Justice FOIA Report Out...

From Government Executive:

The Justice Department's second annual report on agencies' efforts to improve responses to requests for public information paints a disingenuous "rose-colored" portrait, advocates of openness in government said Monday.

The 118-page report, issued earlier this month under a requirement in the December 2005 executive order mandating improvements in the administration of Freedom of Information Act requests, stated that agencies are making "diligent and measurable progress." But there is little evidence to support this conclusion, members of the FOIA community said.

Daniel Metcalfe, the former director of the Justice Department's Office of Information and Privacy, said the report is an "unfortunately transparent" attempt to make the situation look far better than it actually is. Metcalfe is now retired.

Rather than simply stating whether agencies were successful in meeting their goals as outlined under the executive order, the report makes use of Office of Management and Budget-style traffic light grades measuring success, Metcalfe noted. The grades are assigned by the Justice Department "in coordination with OMB," the report stated.

"The executive order says that either you met an improvement goal or you didn't," Metcalfe said. "That doesn't translate to red, yellow, green. It's black and white. And unfortunately, there's a lot of black underneath OMB's yellow."

The majority of the marks handed out to the 25 agencies and their components, over dozens of categories, were green. There were only four reds assigned.

"The only middle ground that has any place in a report such as this," Metcalfe said, is where an agency missed an early goal or interim milestone "but at least redoubled its efforts to meet it subsequently and by now has done so." But even this is "lamely obscured" by the OMB-style self-categorization, he said.

Update on Kyl Hold

From Rebecca Carr at Cox Newspapers comes this depressing update:

Legislation that would strengthen the beleaguered Freedom of Information Act had all the makings of what Capitol Hill politicos call a hot line bill.

It cleared the Senate Judiciary Committee by voice vote. More than 100 groups from across the political spectrum support it. The House approved a companion measure by a wide margin.

Yet, the bill sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., sits in limbo.

The reason? Arizona Republican Sen. Jon Kyl.

It's no secret that Kyl was the one who invoked a parliamentary procedure known as a secret hold last month to block the bill from sailing through the Senate without debate.

With just one objection, the bill went from "hot line" status to a legislative black hole.

"I cannot overestimate the power of each U.S. senator," said Robert Dove, the former parliamentarian of the Senate.

By placing the hold on the measure, Kyl is assured that nothing passes without his support, Dove said.

A HUGE victory in Florida FEMA case...

On Friday, a trio of Florida newspapers won a key victory over FEMA...

The public's right to know triumphed over government secrecy Friday when the Federal Emergency Management Agency was ordered to make public the addresses of more than 600,000 households that received $1.2 billion in aid after the 2004 hurricane season.

The (Fort Myers, Fla.) News-Press, Pensacola (Fla.) News Journal and Florida Today newspapers (all owned by Gannett Co. Inc.) sued FEMA for the names and addresses after their public-information request was denied by the agency.

A three-judge panel of the U.S. 11th Circuit Court of Appeals ruled that the newspapers have a right to the addresses, but not the names, of recipients of disaster aid.

The judges stated in their decision that, "disclosure of the addresses will help ... by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country, and we cannot find any privacy interests here that even begin to outweigh this public interest."

Kate Marymont, The News-Press executive editor, said, "The court spoke so clearly and passionately that it would be difficult to be more eloquent about the government's obligation and the public's interest in this case.

But Charles Tobin, of the law firm Holland & Knight, who represented the newspapers, said that the three-judge panel set a clear precedent and raised the bar for the privacy arguments that FEMA has used to deny information to journalists.

He also raised doubts that FEMA will continue its battle by appealing to the full 11th Circuit Court or going to the U.S. Supreme Court.

"I think the judges' decision is so compelling, leaving so little room for criticism, I'd be hard pressed to believe that they will continue to fight this," he said.

Newspapers weren't the only winners on Friday.

"This is a victory for taxpayers and their right to know if the government is spending their money on legitimate disaster relief claims," said Bryan Gulley, the press secretary for U.S. Sen. Bill Nelson, D-Fla. Nelson had been a supporter of the newspapers' nearly three-year fight for open records at FEMA.

This is a significant victory for the right to know, which has been taking a real beating where privacy rights are concerned. Way to go, Chuck Tobin!

CD

A Letter to Senator Secrecy...

A nice open letter from several Arizona state lawmakers to their U.S. Senate colleague....

One of the most effective ways to control government and ensure that agencies are dedicated to serving the public rather than the bureaucracy is to guarantee broadest public access to government information. While the federal Freedom of Information Act (FOIA) is four decades old, you probably know that Arizona traces its own Public Records Law back to territorial days — 1901, to be precise. Just as our state law has been strengthened by amendments through the years, we also believe it is time to strengthen the federal FOIA again. S849 is the right vehicle to do so.

We understand that you raised concerns in the Senate Judiciary Committee about some of the bill's provisions, most significantly, those relating to attorneys' fees for successful litigants and penalties for agency delay. We urge you to support inclusion of a provision that would allow courts to award fees to parties who received the documents they requested only after they were forced to go to court. The law provided this result for many years before a Supreme Court case in an unrelated area changed things; there were no allegations of abuse or misuse of the judicial processes during that earlier period. In short, this provision only returns the law to an earlier time, allowing reimbursement for a private citizen who is forced to go to court to get the information requested, and then only after a court orders the payment.

We are sympathetic with your concern about denying the government the ability to rely on an exemption where there has been some agency delay. We agree with you that this might have some negative unintended consequences, for both the public and the agency. Perhaps you can get the sponsors of the legislation to remove this section if you agree to allow the bill go through with the attorneys' fees provision intact. This would be a win-win tradeoff.

