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.

Reporters Committee lauds another win for openness in Supreme Court

from Reporters Committee for Freedom of the Press:

Washington, D.C. — The Reporters Committee for Freedom of the Press lauded today’s U.S. Supreme Court decision in another decision favorable to open government, this time ruling that the Navy’s use of a Freedom of Information Act exemption for records regarding internal agency personnel rules and practices was improperly invoked to deny the release of maps and charts.

“For the second time in a week, the Supreme Court has reinforced the public's right to get valuable information held by the government through the Freedom of Information Act,” said Reporters Committee Executive Director Lucy A. Dalglish. “The government's interpretation of the ‘High 2’ exemption was tortured, at best, and once again the Court relied on a common sense approach to government transparency.”

Last week, the court ruled that AT&T could not use a FOIA exemption related to “personal privacy” to prevent the Federal Communications Commissions from releasing records about the corporation.

The Reporters Committee and 19 news organizations filed an amicus brief last September in Milner v. Department of the Navy cautioning against the “erroneous” expansion of FOIA Exemption 2 with so-called “High 2” information that includes more than basic personnel rules and records.

“Exemption 2 by its plain language exempts only those materials ‘related solely to the internal personnel rules and practices of an agency.’ However … it has been expanded by agency interpretation and adopted by lower courts to over time cover more than just trivial matters of internal procedure to also include almost any record whose disclosure could enable some unidentified party to commit a hypothetical crime at some undefined future time,” the media brief noted.

Read the rest here.

Senate Judiciary Committee OK's Commission to Study FOIA Delays

The Senate Judiciary Committee approved a bill to establish a commission to study why thousands of requests for government information are backlogged, sometimes for years, and to study why FOIA exemptions have been increasingly cited by federal agencies to prevent the release of information.

The bill now moves to the full Senate for a vote.

Read more here.

Holder Troubled by FOIA "Exceptions" used by Administration

Attorney General Eric Holder told the Senate Judiciary Committee he was troubled by the findings of The Associated Press regarding FOIA statistics that showed the administration was citing FOIA exceptions to withhold records more often, even as requests for information has decreased. He said he would find out why the use of exceptions has increased, despite President Barack Obama's directions for more openness.

Read more here.

Redaction Run Amok!

The Puget Sound Business Journal has been seeking internal communications between Washington Mutual (WaMu) and federal regulators, including the Office of Thrift Supervision (OTS) and the Federal Deposit Insurance Corp. (FDIC).

Of interest are internal emails, which the news organization hopes will help explain why regulators seized the bank in September 2008 even though WaMu appeared to meet regulatory standards for operating banks.

The results of the FOIA requests have been less than forthcoming. OTS denied the request in full, citing FOIA exemptions that protect records concerning the operations of financial institutions and to protect inter-agency communication. Meanwhile, the FDIC produced emails, but they were so heavily redacted as to be meaningless. In doing so, the FDIC relied on FOIA exemption 8, which allows the government to redact information related to the regulation or supervision of financial institutions.

To see the emails, click 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.

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. 

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.

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.

FOIA exemptions hard to spot

The original Freedom of Information Act included eight exemption categories. The Sunshine in Government Initiative has identified an additional 270, but there could be more. New legislation has been introduced in Congress that would "require any new b(3) exemptions to specifically reference the Freedom of Information Act, so that these exemptions would be easier to spot," the Columbia Journalism Review reported.

The idea behind the Freedom of Information Act is simple: file a request for a document with the government, and they’ll turn it over.

There are, of course, exceptions. The original Act, signed into law on July 4, 1966, listed eight broad exempted categories, including trade secrets, personal medical records, and classified information.

A ninth item ensured it wouldn’t stop there. Section b(3) of the Act says that information can be exempted from disclosure by other statutes. There’s nothing to require that these other exempting statues mention their intent to foil FOIA, and Congress is welcome to write as many of them as they like.

More 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.

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.

Smithsonian likely to become more transparent though not subject to FOIA

Trying to establish public trust after his predecessor's scandals, Secretary G. Wayne Clough, chief executive of the Smithsonian pledges to move the museum's policies closer to those of the FOIA. However, he opposes legislation that would end the museum's FOIA exemption, saying the new policy will include an appeals process for those denied access to Smithsonian records.

The Smithsonian Institution should become more open and transparent, but also needs to maintain exceptions to the federal Freedom of Information Act, Secretary G. Wayne Clough said Wednesday after two months as chief executive of the museum complex.

