Alabama Governor Exempts 911 Recordings from Public Records Laws

Alabama Governor Bob Riley signed into law a bill that exempts 911 recordings from release under the state's public records laws. Only a court order will compel the disclosure of the audio tapes if the court first finds the public interest outweighs the individual's privacy interest. Transcripts of the 911 calls may be release for a "reasonable fee."

More here.

CJR Debate: What Should Remain Private in a World where Everything could be Public?

The Columbia Journalism Review challenged the blogosphere to debate the question: What should remain private in a world where everything could be public?

The question stems from the Georgia House's unanimous passage of a bill that prohibits all but credentialed press members from viewing crime scene photos. Even the press, though, cannot remove or copy the photos and must view them under the supervision of a Georgia Bureau of Investigations records custodian. Legislators moved to pass the bill after a Hustler true-crime writer made an open records request to view the autopsy report and crime scene photographs of 24 year-old Meredith Emerson, who was murdered while hiking near the Appalachian Trail in 2008. The photos are said to depict Emerson's nude, decapitated body.

The Columbia Journalism Review argues the issues raised by the crime scene photograph requests should be made on a case-by-case basis.

To join the debate, click here or post a comment to our blog.

Oklahoma Gubernatorial Candidates Support Applying Open Records Act to Legislature

The Oklahoman reports all six candidates to succeed Oklahoma Gov. Brad Henry have said they support making the state's Open Records Act applicable to the Legislature.

Oklahoma is one of only nine other states that have wholly exempted legislative records from open records laws. In some states, records maintained by individual lawmakers are considered confidential, but the records maintained by the legislative bodies and committees are open.

Read more here.

Georgia State Law Professor Criticizes Proposed Legislation as "Haphazard"

Georgia State University law professor Jessica D. Gabel makes a cogent argument that the Florida legislature's efforts to pass the Meredith Emerson Privacy Act is short-sighted and misses the mark.

The bill would remedy the release of disturbing crime scene photos of the woman who was brutally killed while hiking with her dog in North Georgia in 2008. A true-crime reporter hired by Hustler magazine requested the photos of Emerson's nude and decapitated body.

Instead of expanding exemptions to Georgia's public records laws or enlarging the state's obscenity laws, Gabel suggests the Legislature consider a stand-alone law that prevents "the malicious, gratuitous or unethical use of such photos." The law professor continues, "Darkening Georgia's sunshine laws is a sacrifice, not the solution."

Read more here.

Fear and Speculation Spur Proposals to Limit Transparency

The Spokesman-Review opines the Idaho Legislature is working with the wrong presumption with respect to proposed laws aimed at creating additional public records exemptions.

Senate Bill 1346 would block the nutrient management plans for concentrated animal feeding operations, the feedlots where cattle are fattened before slaughter. The Idaho Cattle Association argues state inspection reports could contain trade secrets and other proprietary information.

House Bill 531 would keep secret the names of those receiving hunting and fishing licenses for fear that such information could be used to harass the license-holders.

As The Spokesman-Review argues, "Gutting public records law ought to be the last resort, not the first. These bills have it backward."

Read more here.

Proposed Laws Would Add Exemptions to Oklahoma's Sunshine Laws

Oklahomans might have less access to information if several bills pending in the legislature are passed. The Durant Daily Democrat reports there are at least six bills pending that would add exemptions to the state's sunshine laws, preventing access to autopsy reports, birth dates of public employees, municipal court information and records from the Oklahoma Film and Music Office.

Read more about the proposed exemptions here.

Editorial: "Public Records are Public Records"

Recent assaults on police officers have spawned proposed bills in the Washington legislature that would prohibit a law enforcement officer's month and year of birth and official photograph from being disclosed to the public, although the news media would still have access to it.

The Spokesman-Review editorializes that such a strategy is an unacceptable precedent and that the media should not have selective privileges. Instead, public records should remain public records.

For more, click 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.

