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.

Tuesday, August 25, 2009

Great column on New Jersey FOI reform effort

A nice look at New Jersey sunshine reforms by Ron Miskoff, president of the New Jersey Foundation for Open Government, here:

The latest, if not the last, episode of corruption in New Jersey's political class has politicians of all stripes scurrying for ways to demonstrate that they are not part of a problem.

They have statements on this, committees on that and postures on the other thing. But it's difficult to put much faith in reforms that start only when television lights go on.

There's a common link between black-market livers and cash sandwiches, between back-channel approvals and parking-lot deals. They all happen in the dark. A culture of corruption takes hold behind closed doors, during private meetings in back rooms.

Well before the current hubbub, state Sen. Loretta Weinberg (D-Bergen) introduced legislation to update the state's Open Public Meetings Act, the Sunshine Law.

A Couple of E-Mail Stories to Pass Along...

E-mail continues to bedevil transparency, as these stories demonstrate.

In Wilmington, N.C., the city is making sweeping changes to its employee e-mail policies after a StarNews inquiry uncovered significant violations of state public records laws.

The StarNews found that city council members and many top-ranking city employees routinely shielded e-mails from a public server by marking “private” in subject lines. The e-mails included discussions about important and controversial city issues, such as the annexation of Monkey Junction, the downtown convention center, the police helicopter, lawsuits against the city and complaints about city services.

The story here, and the database of all 36,000 "private" city e-mails here.

And in Wisconsin, The state Senate will review its e-mail use and retention policies after a lawsuit uncovered how employees in one senator's office used personal accounts for state business, a spokeswoman said this week.

Carrie Lynch, spokeswoman for Senate Majority Leader Russ Decker, said some employees use private accounts when they work from home rather than logging into the state system because it is faster and more convenient.

Lynch said the practice would likely be allowed to continue, but a new policy could advise staff members how to make sure the records are maintained for public access.

"This has never really come up before," she said. "Now that it has, we'll definitely take a look at drafting a policy that would accommodate this to ensure that everyone knows the rules from here on out."

She said the review would also consider whether legislative offices must ask the Legislative Technology Services Bureau to check its backup system for records when served with an open records request.

Both issues have been highlighted by a lawsuit brought by the Democratic Party of Wisconsin that claims Sen. Dan Kapanke failed to turn over public records about two events in response to its request. Kapanke's chief of staff, Rose Smyrski, testified last week she routinely used a Yahoo account for work at nights and on weekends.

Story here.

Friday, August 21, 2009

Documents being withheld based on privilege

From the Tacoma News Tribune:
Washington’s open records law is far from absolute. Over the years, lawmakers have granted more than 300 exceptions to its broad mandate for public disclosure.

But the common theme among most of those exemptions is that they reside explicitly in state law. Government agencies and citizens may not always agree on whether an exemption should apply, but at least they are both reading from the same page.

Not so with the nebulous “privilege” invoked by the Legislature and governor. In at least three publicized instances this year – and perhaps more lesser-known ones – the legislative and executive branches have claimed an immunity that appears nowhere in statute.
More here.

Calif. bill seeks to include university foundations in FOI

California Sen. Leland Yee has introduced a bill that would open the records of auxiliaries, private foundations created to support public universities, The Los Angeles Times reported. The legislation proposes that foundations should be subject to the same disclosure requirements as universities. His bill does offer an exemption that would allow donors to give anonymously and allow foundations to withhold the names of donors as long as they didn't receive some benefit from the foundation.
As they stretch every dollar, California's public universities have understandably turned to novel ways of raising and spending money. Many have established private foundations, known as "auxiliaries," that solicit contributions from private donors and then hand that money out in the form of grants, scholarships and the like. Auxiliaries today supply the Cal State system with roughly 20% of its $6.7-billion annual operating budget.

The trouble arises when those foundations use their vague legal status -- they are private entities affiliated with public universities -- to shield themselves from scrutiny. And the public has ample reason to question how some of this money is being spent. A foundation affiliated with Sonoma State University lent money to a former member of its board, then got stuck with a bill when he could not pay the money back. A foundation affiliated with Cal State Fresno built an arena on campus and awarded some donors luxury boxes; when the Fresno Bee asked for the names of the donors and what they had contributed, it was denied, and a court held that the California Public Records Act did not cover the foundation. And a former chancellor of San Francisco City College has been indicted on charges that include allegedly diverting money from a foundation account to pay for a club membership, liquor and other expenses.
More here.