Clough told The Associated Press he opposes an effort in Congress to place the Smithsonian under the government's public records law because the museums on the National Mall will have to look beyond the government to pay for programs in the future. Taxpayer money currently covers about 70 percent of the Smithsonian's $1 billion budget.

"If the Smithsonian is going to be called upon to do its business in a different way in the future, which we are being asked to do, we're going to have to raise private funds," Clough said. "We're trying to model our policy as close to FOIA as we can with some narrowly cast exceptions."

More here.

USDA Seeks the Mother of All FOIA Exemptions

Talk about attacking a molehill with a nuclear weapon...without public notice or debate, a provision secretly tucked into the Farm Bill Conference Report (Sec. 1619, "Information Gathering") nullifies a recent, major federal appeals court decision under the Freedom of Information Act that ordered USDA to make public large amounts of data crucial to monitoring the economic and environmental impacts of multi-billion-dollar farm subsidy and conservation programs.

Mulch -- a great blog on all things farm-y, does such a great job on this that I am just going to take you there...

Info of Farm Bill Federal FOIA Exemption

BARRE, MA - The Northeast Organic Farming Association/Massachusetts Chapter, Inc. (NOFA/Mass) called upon Senators Kerry and Kennedy this week to reject a provision in the 2008 farm bill, which recently passed out of the Senate Agriculture Committee, that would criminalize disclosure of information from the USDA's new proposed program, the National Animal Identification System (NAIS).

NAIS is a program proposed by and administered by the United States Department of Agriculture (USDA), which if fully implemented would require all farmers and livestock owners to individually identify their livestock animals and report each time any one of them is moved from one property to another. USDA says it is implementing the program to contain animal disease outbreaks and reassure foreign meat buyers.

Although there remains no law that specifically authorizes the USDA to implement NAIS, the secrecy provision in the current Senate farm bill would be the first time that the USDA's new program would be explicitly acknowledged in federal statute. The provision, moreover, would impose harsh criminal or civil penalties on members of the public and the press who might publish or in any way disclose information from the NAIS, even if the information had been legally obtained.

"This provision in the Senate's version part the Farm Bill sets a bad precedent," said Jack Kittredge, social action coordinator for NOFA/Mass and owner of Many Hands Organic Farm in Barre. "What it would do is legitimize what the USDA already has been doing by collecting and storing farm data while adding more secrecy. Instead, the Senate should question whether NAIS is a good program to begin with."

The USDA has begun creating a national database containing data on farm premises as the first step toward implementing NAIS. In some states, identification of individual animals has begun, although USDA plans have been slowed by fierce opposition to the program throughout the country.

Since 2006, hundreds of Massachusetts farmers and livestock owners around the state have attended public meetings to express their concerns that NAIS would place unnecessary burdens on their farm operations. As a result, the Massachusetts Department of Agriculture stopped its practice of uploading livestock premises data to the USDA. Moreover, fourteen state representatives and three senators have co-sponsored bills to end the state's participation in the national program.

Since NAIS was first proposed, many agribusiness spokespersons have expressed concerns over how the program might compromise confidentiality of data about their production operations. Ben Grosscup of NOFA/Mass commented, "The best way to protect farmer's data is not to shut out the public. The best answer in this case happens to be the simplest: just don't collect the information in the first place."

"The same agribusiness firms that first wanted NAIS in order to calm the safety concerns of foreign buyers are now trying to undo the one part of NAIS that they don't like" said Grosscup. "Since NAIS creates a huge database to track all animal agriculture activities, these companies want special secrecy assurances in the law to stop watch dog groups and the public at large from revealing what they're doing inside their factory farms. But more secrecy will just conceal the diseases these operations produce. The Senate bill's secrecy provision satisfies those companies that are willing to submit to government surveillance of their production sites, because they aren't required to change their unsustainable enterprises. This top-down approach to disease control most hurts the very producers whose sustainable methods make them upstanding guardians of the public health."

Kittredge added that there are simpler and more effective ways to deal with the disease threats that NAIS is supposed to address. "These threats are a product of bad management. Raising animals in dense indoor conditions, out of the cleansing presence of sun and air and soil, provides a breeding ground for pathogens. Feeding grain to grass-eaters and animal parts to herbivores may create fast growth and cheap meat, but it is unnatural and results in sickness and disease. We need to support healthy animal production on pasture, outdoors on small farms. If we want to eat meat, we need to raise animals in a clean and sustainable fashion."

NOFA/Mass promotes farming and gardening with ecosystem-friendly practices to foster health, local agriculture, open space, and food security in Massachusetts. The group has also sponsored numerous public informational forums on NAIS, genetic engineering, and local and organic food throughout the state as well major annual Winter and Summer conferences. Information on the group's activities is available at: www.nofamass.org.