Finally, we note that the Arizona Public Records Law not only allows an Ombudsman-Citizens Aide to assist the public in pursuing requests for information, but provides that persons wrongfully denied records can sue for any monetary damages caused by the denial. We are not suggesting a damage remedy in the federal context, but point out how seriously our State views the public's right to information. S849 would institute an alternative dispute process through a type of Ombudsman, and we think this would be a valuable addition to the federal law.

Very truly yours,

Sen. Karen S. Johnson (District 18)

Sen. Paul Aboud (District 28)

Sen. Tim Bee (District 30)

Sen. Ken Cheuvront (District 15)

Sen. Jake Flake (District 5)

Sen. Ron Gould (District 3)

Sen. Linda Gray (District 10)

Sen. Leah Landrum-Taylor (District 16)

Sen. Thayer Verschoor (District 22)

Sen. Jim Waring (District 7)

A New Audit in East Texas...

From Tyler, Texas comes word of a new audit....

Open government training could be a factor in improved compliance rates recorded last year in East Texas, but the educational mandate may not be broad enough to ensure key public employees follow the law, according to a university study.

Journalism students at The University of Texas at Tyler found that two-thirds of the 118 entities they surveyed employ someone with the required training in open records law, although that person may not always be the one who has initial contact with the public.

Under Texas law, all elected or appointed public officials or their designee must complete training approved by the state's attorney general's office.

Hundreds of East Texas school trustees, city managers and council members, county clerks and public information officers received that training last year, but compliance information is not necessarily trickling down to front line employees and therefore possibly preventing violations, according to survey results.

In most cases, a clerk or secretary - employees not covered by the law - likely received an open records request first. Although the request often was passed on to a superior without incident, the survey found room for improvement.

In Canton, for example, a researcher noted a required open records information notice posted just left of the main entrance inside the police department building, yet an officer questioned the student said he would be charged $25 per report, and told him the requested information was "not usually given out to non-media" - all violations of the Texas Public Information Act.

The student researcher said Chief Operations Officer Michael Echols also told him he had "never heard" of open government training. The researcher was referred to City Hall, located about four blocks away, and later received the requested police documents through city hall personnel.

Echols did not return a telephone message requesting a follow-up interview. But City Secretary Julie Seymore said she is the city's trained public information officer and the city's policy is to refer all open records requests to her.

She said Echols told her no one in his department is trained about open records laws.

A Trend Worth Keeping A Close Eye on

Dean Olsen of the State Journal-Register wrote recently about Illinois Gov. Rod Blagojevich's administration's bizarre interpretation of HIPAA:

There's nothing illegal about the state releasing county-level enrollment numbers for the state's All Kids, Medicaid and other health-care programs, according to the director of a national association that advises states on data issues.

"We need to get data out into the public domain," said Denise Love, executive director of the National Association of Health Data Organizations, based in Salt Lake City.

But Gov. Rod Blagojevich's administration insists Illinois would violate patients' right to privacy - and run afoul of federal law - by telling the public how many people in each county receive benefits from All Kids, FamilyCare, Medicaid and other health-care programs run by the state.

Republican lawmakers contend the Democratic governor is trying to block scrutiny of state programs.

"The more information they give, the more they have to be held accountable for," said state Sen. Bill Brady, R-Bloomington.

Blagojevich aides deny the allegation. They said anything other than statewide enrollment statistics would violate the federal Health Insurance Portability and Accountability Act, which took effect in 2003.

"We are following the strictest HIPAA reading," said Amy Rosenband, spokeswoman for the Illinois Department of Healthcare and Family Services.

But Love said basic statistics at the county level don't identify whether specific individuals are covered by a state health program.

"I think that's the strictest reading I've heard," Love said of Illinois' interpretation. "It just doesn't make sense."

In 2005, the last year for which county-level data were available, about 37,500 children were enrolled in Medicaid and KidCare in the counties of Sangamon, Menard, Cass, Christian, Greene, Logan, Macoupin, Mason, Montgomery, Morgan and Scott. Sangamon County's total was 16,997...

Agencies that run health-care programs in Iowa, Wisconsin, Indiana, Missouri and Kentucky all continue to release county-level data.

"I know that we take HIPAA very seriously," said Stephanie Marquis, spokeswoman for the Wisconsin Department of Health and Family Services.

"But posting aggregate data? I'm not sure how that would somehow violate HIPAA."

The story was posted with permission at The Association of Health Care Journalists.

Congrats to Pete Weitzel and CJOG!

This just in from the National Press Club:

Pete Weitzel, former editor of the Miami Herald and founder of the National Freedom of Information Coalition, and the late Anna Politkovskaya of Novaya Gazeta, a Russian newspaper, won the John Aubuchon Freedom of the Press Award for their efforts in support of the public's right to know.

"In addition, I'm especially pleased that we are able to honor Pete Weitzel and Anna Politkovskaya for their ground-breaking achievements," Zremski added. "The cause of press freedom has no greater champion than Pete Weitzel. And Anna Politkovskaya, who never let death threats deter her from her remarkable reporting of the conflict in Chechnya, deserves to be remembered and honored for her courage and commitment to journalism."

Weitzel won a John Aubuchon Freedom of the Press Award for the work he has done with numerous foundations to promote the freedom of information. Since retiring as managing editor of the Miami Herald in 1995, Weitzel has founded the Florida First Amendment Foundation, the National Freedom of Information Coalition and the Coalition of Journalists for Open Government (CJOG).

He also was executive director of the North Carolina Center on Actual Innocence and taught at the University of North Carolina, Duke University and the Poynter Institute for Media Studies.