Idaho organization launches salary database

The Idaho Freedom Foundation created a database on OurIdaho.com in which people can search for the names and salaries of government employees, KTVB.com reported. The IFF obtained the data via FOIA requests, and its database contains nearly 40,000 employees.
Want to know how much money your child's teacher makes? How about the police officer who pulled you over last night?

Now you can.

A group that bills itself as a think tank dedicated to limited government has launched a salary database, that allows anyone to look up the names and pay rates for a range of government employees.
More here.

Ill. governor finally signs FOI bill

After a bill to overhaul the state's FOI law sat on his desk for months, Illinois Gov. Pat Quinn signed it into law, the Reporters Committee for Freedom of the Press reported. The law gives the public access counselor the power to issue binding opinions as well as allows fines of up to $5,000 for FOI violations.
Illinois Gov. Pat Quinn signed a bill today overhauling the state’s freedom of information law.

The legislation has been sitting on Quinn’s desk for several months since squeaking out of the last legislative session at its very end.

The Chicago Sun Times reported that the new law plugs several loop holes in the current law, including giving the state's public access counselor the power to issue binding opinions in disputes over public records. Fines of up to $5,000 for violations of the law are also now possible, the newspaper said.
More here.

Some N.J. clerks 'playing keep-away' with public records.

The Government Records Council in New Jersey has ruled on 1,503 denial-of-access complaints since 2002, and many of the rulings favor those complaining, The Star-Ledger reported. In some cases, rulings are finally granting citizens access to records they requested two years ago, records that should have been released within a week of the request. "Most of the time, they just want to keep people from getting the records in time for the next meeting or the next election," says attorney Walter Luers, who has won OPRA lawsuits against several municipalities." The people on the inside don't want the people on the outside to get the information." Not only is OPRA flawed in how clerks are handing requests, but the GRC panel is also missing two members, which has caused it to cancel meetings and thereby increase its backlog.
There are 47 items on the agenda, and in a small meeting room in Trenton, on a Tuesday morning, the Government Records Council is slogging its way through the list of complaints from citizens who have been thwarted in their attempts to access public records.

An hour into the session, it's clear: New Jersey's Open Public Records Act is flawed.

Ruling after ruling by executive director Catherine Starghill goes against agencies that have denied -- wrongfully -- public access to their records. In the GRC's final orders, municipal clerks, board secretaries and other record custodians are found to be guilty of wide-ranging and unnecessary OPRA violations.
More here.

Site tracks banned books on Google map

A Google map on the Banned Books Week Web site shows more than 120 book challenges that have occurred across the country since 2007.
Are some parts of the United States more prone to censorship than others? Not according to a new map of book censorship incidents that has just been posted on the official Web site of Banned Books Week, www.bannedbooksweek.org. The Google map displays more than 120 book challenges--from Maine to Florida and from Long Island, New York, to San Francisco--that have occurred since the beginning of 2007, http://www.bannedbooksweeks.org.

The map is drawn from cases documented by the American Library Association and the Kids' Right to Read Project, which is sponsored by the American Booksellers Foundation for Free Expression and the National Coalition Against Censorship.

The Banned Books Week Web site was launched last year to highlight the displays and events that are mounted by hundreds of bookstores and libraries during Banned Books Week, the only national celebration of the freedom to read. It includes a state by state listing to help people find displays and events in their area. This year's Banned Books Week will be celebrated from Sept. 26 through Oct. 3.
More here.

Wash. coalition releases results of candidate questionnaire

The Washington Coalition for Open Government has published its database of questionnaires answered by candidates across the state. Each was asked for their stances on six government reform issues dealing with open government.
As the 2009 campaign season heads into its crucial last months, Washington voters have a new, easy-to-use tool to help them choose candidates that are committed to open, responsive and accountable government.

Earlier this month, the Washington Coalition for Open Government (WCOG) submitted an open government questionnaire to candidates around the state and asked for their position on 6 key government reform issues identified by WCOG. Candidates were asked to take a "yes" or "no" stance on topics including recording of executive sessions of public agencies and requirement of open government training for government employees and elected officials.

