Cameron County (Tx.) District Attorney’s Office declines to pursue San Benito FOI issue

from The Brownsville Herald:

The Cameron County District Attorney’s Office has refused to prosecute a case filed by the Valley Morning Star accusing San Benito officials of violating the Texas Open Meetings Act, officials said last week.

The Star filed the complaint in April accusing city commissioners of failing to disclose the nature of a discussion they held in a closed meeting on April 12.

The newspaper also accused the city of illegally posting the meeting’s agenda, which failed to state the nature of the discussion commissioners planned to hold in executive session.

“The District Attorney’s Office received this case and reviewed it,” Assistant District Attorney Charles Mattingly said in an e-mail. “After evaluation, it was determined that the case was without merit. Therefore, the DA’s Office declined to prosecute.”

[...]

The decision riled Joel White, an Austin attorney with the Texas Freedom of Information Foundation.

“I saw it as a blatant violation of the Open Meetings Act,” White said in an interview. “I’m not surprised that the DA chose not to prosecute. DAs like to work on violent crimes and they don’t like to prosecute elected officials.”

Read more here.

Open meetings law threat or guard to free speech rights?

from the Austin American-Statesman:

Seventeen elected officials and four Texas cities, including Pflugerville, have asked a federal judge to scrap the state's Open Meetings Act, arguing that their free speech rights trump the law that requires most government business to be conducted in public.

The officials say the Texas law stifles "uninhibited, robust and wide-open" debate on public issues — the opposite effect intended by the U.S. Constitution's free-speech protection. They say they should not have to forfeit their First Amendment freedoms when taking public office.

But in a case that raises concern in other states with open-government laws, defenders of the Open Meetings Act say the case should be thrown out because the officials are seeking to protect secret speech, not free speech.

"The First Amendment protects citizens against government oppression — not government against citizen oversight," Texas Solicitor General James Ho wrote in legal briefs. "Openness in government is a First Amendment virtue, not a First Amendment violation."

Read the rest here.

Colorado School Board Ordered to Release Closed-Door Meeting Records

Former technology director Harriett White won a victory on several of her claims in a lawsuit against her former employer, the Brush School District in Colorado. A district court judge has ordered the school board to release complete or partial records from 11 closed-door meetings conducted in violation of the Colorado Open Meetings Law. The lawsuit touches on nearly every executive session held by the school board during 2009.

Get the details here.

University of Michigan Claims Open Meetings Act Unconstitutional

As a defense to a lawsuit alleging that a February 3 meeting violated the Open Meetings Act, the University of Michigan Board of Regents is asserting that the law is unconstitutional. The meeting was allegedly held to discuss an NCAA probe into the university football program, and the school asserts the meeting was closed for attorney-client privileged communications.

The university's brief argues the Open Meetings Act is an "unconstitutional infringement upon the Regents' autonomy and authority over the general supervision of the University of Michigan."

Read more about the lawsuit and defense here.

Wyoming City Council Meeting May Have Been Illegally Closed

Three Cheyenne, Wyoming council members say part of a January 11 closed executive session was an illegal violation of the state's open meetings law. But city attorney Dan White disagrees, saying the meeting was closed so that he could update the council on ongoing lawsuits and settlement negotiations. He claims the meeting was exempt from the open meetings law, relying on the litigation clause and the exemption "to consider or receive any information classified as confidential by law," including attorney-client privileged information.

At issue is whether the city attorney could meet with the governing body in a closed meeting to discuss potential litigation. The Wisconsin Supreme Court has not yet addressed this issue.

For more, click here.

University of Wisconsin-Milwaukee Journalism Students Pleased with Attorney General's Response

In April, University of Wisconsin-Milwaukee journalism students filed a request with Attorney General J.B. Van Hollen regarding the applicability of the public records and open meetings law to student governments in the University of Wisconsin System. They say they are pleased with the Attorney General's response, which concludes that a student government organization is subject to the requirements of Wisconsin's open meetings law under certain circumstances.

