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.

Wednesday, November 25, 2009

Celebrating Unsung Heroes in the Fight for Open Government

The American Society of News Editors announced next year's national Sunshine Week will highlight local heroes across America who have played significant roles in fighting for open government. National Sunshine Week will be March 14 - 20.

"There are a lot of unsung heroes in the battle for freedom of information, and we plan to use next year's Sunshine Week to bring attention to those who have fought tirelessly for open government,"said ASNE President Marty Kaiser.

"They might include the average citizen who forced elected officials to open their meetings to the public," said Kaiser, "or perhaps a homeowner who used freedom of information laws to reveal environmental dangers in his neighborhood. A 'local hero' could even be a civic group or an association that pushed for 'sunshine laws that shed more light into the dark corners of government."

For more information click here and here.

Friday, November 20, 2009

Investigative Team Finds Pennsylvania Lacking in Transparency, Despite New Right to Know Law

Pittsburgh's Team 4 reports that despite a new Right to Know Law, aimed at improving Pennsylvania government transparency, the Legislature is not being forthcoming. For example, the Legislature doesn't post online all of its leases for lawmakers' district offices, citing the need to redact signatures from the leases, even though Team 4 reports the Legislature promised to post the records online. Get the full report here.

The investigative team wanted online access as part of its investigation that asks, "With our ability now to e-mail and get things done on the Internet, why do lawmakers still have so many district offices?"

Pennsylvania legislators are allowed to make their own deals with landlords for their district offices. An investigation into relationships found that 15 lawmakers in Western Pennsylvania have accepted campaign contributions from their district office landlords, and one state senator even had a financial interest in the group owning the building from which he leased his district office. Get the more details here.

Click here for the interactive map of district offices.

Free Legal Help to Online Journalists

The Citizen Media Law Project announced the launch of the Berkman Center for Internet and Society at Harvard University's Online Media Legal Network (OMLN), a new pro bono initiative that connects lawyers and law school clinics with online journalists who need legal help. OMLN will provide free assistance on a variety of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.

Get more details here.

Bruce and Sara Schundler: Champions of Mesa Verde National Park and FOIA

Heroic FOI work is being done by former NJ public official, Bruce Schundler, and his wife as they seek accountability at the Mesa Verde National Park.

Initially trying to avoid the bureaucratic costs of a FOIA request but ultimately forced to file a formal FOIA request and not seeking any statutory fee waivers, the seasonal park ranger wanted information regarding sister relationships at the park and the travel expenditures and habits of Superintendent Larry Wiese. But, as he wrote to Jack O'Brian of the Intermountain Regional Office of the National Park Service, Mesa Verde National Park officials acted under "a veil of secrecy about everything, and an undercurrent of fear and intimidation if anyone asks for information or if any divulges virtually anything but the most routine information."

Schundler also wrote to Alexandra Mallus of the Department of Interior regarding the personal toll that his FOI efforts had taken amidst rumors that Wiese "let it be known that he doesn't want my wife, Sara, and me to be hired again as seasonal interpretive rangers... Perhaps now you can appreciate why sometimes trying to make government open and transparent can be not only frustrating, it can be painful, it can get personal, and it can have financial consequences."

Schundler hosts a website chronicling his FOIA struggles. Although he was granted his modified and revised request in full, Schundler is appealing with the Department of Interior regarding the amount and quality of information provided pursuant to his request. Schundler also chronicles how, in the midst of Schundler's FOI requests, Superintendent Larry Wiese resigned his post.

Check it out, click here.

Texas Cities to Challenge State Law Requiring Open Government Meetings

Texas cities Pflugerville and Rockport as well as council members from 18 others will challenge the state law requiring open government meetings in a lawsuit to be filed in federal court in Pecos before the end of the year.

The Fifth U.S. Circuit Court of Appeals dismissed a similar lawsuit on the grounds that former Alpine council members lacked standing to sue.

Get more here.

West Virginia Lawmakers Suggest Revising State FOIA Statute

West Virginia state representative and House Judiciary Chairwoman Carrie Webster says the legislature should revisit the many exemptions and exceptions made to the state's Freedom of Information Act.

Webster's statement comes on the heels of a West Virgnia Supreme Court decision in which 13 emails between former Chief Justice Elliott "Spike" Maynard and Massey Energy CEO Don Blankenship are not public records. In her dissenting opinion, Justice Margaret Workman wrote that the West Virginia Freedom of Information Act should be changed to allow consideration of the the context in which the records are produced when deciding if they qualify as public records.

As originally enacted in 1977, the West Virginia Freedom of Information Act contained eight reasons to withhold information from the public. Since then, more than 75 exemptions have been added to the FOIA statute, according to a 2007 review by The Associated Press.