Each candidate's individual survey has been posted on the WCOG Web site at www.washingtoncog.org.

"The Washington Coalition for Open Government is happy to be able to provide this service to our members and to the people of Washington so they will know more about where the candidates stand on government openness, transparency, and accountability," said Toby Nixon,
president of the Coalition. "I hope they will make note of which candidates failed to respond to our survey, and ask those candidates pointed questions about where they really stand on the people's right to know what their government is doing."

The Washington Coalition for Open Government is an independent, nonpartisan, nonprofit organization dedicated to promoting and defending the people's right to know in matters of public interest and in the conduct of the public's business. Members of the coalition represent a broad range of interests, including the news media, public affairs, law, current and retired public officials, business and labor.
More here.

Sunday, August 16, 2009

State pays over $81,500 to newspapers

The Wisconsin Department of Administration paid the Journal Sentinel $51,256 and the Lakeland Times of Minocqua $30,278 for wrongly withholding names of state employees in 2005, the Journal Sentinel reported. The money covers the newspapers' costs of lawsuits. The state unsuccessfully argued that it couldn't release names because of labor agreements with its union employees. The state (and thereby taxpayers) might pay more. The Supreme Cour ruling sent the case back to circuit court to detemine if the state has to pay the papers' legal bills during appeals from the unions. The records probably won't be released until then. A Dane County Circuit judge has ruled that the county will have to pay in an open records lawsuit brought by the Journal Sentinel, Wisconsin State Journal, WTMJ-TV and WISC-TV.
The state paid two newspapers more than $81,500 this week after improperly refusing to release the names of state employees.

The payments - which could climb higher because they don't include appeal costs - came as the Capital Times of Madison sued the state for delaying the release of public records related to judicial appointments.

An attorney representing the Capital Times said it seemed as if Gov. Jim Doyle's office was deliberately slow in providing the records, in hopes they would lose their news value. Meanwhile, a spokesman for Doyle suggested the Capital Times was trying to "pose as open records champions and cost the taxpayers some money over it."
More here.

N.J. guidelines clarify what court documents are public

In September, a new rule adopted by New Jersey's highest court will define evidence admitted in courts as "open for public inspection," the Star-Ledger reported. Private records will include financial information in divorce proceedings and personal identifiers such as credit card and Social Security numbers. Thomas Cafferty, a lawyer for the New Jersey Press Association said, "It was less than clear before what would be accessible to the public. I think the Albin report makes it clear."
For decades, some residents could not get court documents they were entitled to see because the judiciary had limited guidelines on which records were available for public viewing.

That's expected to change next month when a new rule recently adopted by the state's highest court goes into effect.

Evidence admitted in New Jersey courts are just some of the records specifically defined as "open for public inspection" in the state's new guidelines.
More here.

Details of contract for transparency site not transparent

ProPublica and other organizations requested copies of the Obama administration's $18 million contract with Smartronix, a software company hired to build the Web site "where taxpayers could easily track billions in federal stimulus money." However, the contract and related documents are heavily redacted. The General Services Administration justified the redactions by saying they are allowed if material "involves substantial risk of competitive injury" to a contractor. Of the 59-page technical proposal, 25 pages were completely redacted, and 14 pages had half or more of their content blacked out.
Back in July, a software company named Smartronix landed an $18 million contract to build a Web site where taxpayers could easily track billions in federal stimulus money. It was just another part of the Obama administration’s ongoing effort to bring transparency to stimulus spending, we were told.

But it seems the drive for transparency doesn’t cover the contract itself.

After weeks of prodding by ProPublica and other organizations, the General Services Administration released copies of the contract and related documents that are so heavily blacked out they are virtually worthless.
More here.

Fla. city installs city open-records kiosk

The City of Alachua in Florida installed a kiosk at City Hall that allows residents to search for public records without having to file a request, Alachua Today reported. The computer's search engine contains thousands of public records, including e-mails, ordinances, etc. However, the system is limited in that some records haven't been uploaded or haven't been converted into a format that is readable by the search engine. Michael Canney, a resident, said all the city's records aren't on the kiosk, including the city manager's e-mails. “To get certain public records, you have to jump through a lot of hoops and pay large amounts of money,” he said.
The City of Alachua recently installed a kiosk at City Hall for residents to get public records without having to request them from the city clerk.