Open Government Foes Argue Freedom of Speech is Protected Best by Secrecy

Three Texas cities and the Texas Municipal League have endorsed a legal challenge to Texas' Open Meetings Act, claiming the law unconstitutionally restricts their freedom of speech. The Texas Municipal League also passed a resolution to support changes that would lessen the penalties for violations of the open meetings act.

Critics point out, of course, that government officials enjoy freedom of speech under the state law, but simply must say it in front of the public at an open meeting when they are part of a quorum of a governmental body.

Click here for more.

NJ School Board Members Need to Take it Outside

An attorney advising the Pequannock, NJ school board opined that using a cell phone or PDA to communicate during meetings could violate the state's Open Public Meetings Act, saying such messaging is "probably a violation of the spirit and intent" of the law. The attorney has asked school board members to step outside the board room to use their cell phones or PDAs if they need to use them during meetings.

Get the full story here.

Examining the Breadth of Sunshine in the Sunshine State

A Florida representative has asked the state attorney general to determine if a regional economic development organization is subject to the state's open records and meeting laws.

Florida's Great Northwest, an economic development group designed to push workforce development in 16 northwest Florida counties, was not created by law or public agency, but it does receive federal and state money. The group maintains that it is exempt from the open meeting and open records law.

For more information, 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.

Take Two - Texas Public Officials Will Try to Challenge Texan Open Meetings Act

At least 20 Texas public officials are expected to file a suit in federal court in the West Texas city of Pecos, asserting the state's Open Meetings Act violates their right to free speech.  

The open meetings act prevents a quorum of government officials from deliberating in secret and carries a penalty of up to six months in jail and a $500 fine.

The Fifth Circuit Court of Appeals dismissed a similar lawsuit for lack of standing as the plaintiffs were no longer in office.  The  attorney for the anticipated suit says they've cured the standing problem because the 20 officials who will be plaintiffs are current public officials.

Get more info here. 

Washington Task Force to Consider an Open Records Board

The Washington state attorney general and state auditor launched a task force to consider how to create a publicly-funded open-records board or commission to decide open-records and open-meetings quickly and outside of court.   The task force includes representatives from the state legislature, government, unions, lawyers and citizen activists.  The task force will craft a recommendation for lawmakers to consider in January.  

For more information about the task force and the Pennsylvania and Connecticut models being considered, click here.  

An Oklahoma D.A. Charges 8 Officials with Open Meetings Act Violations

Larry Moore, the Muskogee County district attorney, is throwing the book at eight county officials, including the Sheriff, Police Chief, County Commissioner, and members of the Criminal Trust Authority.  Between them, they're charged with 38 misdemeanor counts of violating Oklahoma's Open Meetings Act.   

A violation of the open-meeting law could result in a fine of up to $500 and up to one year in jail.

Way to go, Larry!  Get more details here. 

University of Iowa Faculty Not Subject to Open Meeting Law

After consulting with the University of Iowa General Counsel's Office and the Iowa Attorney General, a University of Iowa faculty leader said faculty government meetings are not subject to the Iowa Open Meeting law.

The question arose during an August state Board of Regents meeting when regents questioned the use of closed-door session by faculty government and whether the state open meeting statute applied.

Some professors disagree with the use of executive or closed sessions.

For more information, click here.

Open Meetings Law Stands in Fifth Circuit

The U.S. Court of Appeals in Dallas (Fifth Circuit) dismissed as moot a challenge to the Texas Open Meetings Act, holding that the plaintiff lacked proper standing to sue. In the case, former city council members had asserted the law violated their rights to exchange e-mail messages discussing city business in secret.

For more on the procedural history of the case and the dissenting opinion of judge James L. Dennis, please see the article from The Reporters Committee for Freedom of the Press.

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.

More here.