Get more information here.

FOIA Suits Filed to Gain Information About Federal Bailout Programs

Public interest investigation group Judicial Watch has filed two new FOIA lawsuits against the Department of the Treasury and the Federal Reserve for their respective failures to provide information about the federal government's bailout programs.

The group filed a request with the Treasury Department on June 19, 2009 relating to a congressional briefing on the financial crisis held on September 18, 2008. The Treasury Department acknowledged receipt of the FOIA request on June 22, but has not yet produced any documents or indicated when documents will be provided.

Similarly, Judicial Watch made a FOIA request with the Federal Reserve on September 2, 2009, seeking access to visitor logs for meetings with Chairman Ben Bernanke and advisor Kevin Warsh from August 2007 to the present. The Federal Reserve acknowledged the request, but has not yet produced any records.

For more information, click here.

Wisconsin Legislator Wants Better Access to Death Information

Wisconsin state Senator Cale Case is proposing legislation to require coroners to "furnish as much information as is not privileged or confidential by law and shall use redaction as necessary to allow the fullest disclosure authorized by law." Case says death investigations have become less accessible to the public as technology and investigative techniques improve, and notes that it's a matter of public safety that coroners and investigators be held accountable to the public.

Get more information here.

ACLU Urges Gates to Release Photos of Prisoner Abuse, Despite New Exemption Under FOIA

The ACLU is urging Department of Defense Secretary Robert Gates not to exercise the authority granted him under a Homeland Security appropriations bill signed by President Obama to continue suppressing photos of prisoner abuse. The amendment allows the DOD to exempt photos from the Freedom of Information Act.

Click here for more.

Tracing the Source of Food-Borne Illnesses in Schools

USA Today investigated government-run school lunch programs and found schools have virtually no way to know where all the food on any given lunch tray comes from because there are so many processors and distributors involved. Add to that no timely way to check the health and safety records of those companies supplying the food and a poor alert system for any problems found, and you've got a recipe for widespread food-borne illness outbreaks like the one that hit Racine, Wisconsin in October 2007 when 101 children became ill after eating tortillas served in the school lunch program.

Read all about it and get links to documents obtained by USA Today here.

Alaska's "Going Rouge" in Responding to Palin Administration Records Requests

Alaska Governor Sean Parnell wants even more time to respond to records requests pertaining to Palin administration e-mails and other information, even though some requests have been pending for more than a year.

According to the Anchorage Daily News, the excuses range from too many requests, too complicated requests, and too voluminous requests to requests that require an attorney to review the documents individually for privacy and executive privilege issues.

For more on the delayed records response from the Alaska state government, click here.

FOIA at Work: FBI watched Studs Terkel

The late Chicago author Studs Terkel, whose work focused on working people and the downtown, was watched by the FBI. An FBI file released to NYCity News Service under the FOIA also shows Terkel once applied for a job with the FBI, but was turned down.

Get more here.

Friday, November 13, 2009

Investigation Finds Felons Working in Higher Education

Since Utah enacted the Higher Education Criminal Background Checks bill, effective May 1, 2009, Weber State University's The Signpost found that eight individuals with felonies or serious misdemeanors were employed by the university. Three of those individuals no longer work for the school.

The law requires criminal background checks for new employees in higher education. Anyone applying for a position that would have "significant contact with a minor or a position that is security-sensitive" must submit to a criminal background check as a condition of employment.

Weber State University takes electronic fingerprints from applicants and sends them to the Utah Bureau of Criminal Identification, using a federal criminal database, before making a final offer of employment.

Read more from the two-part investigative series: Part 1 and Part 2.

Chicago's Mayor Daley Sued for Olympic Bid Information

Non-profit Judicial Watch is suing Chicago's Mayor Daley and his office for failing to respond to a FOIA request for access to public records regarding Chicago's bid to host the 2016 Summer Olympics.

The request seeks all correspondence between the Mayor's Office and President Obama, Michelle Obama, and White House staff regarding the bid.

More here.

A Terrible Setback in West Virginia

The West Virginia Supreme Court ruled that public officials and employees can keep their person emails secret.

The Associated Press had sued to gain access to 13 emails between former Supreme Court Chief Justice Elliott "Spike" Maynard and Massey Energy chief Don Blankenship, but the court ruled 4-1 that none of the emails are public records.

Justice Robin Davis quoted an Arizona Supreme Court decision noting that the definition of a public record "does not encompass documents of a purely private or personal nature."

More here.

Wednesday, November 11, 2009

Most Complained-About Chicago Cops List Remains Closed

A list naming the 662 Chicago Police officers with 10 or more complaints filed against them will remain closed.