Alan Henderson, deputy city clerk, said the search engine at the kiosk will eventually give Alachua residents access to ordinances, resolutions and anything considered a city public record.

The engine contains thousands of documents, but the system is limited as city officials continue to reformat and add more records.
More here.

Mo. AG says department didn't violate Sunshine Law in E. coli case

Missouri Attorney General Chris Koster says the Department of Natural Resources didn't violate open records law because no one filed a formal request for the testing results, which showed high levels of E. coli in Lake of the Ozarks, the News-Leader reported. Koster said he thinks former DNR Deputy Director Joe Bindbeutel made a "mistake" in delaying the release of the report for four weeks. Although internal DNR e-mails indicate that Bindbeutel requested a copy of the report to take to a meeting with the governor, the governor's office denies that the meeting was about E. coli. Although media requests were made for these reports, the DNR officials didn't view them as official Sunshine request.
Attorney General Chris Koster says the Department of Natural Resources didn't violate the state's open records law in delaying the release of a report showing high levels of E. coli in Lake of the Ozarks.

Koster's office has been investigating allegations that DNR violated the Sunshine Law, which is meant to give citizens and the media access to public documents upon request.

But since no one filed a formal Sunshine Law request for the monthly testing results, Koster's investigator concluded there's no evidence a law was broken.
More here.

See the full PDF of the AG's report here.

View the letter DPS sent the News-Leader requesting seven more business days to review its request for video footage from the governor's office here.

Also, AG Chris Koster: No Sunshine Law violation in E. coli-gate, St. Louis Post-Dispatch.

Delayed data on E. coli at lake was wrong, not illegal, Koster says
, Kansas City Star: "A DNR e-mail obtained by The Kansas City Star shows that the agency understood it had received numerous requests for test results. According to the e-mail by a DNR employee: 'In a nutshell, I have had email inquires from four reporters since May 26 and phone calls from those four plus a couple others … for information, interviews or data.'”

Koster has more work to do on E-coli scare at Lake of the Ozarks
, Kansas City Star: "Specifically, Koster didn't have all the facts he needed before concluding that the DNR did not violate the Sunshine Law regarding pollution reports about the Lake of the Ozarks. Koster told a Kansas City Star reporter on Thursday that he did not know of a DNR e-mail that detailed requests for the information about E-coli levels in the lake back in late May. He said he would look into the new information, and he should."

Thursday, August 13, 2009

Data reveals summer spike in NYC homicides

FOI at Work!
Two University of Missouri graduates Jo Craven McGinty and Brian Hamman, are working on the New York Times' analysis of murder rates. The information was compiled from open records requests from the New York Police Department, and a searchable database is now available to readers.
There were more homicides in September than in any other month last year: 52. Next highest was August, with 51. Variations, of course, exist. There were 48 homicides last March, for instance.

Still, the prime time for murder is clear: summertime. Indeed, it is close to a constant, one hammered home painfully from June to September across the decades. And the breakdown of deadly brutality can get even more specific. September Saturdays around 10 p.m. were the most likely moments for a murder in the city.
More here.

Ala. lawmakes can use private e-mail as Palin did, judge rules

A Superior Court judge ruled that Alaska state law doesn't prohibit the use of private e-mail accounts to conduct state business, the AP reported.

This is why states must look hard at outlawing the use of private e-mail by elected officials to conduct public business. This is a fairly straightforward legislative fix, no? No g-mail to discuss public business! Note that the court here is all but calling for the legislature to fix this.
A judge ruled Wednesday the Alaska governor's office can use private e-mail accounts to conduct state business, as former Gov. Sarah Palin did.

Superior Court Judge Jack W. Smith said in his ruling there is no provision in Alaska state law that prohibits the use of private e-mail accounts when conducting state business.

The case stemmed from a lawsuit filed by Anchorage resident Andree McLeod, who contended such use of private e-mails denies citizens the right to inspect public records.
More here.
Also, Court: Palin's e-mail practices not a violation of open records law, Reporters Committee for Freedom of the Press.