Wash. organization asks governor's office to reconsider records denial

The Evergreen Freedom Foundation of Washington is asking Gov. Gregoire to reconsider the decision to deny releasing documents related to the governor's executive order concerning climate change. The EFF requested all documents related to the executive order's drafting and implementation, but the governor's office is withholding 48 documents and citing "executive privilege" and "deliberative process" as reasons. However, the EFF says there's no "executive privilege" exemption in the Public Records Act, and because the executive order has already been published the "deliberative" exemption doesn't apply.

Does the governor's executive privilege exempt her from the state's Public Records Act? Looks like we'll find out.

Climate change was a hot topic during the 2009 legislative session. Gov. Gregoire had requested legislation that ultimately died in the Senate. Not to be stopped, the governor issued Executive Order 09-05 to address climate change. Curious to see the backstory, EFF filed a request for documents related to the executive order's drafting and implementation. We've received many records, but the governor's office has refused to release 48 documents. The denial cites several reasons, including "executive privilege" and "deliberative process."

There's a problem with this denial. There is no "executive privilege" exemption in the Public Records Act. And once the executive order was published the "deliberation" exemption no longer applies. (This isn't the first time Gov. Gregoire has claimed the phantom "executive privilege" exemption.)

More here.

Justice Department argues for protection of Cheney's interview

The Justice Department is arguing that the release of Dick Cheney's interview with prosecutors concerning the CIA leak case could create a chilling effect, Politico reported. Department attorney Jeffrey Smith argued his case in front of Judge Emmet Sullivan in an FOIA lawsuit, which seeks the release of Cheney's interview records. Smith asked that the records be kept secret for five to 10 years so that it would be more likely for the information to be used "for historical purposes and not for political embarrassment." Sullivan has not stated his opinion on the case but did say at one point that the Justice Department seemed to be asking him to create a new vice presidents' exemption to the FOIA.

President Barack Obama’s Justice Department is arguing that former Vice President Dick Cheney’s interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.

“In making public the vice pesident’s interview, you will chill them,” Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.

Sullivan sounded highly skeptical of the government’s arguments, but he said he had not decided how he would rule in the case. "Where do I draw the line? This happened five years ago,” the judge said. “Would there be impediments to putting this information in a time capsule?”

More here.

Also, My Take On the DOJ Argument To Withhold Cheney Interview from The FOIA Blog: "The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply."

And, Saving Dick Cheney from 'The Daily Show'? from Politico: “The government doesn’t want to have what’s in these documents end up on a late-night comedy show,” Sullivan said.

iPods on fire, literally

FOI at Work!
KIRO-TV obtained more than 800 pages of Consumer Product Safety Commission documents detailing iPod-related injuries, including at least 15 incidents of overheating and burning, FOX News reported. The TV station said it took seven months to obtain the documents due to exemptions filed by Apple lawyers. The station requested the information after hearing how an iPod caused a "penny-sized burn" on the chest of Jamie Balderas of Arlington, Wash.

In a report posted on its Web site Tuesday, KIRO-TV says it used the Freedom of Information Act to get more than 800 pages of Consumer Product Safety Commission documents regarding iPod-related injuries and property damage.

Within the documents were details of at least 15 separate incidents where iPods overheated, sparked, smoked, caused burns or caught fire, KIRO-TV said.

The station became interested when Jamie Balderas of Arlington, Wash., was mystified by a penny-sized burn on her chest in Nov. 2008.

More here.

First Amendment Foundation pleased with vetoes

The First Amendment Foundation is pleased with Florida Gov. Charlie Crist's two vetoes, the Reporters Committee for Freedom of the Press reported. The group had opposed the first bill, which would have kept sealed any "proprietary business information" the Department of Management received from a telecommunications company. The second bill, for which the organization recommended a veto, would have exempted "information identifying a donor or prospective donor to a publicly owned building."

Florida Governor Charlie Crist last week barred two new exemptions from being added to the state's public records law when he vetoed a pair of bills approved by state lawmakers.

The first would have shielded from public disclosure any "proprietary business information" the Department of Management received from a telecommunications or broadband company. According to The Associated Press, Crist found the term "proprietary business information" too broad to define an exemption, but he encouraged lawmakers to rewrite the bill next year.

