Former DOJ official: Obama could be forced to release the Osama death photos

from Gawker:

Barack Obama has finally decided against releasing a photo of Osama bin Laden's corpse as proof of his death. But the former chief freedom of information expert for the U.S. government tells Gawker that he may not have that choice.

Up until a few moments ago, when CBS News reported Obama's decision, the Administration had issued mixed signals on whether it intended to release graphic evidence of Osama's demise. CIA director Leon Panetta stated that he expected a photo would eventually be released, while Defense Secretary Robert Gates and Secretary of State Hilary Clinton were reportedly opposed. White House Press Secretary Jay Carney said yesterday that "there are sensitivities here in terms of the appropriateness of releasing photographs of Osama bin Laden in the aftermath of this firefight."

But all the agonizing may have been for naught. According to Daniel Metcalfe, the former chief of the Department of Justice's Office of Information and Privacy—a post that effectively made him the government's top expert in the Freedom of Information Act—the odds are better than even that a FOIA lawsuit seeking the photo's release would succeed.

Read the rest here.

National security: When secrecy is a weapon

from The Bellingham Herald:

In a recent interview with Newsweek magazine, former CIA lawyer John Rizzo spoke with surprising candor about the CIA's "targeted killing" program. He discussed the scope of the program (about 30 people are on the "hit list" at any given time), the process by which the CIA selects its targets (Rizzo was "the one who signed off") and the methods the CIA uses to eliminate them ("The Predator is the weapon of choice, but it could also be someone putting a bullet in your head"). In a wide-ranging conversation, Rizzo volunteered details about a highly controversial counterterrorism program that had previously been cloaked in official secrecy.

What was most remarkable about the interview, though, was not what Rizzo said but that it was Rizzo who said it. For more than six years until his retirement in December 2009, Rizzo was the CIA's acting general counsel - the agency's chief lawyer. On his watch the CIA had sought to quash a Freedom of Information Act lawsuit by arguing that national security would be harmed irreparably if the CIA were to acknowledge any detail about the targeted killing program, even the program's mere existence.

Read the rest here.

Does new Supreme Court decision in FOIA case stop Citizens United in its tracks?

from CREW:

The Supreme Court issued a decision in Fed. Communications Comm’n v. AT&T, holding the protection the Freedom of Information Act provides for “personal privacy” does not include corporations. AT&T was trying to prevent the disclosure of documents it had submitted to the FCC as part of an investigation, arguing their release would invade the corporation’s personal privacy. According to AT&T, because the word “person” in the FOIA includes corporations, the reference to “personal privacy” must also include corporations.

When the Supreme Court agreed to hear this case, many feared the Court would use it as an opportunity to extend its ruling in Citizens United, where it recognized the First Amendment rights of corporations, to broader contexts such as the FOIA. A number of groups, including CREW, filed friend-of-the-court briefs urging the Supreme Court to use common sense and congressional intent to limit the FOIA’s personal privacy protection to individuals.

Read the rest here.

'[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).

St. Louis Post-Dispatch Obtains FBI Records on the Paper

The St. Louis Post-Dispatch obtained more than 1,200 pages of FBI records through FOIA requests, and the records show how the FBI under Director J. Edgar Hoover kept tabs on the newspaper.

Click here to see the documents.

Virginia Bill to Curtail FOIA Harassment is Threat to Transparency

Legislation proposed by former newspaper editor and Virginia state delegate R. Lee Ware Jr. (R-Powhatan) to protect public bodies from FOIA harassment is headed nowhere fast. The proposed bill would allow any public body in the state to petition a court for relief from a person deemed to be abusing rights granted under FOIA.

Powhatan County's attorney and the county board of supervisors urged the bill after being receiving 25 FOIA requests from one individual last year relating to utility projects in the county.

The bill has now been sent to the Virginia Freedom of Information Advisory Council for review, which means it will be at least a year before the legislature considers the measure again.

Open records advocates say the proposed law would crush the spirit of FOIA because it could allow the government to stymie requests with threats of litigation.

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. 

The Washington Post Asks: Do we have a right to know the central bank's inner workings?

In this article, The Washington Post poses a question examining the scope of public inquiry into the inner workings of the Federal Reserve Board, especially with respect to two pending issues.  First is the legislation sponsored by Ron Paul (R-Tex.), a bill that would require annual audits of the Fed's monetary policy-making and short-term lending.  Second is the litigation brought by Bloomberg News for access to the Fed's data on crisis lending under the FOIA.  

What do you think?  