Monday, August 10, 2009

Footage of governor's office entrance denied in Sunshine request

Missouri Capitol Police have denied the News-Leader's request for video footage from cameras aimed at public entrances to the governor's office in the state Capitol. They cited an exemption passed after the 2001 terrorist attacks. "More specifically, showing areas which are covered by our cameras would reveal areas, (if any) which may be blind spots, thus compromising security at the Missouri Capitol," Capitol Police Capt. Paul Minze wrote in a July 31 response letter. The News-Leader submitted a formal appeal, which is pending. The newspaper is trying to verify whether a meeting between DNR Deputy Director Joe Bindbeutel and the governor took place. E-mails indicate it did, but the governor's office denied that such a meeting -- to discuss the high levels of E. coli in Lake of the Ozarks -- took place.
Missouri Capitol Police have cited a post-Sept. 11, 2001, terrorism exemption in the state's open records law in denying the News-Leader access to surveillance tape footage of the entrances of the governor's office.

Under a Sunshine Law request for public records, the newspaper sought to inspect archived video footage during various dates in June from cameras aimed at two public entrances in the governor's second floor office in the state Capitol in Jefferson City.

The News-Leader is seeking access to the video as part of its ongoing investigation into what role -- if any -- Nixon's office played in the Department of Natural Resources withholding a report for four weeks in June showing dangerously high levels of E. coli in Lake of the Ozarks.
More here.

Prison corporation subject to public records laws

The Tennessee Court of Appeals ruled that prisons run by Nashville-based Corrections Corporation of America must adhere to public records laws, The Tennessean reported. Alex Friedmann, associate editor of Prison Legal News, sued for access to the CCA's government contracts and other records. "With all due respect to CCA, this court is at a loss as to how operating a prison could be considered anything less than a governmental function," Judge D. Michael Swiney wrote in the opinion. However, the court ruled that the Private Prison Contracting Act limits the records that the corporation must make public.
Prisons run by Nashville-based Corrections Corporation of America perform a government function and must follow public records laws, the Tennessee Court of Appeals has ruled.

The prison giant appealed the ruling issued last year by Davidson County Chancellor Claudia Bonnyman, who ruled that the corporation was the functional equivalent of government and that its administrators must turn over all records requested by prison reform advocate Alex Friedmann.

Friedmann, the associate editor of the monthly publication Prison Legal News, sued for access to several types of records, including CCA's government contracts, legal settlements and cases where CCA was sanctioned or fined.
More here.

Calif. bill to relieve losing FOIA plaintiffs

A California bill recently signed by Gov. Arnold Schwarzenegger will relieve losing FOIA plaintiffs from having to pay attorneys' fees, the Reporters' Committee for Freedom of the Press reported. Fees could only be awarded if the court decides that the lawsuit was frivolous and without merit. The bill was passed in an effort to "curb the chilling effect that can accompany the assignment of extensive fees to plaintiffs who unsuccessfully sue the government to enforce the California Public Records Act." The law takes effect Jan. 1.
A California bill that will relieve losing plaintiffs in Freedom of Information Act lawsuits of having to pay attorney's fees passed the state's legislature last month. It is now awaiting a signature from the governor.

Under the proposed law, governments that prevail on an "anti-SLAPP" motion in FOIA cases will not be able to collect attorney's fees for claims brought against them in good faith. Fees could only be awarded in limited situations, such as when the court decides the action is frivolous and without merit. The state anti-SLAPP law allows defendants to have frivolous suits dismissed early.
More here.
Also, New Calif. law limits cost in public records fight, San Jose Mercury News.

Wash. organization asks governor's office to reconsider records denial

The Evergreen Freedom Foundation of Washington is asking Gov. Gregoire to reconsider the decision to deny releasing documents related to the governor's executive order concerning climate change. The EFF requested all documents related to the executive order's drafting and implementation, but the governor's office is withholding 48 documents and citing "executive privilege" and "deliberative process" as reasons. However, the EFF says there's no "executive privilege" exemption in the Public Records Act, and because the executive order has already been published the "deliberative" exemption doesn't apply.
Does the governor's executive privilege exempt her from the state's Public Records Act? Looks like we'll find out.
Climate change was a hot topic during the 2009 legislative session. Gov. Gregoire had requested legislation that ultimately died in the Senate. Not to be stopped, the governor issued Executive Order 09-05 to address climate change. Curious to see the backstory, EFF filed a request for documents related to the executive order's drafting and implementation. We've received many records, but the governor's office has refused to release 48 documents. The denial cites several reasons, including "executive privilege" and "deliberative process."
There's a problem with this denial. There is no "executive privilege" exemption in the Public Records Act. And once the executive order was published the "deliberation" exemption no longer applies. (This isn't the first time Gov. Gregoire has claimed the phantom "executive privilege" exemption.)
More here.

