated state law.

More here.

Tuesday, July 01, 2008

FOI at Work: NC First Lady Travels Well...

North Carolina's first lady, Mary Easley, visited some of the finest museums in France and St. Petersburg, Russia, during the past 14 months. She and entourages dined at first-class restaurants, slept in top-notch hotels and sat in the fifth row for a Russian ballet. The travels -- a 2007 trip to France and one to Russia and Estonia in May -- cost taxpayers $109,000.

Gov. Mike Easley did not go on either trip, and neither was publicly disclosed at the time. Mary Easley did not respond to requests for an interview, but expense reports and other documents released in response to a public records request indicate the trips were considered cultural exchanges to build links between North Carolina and officials in the countries visited. The trips have so far produced no tangible benefits.

In May 2007, Mary Easley and an executive assistant traveled to Paris and Compiegne, France, "to see the ambassador and to visit major museums for sister city cultural arts" exchanges, according to the expense report filed with the state.

Once there, Easley had a round-the-clock chauffeured Mercedes-Benz that cost taxpayers more than $27,000. Taxpayers paid another $8,900 for Easley, her executive assistant and a state trooper -- along for security -- to stay in a hotel and participate in a Monet-themed tour. The trip was five months after the Monet exhibit closed at the N.C. Museum of Art.

More here.

A Rather Interesting FOI Data Request...

A Cook County judge ruled Monday that the Chicago Police Department does not have to turn over the underlying data from a controversial study on eyewitness identification methods that critics and academics have called junk social science.

Defense lawyers led by a group from Northwestern University Law School's Roderick MacArthur Justice Center sued the city and the Police Department to get the data from a 2006 study led by a Police Department lawyer.

The study purported to show that the traditional method of police lineups in which witnesses see all the subjects at once was more accurate than a method in which witnesses are shown subjects one at a time by an officer who does not know the identity of the suspect.

Although academics have dismissed the Chicago study as unscientific, several law enforcement agencies across the country have held it up as a bulwark against changing their own lineup procedures, said Scott Ehlers of the National Association of Criminal Defense Lawyers, a lobbying group that filed the suit.

In Delaware, Looking for a Few Backbones...

As dawn broke this morning, the sun set on efforts to shed more light on the workings of state government in Delaware.

As lawmakers adjourned the 2008 session, bills that would have made the legislature subject to the state's Freedom of Information Act and made it easier for citizens to challenge the withholding of records or holding of closed-door meetings died of inaction.

"We didn't get open government bills passed, so we didn't do right by the public," said Sen. Charles Copeland, R-Greenville.

Copeland and other Senate Republicans had pledged before the session began that they would work to make government more transparent. He noted that many open government bills languished and died in the Senate executive committee, chaired by president pro tem Thurman Adams, D-Bridgeville.

"There are powerful members of the committee on his side of the aisle," Copeland said.

But Democrat Karen Peterson of Stanton blamed Republicans for holding up efforts to make the legislature transparent.

With her bill to make the legislature subject to the Freedom of Information Act bottled up in Adams' committee, Peterson launched a petition effort to have it released from committee. Her effort to get the required 11 signatures failed.

"Every year I hope we get 11 people who have backbones, but it doesn't happen," she said.

More here.