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 24, 2010

Whither transparency in the next Congress?

from OMB Watch:
When the 112th Congress convenes in January, attention will be focused on the newly Republican-controlled House. On transparency issues, House Republican leaders have sounded positive tones. However, it remains to be seen whether bipartisan consensus on meaningful transparency can be achieved or whether transparency will be wielded as a partisan weapon.

Undoubtedly, divided party control of Congress will mean a more adversarial relationship between Congress and the White House and between the House and the Senate. What remains unclear, however, is whether Republicans will support the administration's many positive efforts to improve transparency while criticizing the instances where it has fallen short or dragged its feet. The House could also fall prey to the political theater that often occurs when parties in divided government compete for the public spotlight.
Read the rest here.

Coding the middleware for government data

from O'Reilly radar:
Cities, states and agencies are publishing more government data online, but that's just the tip of the iceberg. Much government data is still in paper form, locked away in file cabinets, or in closed formats on obscure servers. ... The Department of Labor is just now starting to put that data online. That's why reporting on the progress of open government data initiatives is a key pillar of Gov 2.0. For those who have been working toward more transparent government, that issue is central to their work.


Under the Open Government Directive, a PDF qualifies as an open format. BrightScope uses government data, but it's not "open" in the sense that technologists use the term, nor did BrightScope's business result from the open government initiative. Put in the context of Tim Berners-Lee's definition for open linked data or the principles at OpenGovData.org, PDFs on CD might not merit even one star, although BrightScope has been able to move forward with their business in the meantime.
Read the rest here.

CREW: DOJ is a roadblock to open government

from CREW:
Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Attorney General Eric Holder expressing concern over the Department of Justice's (DOJ) failure to abide by President Obama's commitment to government transparency and accountability.

Despite policy directives from President Barack Obama and Attorney General Holder mandating a presumption of openness in administering the Freedom of Information Act (FOIA), DOJ continues to operate - as it did during the Bush administration -- under a presumption of secrecy, deliberately withholding information about what DOJ is up to and why.
Read more here.

Thursday, November 18, 2010

Unplug WikiLeaks? Enact a federal shield law instead

from The Huffington Post:
The Obama administration has made no secret of its desire to unplug WikiLeaks, the whistleblower website infamous for data dumps of classified records. Of the few options available to the government, the best is one that probably hasn't been considered in this context: enacting a federal shield law.

How would a shield law -- a version of which has passed the House and awaits a vote by the full Senate -- put WikiLeaks out of business? The answer is that it would remove the need that WikiLeaks fills. If that were to happen, WikiLeaks would receive few, if any, sensitive documents leaked by sources inside US government agencies.

The purpose of a shield law is to enable journalists to protect the identity of their confidential sources -- which, under current law, they can't do. Although journalists, in dealings with a source, can promise confidentiality up to a point -- the point being when a federal judge orders a journalist to identify her source or go to jail -- the risk of disclosure deters sources in many cases.
Read more here.

Thursday, November 11, 2010

(Massachusetts) State tells man he may be jailed for releasing data

from boston.com:
Governor Deval Patrick’s administration told a local website operator he could face jail time for publishing information that the state provided under an open-records request.

It is unclear whether officials would or could follow through with the threat to Michael Morisy, cofounder of MuckRock (muckrock.com), a website devoted to open records. But the unusual letter, also published on the website, has forced him to consult with an attorney.

The data, which Morisy had not removed from his website by last night, show how much money in food stamps has been spent at businesses around the state over the past five years under the federal Supplemental Nutrition Assistance Program. The state said the information was released erroneously and in violation of federal law.
Read the rest here.

CIA faces second probe over videotape destruction

from msnbc.com:
The legal inquiries into the CIA’s destruction of videotapes showing the brutal interrogation of terror suspects may not be over after all.

A day after the Justice Department announced that a special counsel had concluded his investigation into the matter without bringing criminal charges, officials of the National Archives and Records Administration signaled Wednesday that they plan to reopen their own long delayed probe into whether the agency’s actions constituted an improper destruction of federal records.