"Pete Weitzel is truly one of journalism's most unsung freedom of information heroes," said Debra Gersh Hernandez, chair of the NPC Freedom of the Press Committee. "CJOG's landmark research on federal Freedom of Information Act compliance has helped make the case for the first meaningful FOIA reform on Capitol Hill in decades."

The late Anna Politkovskaya also won an Aubuchon Award for her fearless reporting on the behavior of the Russian military in Chechnya. She was assassinated in her Moscow apartment building on Oct. 7, 2006. The killing spurred demonstrations in Moscow the next day, and candlelight vigils and protests still occur.

"Anna Politkovskaya paid the ultimate price for her investigation and reporting about abuses Russian forces were inflicting in Chechnya," Hernandez said. "An unyielding critic of Russian President Vladimir Putin, Anna's work had led to many previous death threats and a suspected poisoning attempt in 2004."

Two more deserving souls I can't imagine....

CD

Great Story on FDA FOIA Backlog

Bloomberg has a detailed look at the backlog at the FDA this morning:

Claudia Krcmarik can't get documents about her father-in-law's death during a medical study. Meryl Nass keeps asking for records she thinks will show an anthrax vaccine is dangerous. The American Bakers Association's request for a paper on the safety of imported honey has languished.

All filed public information requests with the U.S. Food and Drug Administration at least four years ago and have yet to receive what they asked for -- even though American law says agencies must release records ``promptly.''

The FDA's 20,365 unfilled requests for information exceed the totals for the departments of Defense and Justice. One company, FOI Services Inc., accounts for 44 percent of the backlog, according to the agency. Researchers, consumer groups and individuals say the delays limit their ability to alert the public to food and drug dangers and to hold the FDA accountable.

``It is important information that we need to tell this story,'' said Krcmarik, of Ann Arbor, Michigan, who wants to know how her father-in-law was given an overdose in an FDA- regulated clinical trial before he died in 2002. ``That information should be available, and it should be timely. What we wanted to avoid is this happening to anyone else.''

The FDA's oversight of food and drug safety has come under criticism by advocacy groups and lawmakers. They say the agency failed to act effectively before Vioxx, a Merck & Co. painkiller, was withdrawn in 2004 because of a link to heart attacks and strokes and didn't alert the public more recently to heart risks associated with GlaxoSmithKline Plc's diabetes drug Avandia. They also fault the FDA for failing to prevent contamination of peanut butter, spinach and pet food.

In South Dakota, The Payroll is....Secret?

The Argus Leader has a great crusade underway here...

Ever wonder how much money a state trooper makes?

How about snowplow drivers, state park managers or highway workers?

If you lived in many states, the answers would be as close as your computer or the local library.

In South Dakota, you can't find out.

The Argus Leader has made repeated requests over the past four months for a list of state employees and their salaries. State officials have refused to reveal the salaries for the vast majority of South Dakota's roughly 14,000 employees, their positions or even the department in which they work.

Making the employee list public would be against the law, according to a lawyer who represents the state.

That prevents South Dakotans from knowing whether their tax dollars are spent wisely.

It also keeps residents and employees in the dark about whether they are overpaid or underpaid, whether state workers with political or family connections get paid more, and a host of other questions.

Tennessee May Be Getting an FOI Czar...

This just in from Tennessee:

The state is now looking for an expert on open records.

The budget that goes into effect in July includes $100,000 to hire an open records ombudsman, someone to help regular people get documents that are available under the state's Public Records Act.

Gov. Phil Bredesen first proposed creating the job more than a year ago to "level the playing field in allowing people who don't have access to expensive lawyers or don't have a lot of sophistication about the process of how you get that open record."

Money in the budget to create the position survived a late challenge from some Republicans and local government lobbyists who argued that the responsibilities and powers of the ombudsman were not clearly defined.

But the money was included in the final version of the budget, so now the state comptroller's office is drafting a job description and determining which qualifications will be considered necessary.

The Public Records Act says all state, county and municipal records are to be available for inspection by anyone _ unless the record is specifically exempt.

There are hundreds of exemptions in the law, including medical records, sensitive military documents and investigative records of theTennessee Bureau of Investigation.

Bredesen said he will push for quickly getting the ombudsman job up and running.

"It's something that I committed to members of the press that I would do," he said. "I think it's a good idea and we will get that moving along."

Love this FOIA response...

Check the date on this FOIA response to DARE...and they say response times are getting worse! Guess so! Hee, hee.....

CD

HUGE news from PA...

This just in from the home of the brand-new Pennsylvania Freedom of Information Coalition:

A state House commission on Tuesday unanimously recommended widening Pennsylvania's Right-to-Know Law to make most government records, beyond a list of exceptions, available for public inspection.

Pennsylvania law currently defines just two categories of government records as public, making it among the weakest access laws in the country.

"I'm pretty impressed," said Common Cause of Pennsylvania executive director Barry Kauffman after the vote by the Speaker's Legislative Reform Commission. "They've made a very clear statement that we need to make major strides in opening government records to the public."

A proposal to extend the Right-to-Know Law to the Legislature, which is currently exempt, also was unanimously endorsed, although an exception was carved out for "constituent casework" and documents or records related to meetings that do not have to be held in public.

Changing the underlying premise of the law to establish that records are presumed open, not closed — what public-access advocates call the "flip of presumption" — has the support of Democratic Gov. Ed Rendell and Senate Majority Leader Dominic Pileggi, R-Delaware, sponsor of a bill to amend the Right-to-Know Law.

The next question may be which records will be exempt from the law, such as police investigative materials or people's medical records. The reform commission unanimously recommended that the House begin developing such a list from exceptions found in Rendell's records-law proposal and in a bill sponsored by Rep. Tim Mahoney, D-Fayette.