A journalist and 28 Chicago alderman sought access to the list compiled in connection with a 2004 suit against the Chicago Police Department.  Because that case has been settled, the federal appeals court ruled sua sponte that the journalist and alderman lacked standing to sue. 

The Fraternal Order of Police fought the release of names on the grounds that most complaints filed against police officers are eventually ruled unfounded.   The journalist and alderman counter that the court overlooked the public's interest in evaluating questionable police performance.

Get more here

U.S. Customs and Border Protection Lags Behind Technology

Click here for more on The Texas Tribune's difficulties in getting a FOIA request filed with the U.S. Customs and Border Protection.   It seems the office won't accept requests electronically and by fax only in case of an "emergency," leaving open who says it's an emergency and what such an emergency is.  

Following the Money Trail... At Great Expense

Missouri attorney Noah Wood is trying to collect a debt owed to his firm by a former Libyan-backed company in the U.S., and he'd like to get documents from the Treasury Department showing where perhaps millions of dollars of once-frozen assets are now.

But the Treasury Department says Wood's request will cost him $522,886 to comply with the four-year old FOIA request, even though Wood says a former Treasury Department official has "basically told them the exact file cabinet it was in." 

Wood is suing the federal government to comply with the FOIA request and to reduce the bill.  

Get more information here

Not Forgetting the Elephants

The Brookfield Zoo in Illinois has denied Suburban Life's  FOIA request for the necropsy report for Affie, one of the zoo's African elephants.  In Defense of Animals, a California-based animal advocacy group, also sought the report regarding Affie's sudden death last May from heart failure at age 40.

The Chicago Zoological Society responded to the records request, denying the information on the grounds that it is a private sector, not-for-profit corporation that manages Brookfield Zoo for the Cook County Forest Preserve District.  Accordingly, the Chicago Zoological Society says it is not subject to FOIA.  

Suburban Life says it will send its FOIA request to the Cook County Forest Preserve District instead. 

Get more here

A FOIA Request Yields a Cost Demand Figure with Two Commas in it!

Nearly $7 million dollars, with more than $3 million as a down payment.  That's the amount the Michigan Department of State Police is demanding in response to the Mackinac Center for Public Policy's FOIA request for documents regarding the state's handling of federal security grant money from 2002 to the present.  

The Department of State Police says the records request for all spending reports regarding federal homeland security grants from 2002 to the present amounts to more than 2 million pages.  

Get more here

New Jersey Use-of-Force Reports are Public Records

A New Jersey appeals court panel held that police use-of-force reports are public records, upholding a 2008 Superior Court ruling that West Milford must turn over the reports to Martin O'Shea, an open-records activist.  

The town sought exemption for the records under New Jersey's Public Records Act as "criminal investigatory records," but that argument was rejected.  

More here

Maryland County Adopts Triage Approach for Records Requests

Allegany County will begin using a "triage concept" for evaluating requests under the Maryland Public Information Act to categorize requests as routine or complex and respond accordingly.

The change comes after a public information officer and county attorney attended a training seminar presented by Assistant Attorney General William Varga. 

Allegany County will not be adopting a recommendation to receive or respond to records requests via email.  

Get more here.

Assessing the Cash for Clunkers Program

Through a FOIA request, the Associated Press obtained information about the Cash for Clunkers program, covering 677,081 trade-ins through October 16.  

They discovered that the most common deal was buyers trading in their old Ford 150 pickups for new Ford 150 pickups.  The new trucks boast a fuel economy of less than 20 mpg, and just 1 to 3 mpg better than the old trucks.

Overall, the AP reports taxpayers subsidized deals totaling $562,500 for new cars and trucks that got worse mileage than the trade-ins. 

Click here for more details

Sunday, November 08, 2009

South Carolina Local Governments Post Check Registers Online

Fifteen local governments in South Carolina have posted their spending details online as part of a spending transparency initiative.  

Those governments include: the counties of Aiken, Anderson, Charleston, and Dorchester; and the municipalities of Aiken, Cayce, Charleston, Chesnee,  City of Georgetown, Irmo,  Myrtle Beach, Surfside Beach, and Turbeville.  The Holly Springs Fire-Rescue District and the Berkeley County School District have also posted their expenditures online.

Click here for more info.

Landmark Payout in Washington State for Public Records Law Violations

The Washington Department of Social and Health Services (DSHS) will pay $525,000 to three girls abused by their foster father for wrongfully withholding public records from them.  