Evaluating the Senate's Passage of the Open FOIA Act

The Senate's passage of the Open FOIA Act presents a mixed bag.   It's disappointing that the Senate exempted photos showing detainee treatment under U.S. force's control, adding yet another exemption to the 240 already written into the law.  On the other hand, the bill requires the invocation of any future FOIA exemptions to cite the specific part of the act that permits them, making it easier to identify and debate those proposed exemptions.  

For more information, click here. 

Federal Reserve Ordered to Disclose Recipients of Emergency Loans

Bloomberg LP won a FOIA suit against the Federal Reserve System for disclosure of the financial firms it lent to or disclose the amounts or the assets put up as collateral under emergency lending programs.

In ordering the Fed Reserve to comply with the FOIA request, the court accepted Bloomberg's arguments that U.S. taxpayers need to know the terms of Fed lending because the public became an “involuntary investor” in the nation’s banks as the government began shoring up companies with capital injections and loans. The court rejected the central bank's argument that loan records aren’t covered by the law because their disclosure would harm borrowers’ competitive positions.

For more information, click here.

Open Government Advocates Oppose Exempting Terrorist Identity Information from the Freedom of Information Act

Citizens for Responsibility and Ethics in Washington (CREW) and nine other open government advocates are asking the House and Senate Intelligence Committees to strike a provision from the Intelligence Reauthorization Act of 2010 that would exempt all terrorist identity information (TII) from the Freedom of Information Act (FOIA). The organizations say the provision is redundant of an existing Executive Order and is overbroad in its reach.

Read the full story here.

Details of bailout loans remain a secret

The Federal Reserve Bank of New York provides select members of the Federal Reserve Board of Governors the daily reports on bailout loans that journalists have been asking for, Bloomberg reported. Bloomberg has suited for records which mostly exist at the Federal Reserve Bank of New York, which claims it isn't subject to FOIA. The Board of Governors now has 231 pages of these documents; however, it is using a trade secret exemption to prevent releasing the data to the public.

The Federal Reserve Board of Governors receives daily reports on bailout loans to financial institutions and won’t make the information public, the central bank said in a reply to a Bloomberg News lawsuit.

The Fed refused yesterday to disclose the names of the borrowers and the loans, alleging that it would cast “a stigma” on recipients of more than $1.9 trillion of emergency credit from U.S. taxpayers and the assets the central bank is accepting as collateral.

Fed secrecy was the focus of a Senate Banking Committee hearing today in which the panel’s top two members said the central bank’s reluctance to identify companies benefiting from the American International Group Inc. bailout risks undermining public confidence in the government.

More here.

Dunbar, W. Va., charges $10-an-hour research fees

Two law students at West Virginia University are researching whether Dunbar city officials can legally charge the $10-an-hour research fee for filling FOI requests, in addition to the 35-cent-per-page photocopy charge, The Charleston (W. Va.) Gazette reported. The city said the fee is necessary because staffers are overwhelmed with requests; however, only six FOIA requests were filed since November.

Dunbar city officials have gotten six requests for information under the state Freedom of Information Act since November.

In January, members of Dunbar City Council decided to start charging a $10-an-hour research fee to look up public information to fulfill FOIA requests. City officials said the fee was necessary because employees in the city clerk's office were overwhelmed with requests for information.

City officials also charge 35 cents a page for photocopies.

More here.

EPA originally wanted stricter C8 limits

FOI at Work!

The EPA wanted to limit C8, a toxic chemical, to 0.2 parts per billion but then agreed to a 0.5 limit, the Charleston Gazette reported. The chemical is used by DuPont's Washington Works plant to make nonstick products, such as Teflon. The Gazette secured EPA memos discussing the 0.2 limit from the lawyers of DuPont plant neighbors. The lawyers received the memo from an FOIA request. Officials say the change was due to a calculation error.

Federal government scientists originally sought a much tougher standard for the toxic chemical C8 than was included in a nationwide health advisory issued last month, according to an internal U.S. Environmental Protection Agency memo.

More than three years ago, EPA staffers proposed that the agency rewrite a deal with DuPont Co. to mandate a C8 limit of 0.2 parts per billion, according to the memo.

"EPA's intent is to seek consent through negotiations with DuPont," the memo said. "However, the order could be issued unilaterally if agreement cannot be reached."

More here.

Defense Dept. releases first FOIA documents about secret prisons

The U.S. Defense Department and U.S. Department of State released the first batch of records in response to a 2007 FOIA-based lawsuit, MSNBC reported.

The Department of Defense’s involvement in the CIA’s “ghost” detention program is certain, according to three human rights groups -- Amnesty International USA, the Center for Constitutional Rights and the Center for Human Rights and Global Justice.