Hawaii City Council must cancel closed-door actions

A circuit judge issued a temporary restraining order that essentially forces the Hawaii County Council to cancel a council reorganization plan that it discussed in a private meeting, the AP reported. The council will meet on Aug. 4 to rehear all measures. This order was prompted by a lawsuit filed by West Hawaii Today that alleges that the council violated the Sunshine Law by discussing the plan in private.

Members of the Hawaii County Council violated the state’s open-government law by privately discussing a council reorganization plan, a state judge said.

Circuit Judge Ronald Ibarra on July 23 issued a temporary restraining order, forbidding the council from doing business. But he delayed the start of the TRO until Aug. 5 to give the council time to rectify the situation.

The council has scheduled a special meeting for Aug. 4 to cancel the reorganization. It also plans to rehear all measures it considered after the June 16 changes went into effect.

More here.

Wyo. open meetings/records woes

Shawn Whitman, chief of staff for Wyoming Sen. John Barrasso, said closing a meeting was "an unfortunate misunderstanding on our part of the state statute," the AP reported. A Barrasso staffer told reporters that the meeting at a restaurant was private though it was being attended by a quorum of Fremont County commissioners.

Closing a meeting to the public between staffers for Sen. John Barrasso and Congresswoman Cynthia Lummis and a quorum of Fremont Count commissioners was a mistake. That’s was Barrasso’s chief of staff Shawn Whitman said Wednesday in response to an allegation by open-government advocates that the press was illegally barred from the gathering.

More here.

Update on Wind River Indian Reservation case:

Fremont County Coroner Ed McAuslan said he's bound by federal law to not release details on the deaths of three girls on the Wind River Indian Reservation, KVOW/KTAK reported. Wyoming Sen. Cale Case has said he's drafting legislation to make coroner records open, but McAuslan said that won't affect this case, which is governed by federal law. McAuslan said he will not violate laws and face a fine and/or jail time for releasing information.

Fremont County Coroner Ed McAuslan said he will not risk jail time by divulging information about a federal case involving the deaths of three girls last year on the Wind River Indian Reservation in Fremont County.

His comment comes on the heels of Republican Sen. Cale Case’s recent announcement he’s drafting state legislation that would specify all coroner records be open for public review unless privileged or confidential by law.

McAuslan said Case notified him this week by email of his intentions to draft the disclosure of information bill.

More here.

Prison vendor accuses system of secret negotiations with competitor

MHM Correctional Services is suing Florida's prison system for allegedly favoring a competitor through secret deals, The Miami Herald reported. MHM accuses the prison system of holding "secret" and "closed-door" talks with its competitor before MHM learned that its extension proposal was rejected. The governor's office says MHM was rejected because the firm didn't meet the financial soundness requirements.

Florida's prison system is embroiled in a lawsuit filed by an ousted vendor on a major contract that accuses the state of illegally favoring a competitor.

The lawsuit was filed by MHM Correctional Services, which wants to extend its 2 ½ year contract to provide mental health care to more than 15,000 inmates in a dozen South Florida prisons.

In an effort to save money, the state privatized prison health care several years ago, but a legislative watchdog agency said in a report last January that the change has yielded "mixed results.''

More here.

NFOIC Summit: Oklahoma FOI roundup

State-by-state updates at the 2009 NFOIC Summit: Joey Senat with Oklahoma State University School of Journalism and Broadcasting provided a summary of his state's FOI news.

• The attorney general issued a binding decision regarding private technologies. The public access to it depends on the nature of the document not the technology. If it has to do with public business, it's public. The Oklahoma Department of Libraries helped make that request. The state also has a statute related to records retention, which is what the library was interested in. There's still an need to talk to state agencies on what to do with the records they are now keeping.
• Enforcement of open-government laws falls to local district attorneys, which is a problem. The Court of Civil Appeals says said if you violate the open meetings law based on advice from your attorney, it's still a violation. You're supposed to know what the law is.