Dan Metcalfe on the Politicization of Justice...and secrecy

Great new piece out by Cox Newspapers' Rebecca Carr -- a sitdown with Dan Metcalfe, co-founder of the Justice Department's Office of Information and Privacy, which he co-founded in 1981.

Among many interesting points, Dan mentions that he is becoming a professor at American University's Washington College of Law and executive director of a new Center on Government Secrecy being established there next month. This is great news!

A Tour De Force...

A must read column by Ted Gup, author of Nation of Secrets, out in bookstores now:

In April 1971, CIA officer John Seabury Thomson paddled his aluminum canoe across the Potomac on his daily commute from his home in Maryland to CIA headquarters in Langley. When he reached the Virginia shore, he noticed a milky substance clouding the waters around Pulp Run. A fierce environmentalist, Thomson traced the pollution to its source: his employer. The murky white discharge was a chemical mash, the residue of thousands of liquefied secrets that the agency had been quietly disposing of in his beloved river. He single-handedly brought the practice to a halt.

Nearly four decades later, though, that trickle of secrets would be a tsunami that would capsize Thomson's small craft. Today the nation's obsession with secrecy is redefining public and private institutions and taking a toll on the lives of ordinary citizens. Excessive secrecy is at the root of multiple scandals -- the phantom weapons of mass destruction, the collapse of Enron, the tragedies traced to Firestone tires and the arthritis drug Vioxx, and more. In this self-proclaimed "Information Age," our country is on the brink of becoming a secretocracy, a place where the right to know is being replaced by the need to know.

For the past six years, I've been exploring the resurgent culture of secrecy. What I've found is a confluence of causes behind it, among them the chill wrought by 9/11, industry deregulation, the long dominance of a single political party, fear of litigation and liability and the threat of the Internet. But perhaps most alarming to me was the public's increasing tolerance of secrecy. Without timely information, citizens are reduced to mere residents, and representative government atrophies into a representational image of democracy as illusory as a hologram.

I've just begin reading the book, and it's a nice summation of what we've all been screaming about. A much-needed work.

CD

This One's Worth Watching...

In New Jersey, a real fight is brewing over the governor's e-mails...

A government records dispute is heating up between Gov. Jon S. Corzine and New Jersey Republicans over e-mails that could shed light on his relationship with an ex-girlfriend to whom he gave millions of dollars in gifts.

The case raises a legal question that state open record laws generally do not have exact answers for: Are elected officials' e-mails open for public scrutiny like many other records?

In New Jersey, it's a debate likely to be decided in court. State Republicans are challenging Corzine's contention that some of his e-mails are private. They think his communications with ex-girlfriend Carla Katz, a powerful state labor leader, might back their contention that it's unethical for a governor to haggle over state worker contracts with a past lover whom he reportedly gave millions in gifts after they broke up.

The next step in the legal process comes Aug. 3, when Corzine is due in court to explain why the e-mails should not be public.

The idea of getting access to an official's e-mail is tantalizing because by its nature it holds potential for a scandal to be revealed. E-mail is, after all, a form where people are often unusually candid, where standard punctuation, grammar and capitalization can b 4gotten, where typing in capital letters IMPLIES URGENCY and where this :-) is a way to say you're happy.

This one will wind up in court...

CD

A Troubling Trend...

From the Fort Wayne, Ind., Journal Gazette comes news of a troubling trend in FOI...for-profit records"

Allen County officials are setting a dangerous precedent by allowing a third-party vendor to profit by charging for public information that was previously available for free on the county’s Web site.

As Amanda Iacone’s Thursday story explained, Allen County Treasurer Bob Lee – without input from the public or, apparently, many other county officials who deal with property records – contracted with a vendor to host a property tax records database. The database allows citizens to look up their property tax bill – and those of any other county property owner – and pay the bill online.

The process allowed the treasurer’s office to contract out the timely and costly process of collecting credit card payments. But the contract also permitted the vendor to set a limit preventing any single person or entity from looking up more than 15 bills without cost. After fielding complaints – and calls to the treasurer’s office seeking information that was previously online – the limit was raised to 30.

Yes, it’s true that many of the entities seeking more than 30 records are likely mortgage, title or other commercial firms wanting the land information for business reasons. But they have as much right to public information as any citizens. And homeowners might want to compare their property tax bills with everyone else in their neighborhood or subdivision. Because all of these records are public, people are free to examine them by going to the treasurer’s office and asking to see each and every record. The treasurer’s office must comply.

This is a privatization scheme worth keeping a close eye on...

CD

Check out the FOI Flash Video!

Add this to your sites, and spread the word....

Senator Secrecy's Hijacking Continues....

This from Pete Weitzel over at the Coalition of Journalists for Open Government:

“Senator Secrecy” was quickly outed by the Society of Professional Journalists for his anonymous “hold” on the OPEN Government bill, but the senator, Jon Kyl, R-AZ, continues to block the FOIA reform legislation.

The hold served to keep the sponsors from fast-tracking the legislation and getting it to the floor before Memorial Day. Now it will work to make it more difficult to get jealously-guarded time scheduled for floor action.

We’re confident the bill will pass if it gets to the floor. But first the Senate leadership needs to let it be debated and go to a vote. The key to that may be getting more bi-partisan sponsorshipin the next week or two. That would put pressure on the Republican leadership to set aside Kyl’s objections, forcing him to raise his objections in floor debate.

Sen. Kyl is championing the Justice Department’s opposition to the FOIA bill, and in particular Section 4, dealing with the recovery of legal fees for those who get requested records only after suing. He also opposed Section 6, which creates a penalty for agencies who fail to meet the 20-day response deadline, but the primary sponsor, Sen. Patrick Leahy, D-VT, appears to have resolved that through a manager’s amendment which adopts the lesser penalty provisions of the House bill, which passed by a 308-117 vote.