“We’re not going to let this drop,” Susan Cooper, a spokeswoman for the National Archives told NBC.
Read the rest here.

Friday, November 05, 2010

'[We] Can Neither Confirm Nor Deny the Existence or Nonexistence of Records Responsive to Your Request': Reforming the Glomar Response Under FOIA

from New York University Law Review:
Under normal Freedom of Information Act procedures, an individual submits a request for records to a government agency and receives one of three responses: The agency may identify responsive records and release them, determine that there are no responsive records and inform the requestor of this fact, or identify responsive records but determine that they are exempt from disclosure under one of FOIA’s nine statutory exemptions. Since the 1970s, however, a fourth type of response has arisen: Agencies sometimes refuse to confirm or deny whether responsive records do or do not exist on the grounds that acknowledging their very existence itself would reveal secret information.

This withholding mechanism, known as the Glomar response, creates special problems for FOIA requestors and receives remarkable deference from federal courts. This Note assesses the justifications for such deference, which are often rooted in separation of powers concerns. Arguing that the level of deference afforded is excessive, this Note posits that both separation of powers and institutional conflict of interest considerations support greater judicial scrutiny of agency invocations of the Glomar response. This Note concludes by offering proposals for judicial, legislative, and administrative reform of the Glomar response.
Read the entire Note from the NYU Law Review here (PDF / 136 KB).

Open government advocates welcome new limits on information markings

from NFOIC.org and OpenTheGovernment.org:
(Washington, DC, November 4, 2010 )—Organizations working on government openness and accountability welcome the release of the Executive Order on Controlled Unclassified Information (CUI) (PDF/16 KB). The Order rescinds the Bush Administration CUI memorandum, which was intended to create "a tiered system of designations and establish a framework for designating, marking, safeguarding, and disseminating designated information." Instead, the Order simply standardizes and limits the use of control markings on unclassified information.

Patrice McDermott, Director of the OpenTheGovernment.org coalition, said "The Bush policy and earlier drafts could have created a fourth level of classification. Instead, this Order is a victory for openness, for both our community and the Administration. We applaud the Administration for the time, effort, and thoughtful consideration of input from inside and outside government it took to make this the outcome."
Read the rest here.

Tuesday, November 02, 2010

Cavanagh named NEFAC executive director

PROVIDENCE, R.I. - Rosanna Cavanagh, who holds law and business degrees from Cornell University, has been named executive director of the New England First Amendment Coalition (NEFAC), a regional organization devoted to furthering freedom of information and government transparency.

Her appointment was announced today by Thomas Heslin, executive editor of the Providence (R.I.) Journal and president of NEFAC, a non-profit whose leadership includes journalists, educators and First Amendment lawyers from the six New England states. NEFAC works in partnership with the First Amendment Center at Northeastern University in Boston.

"We are excited to move NEFAC forward as an organization and the timing could not be better for us to take this step," Heslin said.

"As Franklin D. Roosevelt said, 'In the truest sense, freedom cannot be bestowed; it must be achieved.' "

Cavanagh brings to the NEFAC position experience at the corporate law firm of Ropes & Gray in Boston, and past experience as board member, treasurer and co-chair of the fundraising committee for Everybody Wins Metro Boston.

NEFAC is a member of the National Freedom of Information Coalition (NFOIC).

Visit NEFAC for more of the story.

Springfield (Mo.) school board says finance committee not official

from the Springfield News-Leader:
Following questions about why the Springfield school board finance committee wasn't complying with the Sunshine Law, the board now contends it wasn't an official standing committee.

The board argues that even though the committee has met regularly -- often at least monthly -- for at least eight years and various board members have served on it, it was merely an advisory group.

"That's a technicality," said Jean Maneke, a lawyer with the Missouri Press Association. "It doesn't make any sense if they're not part of the board."
Read more here.