The payout stems from a lawsuit filed by three girls who endured years of abuse at the hands of their foster father, despite complaints filed with the state's Child Protective Services.  When the girls' attorney noticed documents missing in their records request, they sued for violations of the open records laws.   A King County Superior Court judge agreed that DSHS had violate the Public Records Act by improperly withholding records from the girls.  

DSHS maintains that it did not intentionally withhold any records, but that records were missing due to technical errors in response to a voluminous records request.

The payout is the largest sum DSHS has paid in a public records case.

Get more information here

Wednesday, November 04, 2009

American Small Business League to Recoup Legal Fees from the DOJ

Now that the Small Business Administration (SBA) has dropped its appeal of a California federal court's legal fees award, the American Small Business League will collect its attorneys' fee award from the Department of Justice.  

The case stemmed from the SBA's denial of the League's request for names of firms receiving small business contracts and the amounts awarded in 2005 and 2006.  The SBA claimed it didn't have records of the names and that the information was stored at the General Services Administration.  The Court found the SBA's argument "curious" and awarded the SBA to hand over the records and pay the League's attorneys fees in May 2008.  

Click here for details on what the League says the records reveal about the Bush administration. 

Florida Professor Sues EPA over FOIA Request for Asbestos Information

Miami-Dade College professor Mario Sanchez is suing the Environmental Protection Agency because it failed to release information about crushed asbestos pipe that was found on city property in 2005.  The property is slated to become the Veteran's Community Park.

Sanchez had filed a FOIA request seeking all EPA documents concerning the Marco Island property from January 2005 to July 31, 2008.  He claims his request was denied because people being investigated by the EPA might be embarrassed if the information becomes public.

The city spokeswoman says there is nothing to substantiate Sanchez's allegations.  

Get the full story here.

Editorial: Higher-Education Foundations Should be Transparent

The Modesto Bee's publisher and president says the funding practices of higher-education foundations should be more transparent.  The non-profit foundations are typically controlled by campus presidents and board members and are funded by donors, and they are not subject to the California Public Records Act.  

Governor Arnold Schwarzenegger could have increased transparency of these higher-education foundations by enacting Senate Bill 218, but he vetoed it instead.  

Click here for more about how a loan from the Sonoma State University Academic Foundation to one of its board members will cost the school at least $250,000  and could mean reduced student scholarships and campus events for the 2010-11 school year.

Missouri Attorney Sues City Over Open Records Request

Columbia attorney Stephen Wyse has sued the city of Columbia and the Columbia Police Department's custodian of records over an open records request. 

Wyse had requested surveillance video from the Columbia Police Department showing the police lobby and holding area to determine whether the police had inappropriately denied him access to an arrested woman who asked for a lawyer.  

In response to his Sunshine Law request for the video, the police department's custodian of records estimated the cost to be $2,739.73 and said it would take three weeks to organize more than 80 hours of digital footage. 

Wyse responded, saying the city violated the Sunshine Law by inappropriately calculating the cost and for not responding to the request timely.  He received a new estimate for $114.31, covering the cost of burning the footage to DVDs.  After paying the $114.31, Wyse again was told that his request would be honored in three weeks and after he paid the original cost estimate of $2,739.73.  

More here

State Task Force Recommends Office of Open Records for Washington

A task force created by Republican Attorney General Rob McKenna and Democratic state Auditor Brian Sonntag unanimously recommended the Washington Legislature create a new Office of Open Records to handle public records disputes out of court. The state office would be modeled after the offices created in Pennsylvania and Connecticut.  

Although the task force unanimously recommended the new state office, they disagreed on issues of management and leadership for a new office and any appellate procedures after the state office's decision. The cost of a new office also remains unknown, and could create a large hurdle for the state legislature. Washington faces a budget shortfall of up to $1.7 billion in January.  
Get more information here.

Tuesday, November 03, 2009

New Englanders Favor Open Government

A recent poll commissioned by The New England First Amendment Coalition (NEFAC) and conducted by the University of New Hampshire's Survey Center shows the vast majority of New Englanders believe having open access to the workings of government is important to citizen and favor strengthening laws to protect access, such as making government agencies pay any legal bills necessary to open public records.  

Among the findings:
  • One in four respondents strongly believe that public business in their community is done out of public view.
  • The majority in the six-state region believe the news media seeks out public information useful to citizens. But one in four people polled disagreed, 14 percent strongly.
  • Most citizens have not asked for a public record in the last 12 months and, of those who did, 87 percent said they got what they asked for. 
  • A plurality of respondents said they were familiar with the workings of their state's open records laws.
  • On the whole, New Englanders are satisfied with the response of state and local government to citizen requests for access, but they remain skeptical of government motives.
Get the full report here and more from NFOIC here.