The First Amendment Foundation in Tallahassee opposed the bill and tried to get it narrowed during the legislative session. But the group did not recommend the governor veto the measure.

More here.

Fla. governor vetoes two public records exemptions

Gov. Charlie Crist vetoed one bill that would have "exempted 'propriety business information' obtained from a telecommunications or broadband company by the Department of Management Services," the AP reported. The other bill he vetoed would have exempted the identification of a donor or prospective donor to a publicly owned building who wished to remain anonymous. He signed into law a bill that allows commercial entities (including the media) to obtain Social Security numbers to verify someone's identity.

Gov. Charlie Crist on Wednesday vetoed two bills that would have created new public record exemptions.

One measure (HB 7093) would have exempted "proprietary business information" obtained from a telecommunications or broadband company by the Department of Management Services.

Crist wrote in his veto message the term used was overly broad and suggested that lawmakers try again next year to craft language that protects business interests "while still respecting the state's strong public policy for open and transparent government."

More here.

Senate creates process to ban release of detainee photos

The Senate passed two FOIA-related amendments to the appropriation bill, The Reporters Committee for Freedom of the Press reported. The first "creates a process for the Secretary of Defense to certify to the president that the release of photos and videos taken between Sept. 11, 2001, and Jan. 22, 2009, of people captured by U.S. forces outside the United States would endanger lives." This would protect the photos from being released for at least three years. The second amendment requires new laws related to exemptions to specifically reference the FOIA.

The ACLU’s effort to get photos documenting the treatment of detainees in Iraq and Afghanistan was halted by the Senate on Thursday night, in an amendment to the appropriations bill.

The Senate also agreed to require new laws that exempt information from disclosure under the Freedom of Information Act to specifically reference the FOIA, making them easier for requesters to spot.

The two changes were part of the supplemental appropriations bill, which the House already passed. The House and Senate will now reconcile the two versions of the bill.

More here.

Ill. AG suggests all privacy exemptions go through her office first

Illinois public agencies wanting to cite privacy as their reason for withholding public records might have to go through the Attorney General's Office first, the Chicago Tribune reported. This proposal is included in Atty. Gen. Lisa Madigan's package for pending legislation that would rewrite the state's weak FOIA. The privacy exemption allows officials to withhold anything that constitutes "a clearly unwarranted invasion of personal privacy." The Attorney General's Office would determine if using the privacy exemption was appropriately applied and then issue a binding decision.

Illinois Atty. Gen. Lisa Madigan wants to force public agencies throughout Illinois -- from town halls to school boards -- to report to her office every time they cite privacy as an excuse to withhold public records.

"It is by far the most broadly abused exemption to the state records law," said Cara Smith, Madigan's deputy chief of staff. "We think that is far less likely to happen if they know they have to report it to us every time they use it. If they have a valid reason, then they will have nothing to worry about."

But a top lobbyist for municipal government in Illinois said the idea of elevating one exemption to public-records law over all the others is "without merit."

More here.

Wash. panel considers abandoning 'legislative privilege'

Washington's Sunshine Committee is considering a recommendation to abandon legislative exemption, The Spokesman-Review reported. Current state law "allows Senate and House clerks to keep secret anything that's not an 'official action' of the House or Senate." This means lawmakers can refuse to release e-mails or letters though they sometimes do voluntarily release them. Critics say doing away with the exemption will only lead lawmakers to start using personal computers and e-mail addresses to subvert the law.

It’s been nearly 40 years since Washington voters, seeking to make government more transparent, overwhelmingly passed a law requiring cities, counties and state agencies – with some exceptions – to open their meetings and files to the public.

Want to see how much everybody’s paid? You can. Want to see a mayor’s e-mails? They’re available. The travel receipts turned in by a city councilman on a trip? Help yourself.

Government officials who wrongly deny requests face fines of up to $100 a day. The small city of Mesa, north of the Tri Cities, was fined $246,000 for wrongly refusing records to a former mayor in a dispute that began in 2002. City leaders are considering bankruptcy, the Associated Press reported.

More here.