Section 4 is a critical provision in the bill for public advocacy groups and journalists.

I’ve attached a analysis of the key sections of the bill reflecting the importance of this legislation to open government.

Continued reporting, commentary and editorials on this can make a difference. July 4 will be the 41st anniversary of the signing of the Freedom of Information Act, and will mark the 40th year since it went into effect.

OK, so I am old and getting older....BUT.....

The column is mine, writen in rage following Se. Kyl's secret hold on the FOI reform bill.

The picture is most definitely not me. My profound apologies to the guy who is now playing me...

CD

Floor Time for FOI Reform

We are now at an important juncture on the OPEN Government Act (S.849). This bill has been passed out of the Judiciary Committee with a favorable vote (and a similar bill has passed in the House). The legislation has wide support across the political spectrum and is supported by the Chamber of Commerce and NAM, as well as by a broad spectrum of public interest organizations. We want Senate leadership – Sen. Harry Reid and Sen. Mitch McConnell – to schedule floor time in June.

Please call Senators Reid and McConnell and tell them this month is the time for this bi-partisan good government bill to come to the floor for a vote.

Sen. Reid 202 224 5556

Sen. McConnell 202 224 3135



CD

More on Senator Secrecy, a.k.a Kyl...

Lots of mentions popping up in the press now, as the Guardian's story is followed...
Fox News, The Houston Chronicle each have mentions, and SPJ has Kyl's face on a milk carton.

Nice.

CD

It's Official...Senator Secrecy IS....

SPJ's efforts to unmask Senator Secrecy -- the parliamentarian using darkness and subterfuge to wreck meaningful FOI reform supported by overwhelming majorities in the House and Senate -- has worked.

Sen. Jon Kyl, R-Ariz., is, officially, Senator Secrecy.

His unstated objections -- he will say only that Justice doesn't like FOI reform, so he doesn't like it. Ah, democracy: where a single senator derails legislation on transparency by behaving completely secretly.

CD

A Cool Use For FOI!

The Asbury Park Press has established a section of its Web site called “DataUniverse,” which consists of searchable databases of public records, such as public employee salaries, criminal convictions, crime reports and property assessments. In five months since DataUniverse went live in December 2006, it generated more than 25 million page views.

DataUniverse is the subject of the most recent Audience Building Initiative case study from Prof. Rich Gordon of the Medill School of Journalism at Northwestern University.

The Audience Building Initiative series of case studies showcases both operational excellence and initiatives that have successfully increase audience for newspaper Web sites. Past studies focused on "Spotted" from Morris Communications and blogging at The Spokesman-Review .

In Wisconsin, Partly Cloudy....

The Wisconsin coalition does an excellent job of frequently weighing in through a series of FOI-related submissions to editorial pages across the state. Here is the latest installment, from Margaret Davidson and Ann Frisch:


"In Wisconsin, the law gives the public maximum access to government records and decision-making meetings. People have the right to know, for example, whom local police have arrested and why.

However, when students in two classes at the University of Wisconsin-Oshkosh requested daily arrest lists for area city and county police departments, they didn't get the requested information.

We first trained our students in journalism and human services courses to know their rights under the Wisconsin Open Records Law. The students then filed requests for the police records.

Although no law specifically requires government officials to provide a daily arrest list, officials are expected to promptly provide the names, birth dates, time of the arrest, name of arresting officer, and the reason for the arrest. This expectation stems from a pivotal court case, Newspapers Inc. v. Breier, in which a judge concluded:

"We hold as a matter of law that the harm to the public interest in the form of possible damage to the arrested persons' reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made. The police blotter shall be open for inspection by the public at any time when the custodian's office is open for business and the 'arrest list' or the police 'blotter' is not actually being used for the making of entries therein."

But today, this ruling seems forgotten. In our study, no police department technically met our requirement for strict interpretation of the law. To comply with the expectations of law, police officials could have provided a copy of the computer logs with information on arrests included, or they could have provided a copy of all incident reports that resulted in arrests...."

A Critical Ruling in Tennessee

The Tennessee Supreme Court has ruled that local law enforcement agencies are not exempt from the state's open-records law, overturning a lower court ruling that would have allowed them to keep many files from the public's view.

The May 25 ruling was a victory for The Jackson Sun newspaper, which has been seeking law enforcement and other public records since it filed a lawsuit against the city in 2004.

It was a significant ruling in the eyes of many press and open-government advocates.

"The privilege would have given any law enforcement agency in the state a blanket opportunity to withhold any information they wanted," said Rick Hollow, general counsel for the Tennessee Press Association.

In 2004, reporters for the newspaper requested police records of interviews made by officers who stopped pedestrians and motorists based on reasonable suspicions, but never arrested anyone.

The field interviews were recorded by date and time and included only basic information, such as names, addresses, physical descriptions, type of car and sometimes a photograph.

The police department refused to allow the newspaper to see the records, claiming they were helpful for identifying potential suspects and witnesses to crimes in certain areas.

Jackson Sun Publisher Ed Graves said there were some concerns that the police were racially profiling individuals. According to court records, 80% of the people questioned were black

From the SPJ Senator Secrecy sweepstakes...

Please make a quick call to your state's senators today. We need all the help we can get in smoking out "Senator Secrecy," the legislator who put a secret hold on the proposed Open Government Act, which could significantly reform FOIA.

All the phone numbers and background information you need are posted here:

http://www.spj.org/ogahold.asp

Please post the results of your queries using this form:

http://www.spj.org/ogahold-form.asp

We need everyone pulling together to complete this exercise as quickly as possible. There is no such thing as "duplicated effort." When you have your senators' offices on the line, please make it clear that you support the Open Government Act and expect and expect your elected officials to do the same.