Police car camera reveals cover-up

Video from a dashboard police camera revealed that Hollywood, Fla., police officer Dewey Pressley wrote a fake police report to cover up for another officer, the AP reported. Officer Joel Francisco rammed into the back of Alexandra Torrens-Vilas' car. Torrens-Vilas was charged with a DUI and traffic violation, but "the state attorney's office dropped the charges, saying the video raised questions about the officers' account of the crash." "I'm gonna tell you exactly how to word this so we can get him off the hook," Pressley says on the video. Later he remarks: "I don't like making things up ever because it's wrong but if I have to bend it a little to protect a cop I'm gonna."
Veteran Hollywood Police Officer Dewey Pressley said he hated lying. But if bending the truth a little would keep a fellow officer out of trouble, well, he was all for it.

A dashboard police camera video that surfaced recently showed Pressley chuckling as he wrote a fake police report, calling his creativity "a little Walt Disney" so another officer wouldn't get in trouble for rear-ending a 23-year-old woman's car in February.

Pressley and four others have been suspended with pay pending an investigation after video of the accident and the officers' attempt to cover it up became public last week, the latest Internet sensation in a line of unsettling police dashcam videos.

More here.

Monday, August 03, 2009

Staffers say S.C. governor used private e-mail for public business

Will Folks, former spokesman for South Carolina Gov. Mark Sanford, says he checked his private e-mail at least 10 times a day when working for the governor, McClatchy-Tribune News Service reported. Of the 3900 pages of Sanford's messages provided to The State newspaper, 174 e-mails were from his private account. But those didn't contain much discussion of state business. Current Sanford spokesman Joe Sawyer says the office doesn't use private e-mail to get around open records laws. Regardless, Ashley Landess, president of the South Carolina Policy Council, said her group will now ask other state government leaders to turn over private e-mails concerning public matters.
Former staffers for South Carolina Gov. Mark Sanford said they routinely used private e-mail accounts to discuss sensitive political and policy decisions with Sanford.

The governor's office denies the practice was used to shield those communications from the public.

The state's Freedom of Information Act makes any discussion of state business on state computers a public document.
More here.

Fox loses bailout-related Federal Reserve suit

A U.S. District Court judge ruled that the Federal Reserve Board had the right to withhold bailout-related documents from Fox News, the Reporters Committee for Freedom of the Press reported. Judge Alvin Hellerstein said the records fell under the exemption that protects trade secrets and confidential information and that the 12 regional Federal Reserve banks are not government agencies (therefore, the board doesn't have to search the banks' records in response to Fox's request). Fox is likely to appeal and has another pending FOIA suit against the Treasury Department for other bailout records. Bloomberg News and The New York Times have simliar pending requests.
A federal judge ruled against Fox News Thursday in a key Freedom of Information Act case involving bailout-related documents held by the Federal Reserve Board.

Judge Alvin K. Hellerstein in the U.S. District Court in Manhattan ruled that the Federal Reserve Board in Washington had properly withheld more than 6,000 pages of documents from Fox because the records fell under the FOIA exemption protecting trade secrets and confidential information.

Fox sought information about the Federal Reserve’s emergency lending program, known as the discount window.
More here.

Air Force One flyover photos released

In response to an FOIA request, the Department of Defense released 146 photos of the controversial Air Force One flyover on April 27.
Responding to a Freedom of Information Act request, the Department of Defense has released 146 photographs that were taken during the photo-op involving Air Force One and the Statue of Liberty on April 27. President Obama was not on the plane when the photos were taken.

The low-flying plane caused panic among New Yorkers because it was a reminder of the September 11, 2001 attacks. The controversial flight resulted in the May resignation of White House Military Office Director Louis Caldera.
More here.