Ill. attorney general supports some exemptions

Illinois Attorney General Lisa Madigan, who might be a candidate for governor in 2010, is trying to add muscle to the Public Access Bureau, which currently doesn't have much power to enforce public records laws, the Chicago Tribune reported. However, Madigan doesn't disagree with some of the controversial exemptions to the Illinois public records law. She supports the exemption of preliminary drafts and performance evaluations of public employees.

Atty. Gen. Lisa Madigan created the Public Access Bureau in 2004 -- a first-ever effort in Illinois to help the public get a clearer picture of how state and local governments make decisions.

The office has trained and advised public officials on open meetings and open records issues. It also has helped mediate records disputes between citizens and government agencies, an effort she says has been stymied by a lack of teeth.

Madigan, a Democrat pondering a run for governor in 2010, says she wants to do more. Seizing upon the public outcry for change following the scandalous tenures of two successive governors, she is seeking more authority to settle records disputes and penalize public officials who violate the law.

More here.

Culture of secrecy shrouds Illinois

In the past four years, more than a thousand citizens have filed complaints regarding Illinois public officials who have refused or ignored public records requests, the Chicago Tribune reported. The newspaper's article attributes theses problems in Illinois to "a notoriously weak open records law, an unsympathetic political culture and an attitude of disdain among many public servants who consider documents their own." Even the state's top law-enforcement officer is powerless. Of the more than 100 strongly worded letters she sent last year asking for the release of public records, fewer than 24 were successful. This excellent article provides three examples of how the open government laws have failed Illinois citizens.

Thom Rae wants to know why his town is spending $1 million to keep a second-run theater afloat.

Kevin and Anne Barber want to know what happened to the principal who forced their 8th grader and his classmates to kneel painfully on a gym floor during a lecture on respect.

Patricia and Joel Garza want to know why so many secrets surround the investigation into the crash that killed their grown son.

They all want answers. The answer they all got was "no."

More here.

Jindal approves failure of La. public records bill

A Louisiana House bill that would have removed an exemption that allows executive staff of the governor's office to keep records private failed 12-5, the Times-Picayune reported. Gov. Bobby Jindal's administration says it's not the concepts but the details that he disagrees with. His administration says it will back a similar Senate bill which provides more shielding on certain records.

With the backing of Gov. Bobby Jindal, a House committee killed a bill that would have opened nearly all records of the governor's executive office to public inspection, a move that the legislative sponsor said would bring real transparency to a state that touts the concept.

A similar bill passed overwhelmingly out of the same panel last year with little fanfare, far from the 12-5 defeat that Rep. Wayne Waddell, R-Shreveport, suffered today. Last year, his bill languished much later in the session after the Jindal administration got more active, saying it supports increased access to records but not in the manner Waddell wants.

The vote came a few hours after the Jindal administration effectively delayed action on another bill that would have expanded disclosure about the correlation between the governor's campaign contributors and his appointees to public posts. As with the records bill, the administration says the disagreement is not in the concept but in the details.

More here.

W. Va. Supreme Court to hear appeals in e-mail case involving a former chief justice

The West Virginia Supreme Court will consider the AP's appeal of a Kanawha County Circuit Court ruling that decided only five of 13 requested e-mails from former Chief Justice Elliot "Spike" Maynard would be released, the AP reported. Circuit Judge Duke Bloom had ruled that the e-mails were not released because they were not related to public business. A Supreme Court administrator is appealing this ruling and arguing that e-mail involving justices is exempt from FOIA.

The West Virginia Supreme Court unanimously agreed Thursday to consider The Associated Press' appeal of a ruling on whether the justices' e-mails are subject to the state's Freedom of Information Act.

The AP is appealing a Kanawha County Circuit Court ruling that released just five of 13 e-mails between former Chief Justice Elliot "Spike" Maynard and Massey Energy Chief Executive Don Blankenship.

The AP sought the e-mails after it came to light that Maynard and Blankenship vacationed together in Monaco when cases involving Massey Energy were heading to or pending with the court. Maynard lost his re-election bid last year.

More here.