Thanks so much!

C

Christine Tatum

National President, Society of Professional Journalists

Assistant Business Editor, The Denver Post

Finding the Secret Senator...

OK, folks: it's on.

What began as a half-baked idea on Memorial Day weekend has taken form, and we need your help finding the rascal who placed a secret hold on the FOI reform bill in Congress. That's right: an unnamed U.S. Senator would like to stall meaningful FOI reform through secrecy...

If you can't get outraged about this, you lack a pulse.

SPJ has graciously agreed to host our outing party, at www.spj.org

Call your Senator now! This is fun!

CD

New Book on Government Secrecy....

The inestimable Ted Gup has a new book coming out...and it's on secrecy! Ted, a longtime friend to many of us in the FOI community, a former staff writer for the Washington Post and Time magazine, is the author of Nation of Secrets: The Threat To Democracy And The American Way Of Life, (Doubleday, June 2007)

The blurbs are fabulous:

"Nation of Secrets is an eye-opening and very important book. Ted Gup provides many new illustrations of the excesses of governmental and corporate secrecy�but he also does something even more significant. He connects hundreds of items from the news of recent years into a pattern that shows how unbalanced America's approach to secrecy has become. I thought I was familiar with the issues Ted Gup addresses, but I learned something from every chapter of this book."
--James Fallows, correspondent for The Atlantic Monthly

"A generation ago, 'the public's right to know' was a U.S. media cliché, but today's silence is deafening. Nation of Secrets explains why."
--Kevin Phillips, New York Times bestselling author of American Theocracy

"Nation of Secrets brilliantly illuminates the landscape of secrecy in which we live. In a perceptive account illustrated with vivid case studies, Ted Gup shows how secrecy is corrupting our institutions and squandering our democratic heritage. Before the tide of secrecy overwhelms the tools of self-government, this gripping book may prompt readers to ask: Is a nation of secrets what we really want to become?"
--Steven Aftergood, Project on Government Secrecy, Federation of American Scientists


From much more, see http://www.nationofsecrets.com/index.html

CD

EXERCISE YOUR FREEDOM...I NEED YOUR HELP!

HELP ME FIND SENATOR SECRECY

The NFOIC, SPJ, and your nation, needs your help.

On April 12, the Senate Judiciary Committee unanimously passed the Open Government Act, sponsored by Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX).

The bill, which has garnered support from more than 100 organizations, would improve the Freedom of Information Act (FOIA) by reducing delays in releasing government records requested under FOIA by creating incentives for public officials to comply with the law.

The House passed a similar measure earlier this year but the bill was blocked from reaching the Senate floor for a vote May 24 when an unknown Senator placed a secret hold on the bill.

A secret hold. On an FOI bill. Think about that a minute.

This is not the first time a secret hold has been used to block open government legislation from reaching the floor. In Aug. 2006, Sen. Ted Stevens (R-AK) put a hold on a bill to create a searchable public database of all federal grants and contracts. Steven's role was revealed only after online public advocates and journalists forced senators to go on the record about whether they placed the hold or not.

And that’s what we want to do right now: get them on the record and find out who Senator Secrecy is...

HOW YOU CAN HELP:

Check www.spj.org and look for the link with FIND THE SECRET SENATOR — and see if your senator has been called already.

If not, or if they are not on the record yet, call them right away.

Ask them, quite simply, and POLITELY:

“Did Sen. XXX place a hold on the Open Government Act?”

Send us your answer — e-mail to daviscn@missouri.edu and we’ll get the response online immediately.

It’s fun.

It’s for a good cause.

It’s a fine way to exercise those First Amendment rights on a Memorial Day break.

Cue the Irony: Secret Hold Placed on FOI Bill

This threatens to RUIN my Memorial Day weekend, people....

For the second time in as many years, a member of your United States Senate has placed a SECRET hold on a transparency bill -- this time it's the Open Government Act.

"Regrettably, an anonymous Republican hold is stalling this important Freedom of Information Act legislation, needlessly delaying long-overdue reforms to strengthen FOIA and to protect the public's right to know," said Sen. Patrick Leahy (D-VT), a co-sponsor of the bill along with Sen. John Cornyn (R-TX).

"It is both unfortunate and ironic that this bipartisan bill, which promotes sunshine and openness in our government, is being hindered by a secret and anonymous hold. This is a good government bill that Democrats and Republicans alike, can and should work together to enact," Sen. Leahy said in a May 24 floor statement.

He doesn't sound half as angry as I am. More to come on this. I have an idea....

CD

It's Worth Remembering: Geneaologists Are Natural Allies

From the Seattle Times:

"For every generation in this country there has been a war. And with wars come millions of records that can shed light on family history, detailing everything from the color of soldiers' eyes to what their neighbors may have said about them.

On Thursday, Ancestry.com unveils more than 90 million U.S. war records from the first English settlement at Jamestown in 1607 through the Vietnam War's end in 1975. The site also has the names of 3.5 million U.S. soldiers killed in action, including 2,000 who died in Iraq.

"The history of our families is intertwined with the history of our country," Tim Sullivan, chief executive of Ancestry.com, said in a telephone interview. "Almost every family has a family member or a loved one that has served their country in the military."

The records, which can be accessed free until the anniversary of D-Day on June 6, came from the National Archives and Records Administration and include 37 million images, draft registration cards from both world wars, military yearbooks, prisoner-of-war records from four wars, unit rosters from the Marine Corps from 1893 through 1958, and Civil War pension records, among others.

The popularity of genealogy in the U.S. has increased steadily alongside the Internet's growth. Specialized search engines on sites like Ancestry.com, Genealogy.com and FamilySearch.com, along with general search portals like Yahoo Inc. and Google Inc., have helped fuel interest...."