Nev. AG rules governor's personal e-mails aren't public

The Nevada attorney general's office decided that personal e-mails on Gov. Jim Gibbons' state computer are not pubic records, the AP reported. Reno Newspapers Inc. is seeking all e-mails Gibbons sent on his state computer and asked for a log of recipients, senders, subject matters and reasons public access was denied. The brief from the AG's office said the state has "no pre-litigation duty" to create the requested index.
The Nevada attorney general's office says personal e-mails on Gov. Jim Gibbons' state computer are not public records.

In a Nevada Supreme Court brief, the AG's office says personal messages or those not concerning public business are not subject to a public records request.

The filing is in response to an appeal by Reno Newspapers Inc., which is seeking all e-mails sent by Gibbons on his state computer from January to June 2008.
More here.

Saturday, August 01, 2009

More transparency equals more customer satisfaction

ForSee Results conducted survey research that concluded that "perceptions of federal government Web sites' transparency online is an important driver of online satisfaction, which in turn drives trust, future participation and future collaboration," Nextgov reported. ForSee, which issues reports on public opinion about federal Web sites, plans to start using a transparency metric into the satisfaction index as early as next quarter.
Agencies can fulfill the president's vision of open government by posting large amounts of data online quickly and making it easy to find, a group that tracks the public's satisfaction with government Web sites reported on Tuesday.

By boosting the "thoroughness and accessibility of information made available online," or what is described as "online transparency," agencies can achieve the open government principles that President Obama outlined on his first full day in office, according to a report released by ForeSee Results, a market research firm that, in conjunction with the American Customer Satisfaction Index, issues quarterly reports on public opinion about federal Web sites.
More here.

Most states fail to use Web to inform about stimulus spending

Good Jobs First, a non-profit research center based in Washington, D.C., studied state Web sites to determine the quality and quantity of disclosure related to how stimulus funding is being divided up among communities, organizations and individuals. Each state was graded twice on a scale of 0 to 100. Only six states scored 50 or better for their main American Recovery and Reinvestment Act site. Thirteen scored 50 or better for their highway reporting. Illinois scored a zero in both categories because it only provides national figures.
While some states have created impressive websites to disseminate information about their share of the $787 billion American Recovery and Reinvestment Act (ARRA), most are failing to make effective use of online technology to educate taxpayers about the impact of economic stimulus spending. This is the finding of Show Us the Stimulus, a report released today by Good Jobs First, a non-profit research center based in Washington, DC.

“Many states are failing to support President Obama’s vow that the Recovery Act will be carried out with an unprecedented level of transparency and accountability,” said Good Jobs First executive director Greg LeRoy. “By failing to use broadly available web tools, they are making it more difficult to measure the success of ARRA in mitigating the effects of the recession.”
Read the full report here.

Implementation of FOIA falls short

The cover story in the Summer 2009 issue of Administrative & Regulatory Law News by the American Bar Association focuses on the poor state of FOIA. Author Daniel Metcalfe details how the 2007 FOIA amendments and Obama's FOIA policy, however promising they might have seemed, are falling short when it comes to implementation. Individual agencies have not changed their FOIA procedures to include the 2007 changes. For example, the Justice Department's FOIA Reference Guide hasn't been updated since May 2006. It's been particularly confusing for requesters who want records that are held by government contractors. Because of outdated regulations, the requesters don't know whether to send the request to the government agency or directly to the contractor. Metcalfe believes the Holder FOIA Memorandum could have been stronger if it hadn't been put together so quickly. The memorandum does not mention the importance of all agencies updating their FOIA regulations or the long backlogs of pending FOIA requests. Also, Metcalfe writes, "the Holder FOIA Memorandum by its terms applies itself to pending litigation only if a half-dozen lawyerly hedges are first satisfied."
The past eighteen months have been an exceptionally promising time for the Freedom of Information Act and for those who look to it to shine a bright light on the world. First Congress amended the Act with a package of amendments designed entirely to aid FOIA requesters, improve agency FOIA performance, and foster greater disclosure. Then a president who has declared that he wants to run “the most open administration in history” was elected to replace a president whose administration seemingly “never met a secret it didn’t like.” See, e.g., The Nature of Government Secrecy, 26 Gov’t Info. Quarterly 305, 307 (2009).