They released documents today from the U.S. Department of Defense and U.S. Department of State that, they said, prove the existence of secret prisons at Bagram and in Iraq as well as the Department of Defense cooperation with the CIA ghost detention program. They also said the documents show one case where the Defense sought to delay the release of Guantanamo prisoners.

More here.

Secret Congressional records, worth nearly $1 billion, released

More than 6,700 reports from the Congressional Research Service, known as "Congress' brain," were made available to the public by Wikileaks. Because CRS is a branch of Congress, it is exempt from FOIA. Members of Congress, however, may choose to release reports that portray them in a favorable light.

Wikileaks has released nearly a billion dollars worth of quasi-secret reports commissioned by the United States Congress.

The 6,780 reports, current as of this month, comprise over 127,000 pages of material on some of the most contentious issues in the nation, from the U.S. relationship with Israel to the financial collapse. Nearly 2,300 of the reports were updated in the last 12 months, while the oldest report goes back to 1990. The release represents the total output of the Congressional Research Service (CRS) electronically available to Congressional offices. The CRS is Congress's analytical agency and has a budget in excess of $100M per year.

Open government lawmakers such as Senators John McCain (R-Arizona) and Patrick J. Leahy (D-Vermont) have fought for years to make the reports public, with bills being introduced--and rejected--almost every year since 1998. The CRS, as a branch of Congress, is exempt from the Freedom of Information Act.

More here.

Ill. boards stall to release election candidate data

Although the deadline to run for local office was Jan. 26, the Daily Herald in Chicago has not been able to get the addresses and, in some cases, names of candidates from the Wauconda Library District, Oakbrook Terrace Township, Naperville Township and Deer Park Township.

Today's topic might sound self serving, and to a certain extent it is, but it's really all about providing you, the local voters, with what you need to know.

Here's the problem: Far too many of our municipalities, schools, libraries, parks, fire and township boards are refusing to release blatantly public information about the people who are running to represent us.

We can't tell you about these candidates and you can't learn about them yourselves if none of us can find out who they are and how we might contact them. It's as simple as that. It's a basic part of a free, working democracy.

More here.

Del. open government bill would exempt legislators' e-mails

Oh, the irony! Sure, the bill would subject the Delaware General Assembly to FOIA, meaning that the legislature would no longer be exempt from open-meeting laws. However, an amendment would exempt from FOIA all e-mails "received and sent by members of the Delaware General Assembly or their staff" in order to protect the privacy of constituents who e-mails legislators with "their deepest, darkest secrets."

Even as the House mulls a bill intended to make more of the General Assembly's work public, an amendment is being shopped around that would have the opposite effect.

The draft amendment to House Bill 1, which itself would subject the General Assembly to the Freedom of Information Act, would close off access to some information that now is considered public.

The Legislature currently is exempt from the state's open-meeting law, and legislators' e-mails have long been assumed to be covered by that exemption. However, a legal opinion circulating in Legislative Hall concludes that legislators' e-mails to state agencies covered by FOIA are open to public scrutiny.

More here.

Will journalists let Chris Dodd off the hook?

That's the question the Washington Examiner is asking after Sen. Dodd invited only a few Connecticut reports to his Hartford, Conn., office to briefly view, but not copy, documents he promised to disclosure concerning his loan deal with Countrywide Mortgage.

There are two kinds of journalists in the world - those who have been been given the idiot's treatment by public officials on a Freedom of Information Act (FOIA) request for public documents, and those who will be.

Believe me, I know because I didn't get inducted into the Freedom of Information Act Hall of Fame for nothing (no, really, I am not making that up. Go here if you think only liberals get such honors.).

Now Senate Banking Committee Chairman Sen, Chris Dodd, D-CN, has pulled what has to be an all-time classic evasion stunt against journalists covering Congress and the economic crisis concerning his promise six months ago to make public all of the documents about his sweetheart loan deal with Countrywide Mortgage.

More here.

Fed. Appeals denies FOIA request for Medicare records

Federal Appeals Court judges said FOI laws apply to government, not private businesses. However, that's not stopping the nonprofit Consumers' Checkbook from calling for data that would allow them to monitor health care quality, especially as health care costs rise.

A consumer group seeking Medicare billing records to peek over the shoulders of doctors and grade them on quality said Monday it's not giving up despite a reversal from a federal appeals court.

The case is being closely watched as an important battle in the effort to reshape the nation's health care system. Consumer advocates, employers and insurers argue that access to Medicare claims filed by doctors' offices could help independent groups monitor quality and ferret out waste. Patients would not be identified.

But doctors are worried that such disclosures would violate their privacy, and that resulting ratings could portray some physician's offices inaccurately.

More here.