If your coalition hasn't reached out to state historical and genealogy groups, now is a perfect time....

CD

In Delaware, the AG steps up

From today's Wilmington Journal comes news that the state's AG will support a bill giving his office jurisdiction to represent citizens in FOI jams, much to the chagrin of at least one powerful lawmaker:


"A powerful opponent of previous legislation related to sunshine laws expressed concern Tuesday after Delaware Attorney General Beau Biden announced his support of a bill that would allow his office to represent citizens who file Freedom of Information Act cases against the state.

Senate President Pro Tem Thurman Adams Jr., D-Bridgeville, said he worries the proposed bill could stretch the Attorney General's Office thin. Adams has put the brakes on previous FOIA bills, including two this session that remain stalled in the Senate Executive Committee, which he chairs.

Under current law, the Attorney General's Office represents the state in FOIA cases brought by the public, often requiring citizens to pay their own legal fees as they seek documents from state agencies.

A bill, which is expected to be introduced when legislators resume session next month, would allow a person who has been denied information by a state agency to go to the Attorney General's Office for a determination on whether the agency is violating the sunshine law...."

Senate President Pro Tem Thurman Adams Jr., D-Bridgeville, said he worries the proposed bill could stretch the Attorney General's Office thin. He said that the AG risks "opening up a bigger can of worms than he thinks because they'll have to deal with a lot of off-the-wall complaints."

Ah, you gotta love that: a state attorney general receiving inquiries on open government = "a can of worms."

And I thought we called it democracy?

CD

Hattiesburg Scalia Flap Ends

The Hattiesburg American, much to its credit, just won a three-year fight for a piece of paper:

The U.S. Justice Department on Tuesday agreed that the Hattiesburg American was improperly denied access to documents into an investigation of the seizure of reporters' tapes of a 2004 speech by Supreme Court Justice Antonin Scalia.

The decision comes more than two years after the newspaper appealed the U.S. Marshals Service's refusal to allow access to records pertaining to the seizure of tapes of Scalia's speech at Presbyterian Christian School in April 2004.

anice McLeod, associate director of the U.S. Department of Justice Office of Information and Privacy, determined that the Marshals Service acted inappropriately when it denied the newspaper access to investigation records.

The investigation began after a marshal seized the tapes of Hattiesburg American reporter Antoinette Konz and Associated Press reporter Denise Grones.

The marshal said she acted at the direction of Scalia.

The Hattiesburg American and the Associated Press later successfully sued the Marshals Service. Scalia also sent written apologies to the reporters, saying the marshal had not acted at his direction.

However, the Hattiesburg American's Freedom of Information Act request for documents related to the investigation was denied by the Marshals Service. The newspaper had requested a copy of the final report related to the investigation, transcripts of interviews conducted during the investigation and guidelines for handling the media provided to agents who provide security for judicial officers.

Keep Your Eye on This....

An excellent piece in the New York Times today about the use of court records for anti-snitch groups. Note the Justice Department's ominous language:

There are three “rats of the week” on the home page of whosarat.com, a Web site devoted to exposing the identities of witnesses cooperating with the government. The site posts their names and mug shots, along with court documents detailing what they have agreed to do in exchange for lenient sentences.

Last week, for instance, the site featured a Florida man who agreed in September to plead guilty to cocaine possession but not gun charges in exchange for his commitment to work “in an undercover role to contact and negotiate with sources of controlled substances.” The site says it has identified 4,300 informers and 400 undercover agents, many of them from documents obtained from court files available on the Internet.

“The reality is this,” said a spokesman for the site, who identified himself as Anthony Capone. “Everybody has a choice in life about what they want to do for a living. Nobody likes a tattletale.”

Federal prosecutors are furious, and the Justice Department has begun urging the federal courts to make fundamental changes in public access to electronic court files by removing all plea agreements from them — whether involving cooperating witnesses or not.

“We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation and harassment,” a Justice Department official wrote in a December letter to the Judicial Conference of the United States, the administrative and policy-making body of the federal court system.

“The posting of sensitive witness information,” the letter continued, “poses a grave risk of harm to cooperating witnesses and defendants.”

Video from NFOIC sessions coming soon...

Catch the first of eight streaming videos from the National Freedom of Information Coalition Summit sessions in Seattle May11-12. Most of those will be available later this week, but the panel discussion, ""Sports Secrecy: Stadium Deals in the Luxury Suites?" is already available.

Special thanks to the TVW, Washington State's Public Affairs Channel, for recording all of these sessions. What a great resource!

The link to the NFOIC broadcast page is here.
or the main site is www.tvw.org

We're back!

The blog suffered while I was in Seattle co-hosting, along with the Washington Coalition for Open Government, the 2007 FOI Summit. I'm afraid I was just too busy to even think about it!

But we've had a most productive weekend, and we're even picking up some nice coverage in the Seattle Times (thanks Mike!)

We'll also soon have lots of content on the NFOIC site, including video of sessions!

CD

Texas passes shield legislation....Congress next?

The Associated Press is reporting that Texas is moving on a shield law:

The Texas Senate approved a bill May 1 giving journalists limited privilege against being forced to testify in court or disclose confidential sources.

Dubbed the “Free Flow of Information Act,” the bill had struggled to win support of lawmakers concerned it would hinder prosecutors’ ability to gather evidence in criminal cases.

The bill’s sponsor, Sen. Rodney Ellis, D-Houston, said the bill was needed to protect confidential sources who might not come forward with valuable information for fear of being exposed.

“This is to protect the whistleblowers,” Ellis said after the bill passed the Senate 26-5. The bill now goes to the House for consideration. The legislative session is scheduled to end May 28.