But as often is said of expected improvements in such areas of administrative law, “the devil’s in the details.” And when it comes to the FOIA, those devilish details are most often found in the quality of the implementation of new provisions and policies, on a governmentwide basis, and the timeliness, comprehensiveness, and effectiveness with which that is achieved. That is where the brightness of promised sunshine can readily fade if a new presidential administration is not pragmatic and careful. In this case, the badly incomplete implementation of the FOIA amendments made by Congress in 2007 foreshadowed no less.
More here.

Judge temporarily halts release school employees home addresses

After Pennsylvania State Education Association's petition to exempt school district employees' home addresses from public records, a state appellate court judge issued a temporary halt and is expected to schedule a hearing, the AP reported. The state's revised Right-to-Know Law exempts the home addresses of judges, law enforcement officers and minors from public records. The state's largest teachers' union wants the same treatment for school employees.
A state appellate court judge has ordered a temporary halt to releasing school district employees' home addresses listed on records requests made under Pennsylvania's new Right-to-Know Law.

The order issued Tuesday by Commonwealth Court Senior Judge Rochelle Friedman was made in response to a petition brought late last week by the state's largest teachers' union.

Friedman was expected to schedule a hearing on the Pennsylvania State Education Association's request to permanently end the release of school employees' home addresses.
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Judge halts release of road builder's records

A Franklin County Circuit judge in Kentucky halted the release of statements that Leonard Lawson, a prominent road builder, made to investigators in a 1983 antitrust case, the AP reported. Lawson is now facing unrelated federal charges of conspiring to steer $130 million in state road contracts to his companies. The Courier-Journal of Louisville, the Lexington Herald-Leader and The AP asked for the 1983 statements, but Lawson asked for the records to be kept from the public so that they wouldn't hurt his chances of getting a fair trial.
A judge issued a temporary injunction Wednesday to halt the release of statements a prominent Kentucky road builder made to investigators years ago.

Franklin County Circuit Judge Thomas D. Wingate cited the privacy interests of the road builder, Leonard Lawson of Lexington, in his ruling. Wingate said if the statements were made public, Lawson could face irreparable harm.

Not releasing them would preserve the status quo, Wingate said in a 16-page ruling.
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Court decides to rehear Texas open meetings law case

The U.S. Court of Appeals in New Orleans will hear a case on the constitutionality of the Texas Open Meetings Act that was previously decided by a three-judge court panel, The Reporters Committee for Freedom of the Press reported. The ruling in Rangra v. Brown essentially said that the open meetings law was in conflict with elected officials' freedom of speech because the law made it a crime for a quorum of them to discuss government business outside of public meetings. Several friend-of-the-court briefs have been filed on behalf of the Texas Attorney General's office, which asked for the reconsideration.
A federal appellate court rightly decided this week to re-hear a case on the constitutionality of the Texas Open Meetings Act.

The U.S. Court of Appeals in New Orleans (5th Cir.) took the unusual and laudable step of granting a petition for en banc review, meaning the full court will now consider a case that a three-judge panel of the court previously decided.

The Texas Attorney General’s office asked the court to reconsider its previous ruling in Rangra v. Brown, which said the Open Meetings Act infringed on elected officials' free speech rights by making it a crime for a quorum of them to discuss government business outside of a public meeting.
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Judge temporarily blocks names of Ref. 71 signers

A federal judge issued a temporary restraining order in response to a Protect Washington Families request to keep the names and addresses of those who signed Referendum 71 from the public, the Seattle Times reported. It will remain until the hearing set for Sept. 3. The Secretary of State Office admitted that it has no statutory authority to withhold the names but didn't pan to contest the TRO effort. However, U.S. District Judge Benjamin H. Settle wrote that the group demonstrated "a reasonable likelihood of irreparable harm if the names are released."

Protect Marriage Washington submitted 138,500 signatures to get Referendum 71, which would repel a law giving gay couples marriage-like benefits, onto the November ballot.
A federal judge in Tacoma has temporarily blocked release of the names and addresses of those who signed Referendum 71, which would repeal a law giving gay couples new marriage-like benefits.

U.S. District Judge Benjamin H. Settle this afternoon granted a temporary restraining order requested by Protect Washington Families to stop the Secretary of State's Office from making the signers' names public.

The TRO will remain in place until a hearing set for Sept. 3.
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