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NOFA/Mass recently signed on to a coalition letter that has been signed onto by 28 groups from around the country that are advocating for great accountability and openness in government: http://www.openthegovernment.org/otg/farm_bill_letter.pdf

For further news about the NAIS secrecy provision in the Farm Bill:

Concerns About Disclosure in Farm Bill
By MARY CLARE JALONICK Associated Press Writer
http://www.salon.com/wires/ap/2007/11/08/D8SPOMNO1_congress_farm_bill/index.html

For the latest info on efforts in Massachusetts to stop NAIS see:
http://pressroom.nofamass.org/taxonomy/term/66

A Load of Bull...

From an agricultural critic friend of mine comes word of an under-the-radar federal FOIA exemption in the making:

Today the Senate Agriculture, Nutrition and Forestry Committee released its preliminary drafts of the Chairman's mark for all titles of the Senate's 2007 Farm Bill; the Committee markup of the bill is set for tomorrow, October 24, 2007, at 9:30 A.M.

The draft of the livestock title contains a FOIA exemption for information in the National Animal Identification System (NAIS). This proposed exemption flies in the face of all
reasonable standards of open access to government. Since 2005, the Animal and Plant Health Inspection Service of the USDA has been collecting what the USDA itself calls "phone book" information on farms and other premises that hold livestock in the United States. USDA/APHIS is presently maintaining this information in a database called the National Premises Information Repository in Fort Collins, Colorado. For each livestock location, the
information consists of nothing more than basic contact information, i.e., the name of a contact person, an address, a telephone number, and in some cases an email address, and the species of livestock kept at that location.

Yet at the behest of industrial farming interests, the Senate Agriculture Committee sees fit to propose that this "phone book" information should receive a new exemption from the Freedom of Information Act. Even more alarming, the proposed exemption purports to override all state freedom of information laws that might pertain to similar records.

The pertinent section of the draft bill is set forth below in its entirety:

Sec. 10305. Protection of Information in the Animal Identification System.

The Animal Health Protection Act (7 U.S.C. 8301 et seq.) is amended --

(1) by redesignating sections 10416 through 10418 as sections 10417 through
10419, respectively; and
(2) by inserting after section 10415 the following:

Sec. 10416. Disclosure of Information Under a National Animal
Identification System.

(a) Definition of National Animal Identification System. -- In this
section, the term 'national animal identification system' means a system for
identifying or tracing animals that is established by the Secretary.

(b) Protection from Disclosure. --

(1) In general.--Information obtained through a national animal
identification system shall not be disclosed except as provided in this
section.

(2) Use. -- Use of information described in paragraph (1) by any individual
or entity except as otherwise provided in this section shall be considered a
violation of this Act.

(3) Waiver of Privilege of Protection. -- The provision of information to a
national animal identification system under this section or the disclosure
of information pursuant to this section shall not constitute a waiver of any
applicable privilege or protection under Federal law, including protection
of trade secrets.

(c) Limited Release of Information. -- The Secretary may disclose
information obtained through a national animal identification system if --

(1) the Secretary determines that livestock may be threatened by a disease
or pest;

(2) the release of the information is related to an action the Secretary
may take under this subtitle; and

(3) the Secretary determines that the disclosure of the information to a
government entity or person is necessary to assist the Secretary in carrying
out this subtitle or a national animal identification system.

(d) Required Disclosure of Information. -- The Secretary shall disclose
information obtained through a national animal identification system
regarding particular animals to --

(1) the person that owns or controls the animals, if the person requests
the information in writing;

(2) the State Department of Agriculture for the purpose of the protection
of animal health;

(3) the Attorney General for the purpose of law enforcement;

(4) the Secretary of Homeland Security for the purpose of homeland security;

(5) the Secretary of Health and Human Services for the purpose of protecting public health;

(6) an entity pursuant to an order of a court of competent jurisdiction; and

(7) the government of a foreign country if disclosure of the information is necessary to trace animals that pose a disease or pest threat to livestock or a danger to human health, as determined by the Secretary.

(e) Disclosure under State or Local Law. -- Any information relating to animal identification that a State or local government obtains from the Secretary shall not be made available by the State or local government pursuant to any State or local law requiring disclosure of information or records to the public.

(f) Reporting requirement. -- To disclose information under this section, the Secretary shall --

(1) certify that the disclosure was necessary under this section; and

(2) submit to the Committee on Agriculture of the House of Representatives
and the Committee on Agriculture, Nutrition, and Forestry of the Senate a
copy of the certification.