“The press plays a vitally important role in our democracy and must be protected from government intimidation,” Ellis said.

News groups lobbied for the bill as necessary to protect sources and rein in prosecutors who might try to use the news media as an investigative arm of their office.

http://www2.blogger.com/img/gl.link.gifShield Legislation Back in Congress

Legislators will try again to pass a federal shield law:

Reps. Rick Boucher (R-Va.) and Mike Pence (R-Ind.) are teaming Wednesday (May 1) to introduce the Free Flow of Information Act of 2007.

Similar bills have been introduced before, but that was in a Republican-controlled Congress and with opposition from the Bush administration.

The bill "sets criteria which must be met before information can be subpoenaed from reporters in any federal criminal or civil matter," say the representatives, adding that it "carefully balances the public interest in the free flow of information against the public interest in compelled testimony."

The bill looked like it had legs back in 2005, powered by the imprisonment of Judith Miller of the New York Times and subpoenas of reporters who had reported on the Wen Ho Lee espionage case.

The Military Cracks Down on Blogs...

An interesting development in the realm of military control of information. Wired says that "the U.S. Army has ordered soldiers to stop posting to blogs or sending personal e-mail messages, without first clearing the content with a superior officer, Wired News has learned. The directive, issued April 19, is the sharpest restriction on troops' online activities since the start of the Iraq war. And it could mean the end of military blogs, observers say.

Military officials have been wrestling for years with how to handle troops who publish blogs. Officers have weighed the need for wartime discretion against the opportunities for the public to personally connect with some of the most effective advocates for the operations in Afghanistan and Iraq -- the troops themselves. The secret-keepers have generally won the argument, and the once-permissive atmosphere has slowly grown more tightly regulated. Soldier-bloggers have dropped offline as a result.

The new rules (.pdf) obtained by Wired News require a commander be consulted before every blog update.

"This is the final nail in the coffin for combat blogging," said retired paratrooper Matthew Burden, editor of The Blog of War anthology. "No more military bloggers writing about their experiences in the combat zone. This is the best PR the military has -- it's most honest voice out of the war zone. And it's being silenced."

Army Regulation 530--1: Operations Security (OPSEC) (.pdf) restricts more than just blogs, however. Previous editions of the rules asked Army personnel to "consult with their immediate supervisor" before posting a document "that might contain sensitive and/or critical information in a public forum." The new version, in contrast, requires "an OPSEC review prior to publishing" anything -- from "web log (blog) postings" to comments on internet message boards, from resumes to letters home.

Failure to do so, the document adds, could result in a court-martial, or "administrative, disciplinary, contractual, or criminal action."

Despite the absolutist language, the guidelines' author, Major Ray Ceralde, said there is some leeway in enforcement of the rules. "It is not practical to check all communication, especially private communication," he noted in an e-mail. "Some units may require that soldiers register their blog with the unit for identification purposes with occasional spot checks after an initial review. Other units may require a review before every posting."

But with the regulations drawn so tightly, "many commanders will feel like they have no choice but to forbid their soldiers from blogging -- or even using e-mail," said Jeff Nuding, who won the bronze star for his service in Iraq. "If I'm a commander, and think that any slip-up gets me screwed, I'm making it easy: No blogs," added Nuding, writer of the "pro-victory" Dadmanly site. "I think this means the end of my blogging."

OK, now this is COOL!

From the folks at WikiFoia:

One main purpose of the site is to provide an extensive and growing "How To" guide for practical, concrete assistance for regular citizens who are thinking about filing an open records request in any state.

We're also collecting news, resources, legal information, breaking court cases, and more, including a space for considerable information about the open records landscape in each state.

Using a Wiki format allows anyone who drops in to add or edit information. We hope that as it grows, open records advocates in each state will use the easy-to-edit features of a Wiki to create a growing library of information.

Most of us are aware of the basic idea of a Wiki—they allow a group of people with a common interest to collaborate on creating informational content online. Wikipedia is the best known example.

With WikiFoia, people who are interested in using or learning about state sunshine laws can come together to share their wisdom and experiences. Some citizens feel quite intimidated by the open records process and wonder if they should leave it up to reporters and attorneys to do that kind of work.

With WikiFoia we hope to create a fairly informal and collaborative environment that reduces the "FOIA is only for experts" fear.

Also, since open records are constantly under review and revision, we hope that this online community—where anyone can add new information--will become a place well-suited to keeping up with those changes.

Additionally, we are collecting ideas for "internet-based transparency reforms"—an emerging area of citizen activism to encourage school districts, cities and counties to post a significant amount of information online to reduce the need for FOIA requests. (One school district in Illinois is considering a proposal to post every open records request it receives online, along with the requested documents.)

Please take a look at www.WikiFoia.org . Your comments and insights are welcomed. If you maintain an open records website, we'd appreciate it if you would consider adding a link to the WikiFoia. If the WikiFoia doesn't already include a link to your website, please feel free to add your links and any information you'd like to share.

For more information or any questions, please e-mail info@WikiFoia.org .

Thank you!
--

Great News from Washington State!

From the Great State of Washington, home of the 2007 FOI Summit:

Taxpayers may see more government records, and news reporters can protect their sources without being jailed under two bills Gov. Chris Gregoire signed into law.

The measures were among some two dozen that Gregoire signed on April 27.

Under the new sunshine law, a state committee is to examine more than 300 exemptions to the state's public-records act, a voter-approved law that spells out which government documents must be publicly disclosed.

Attorney General Rob McKenna requested the measure, which he said would repair years of damage done by laws and rules that keep government information out of taxpayers' view.

Voters overwhelmingly approved the state's public-records law by initiative in 1972.

The measure called for disclosure of campaign finances, lobbyist activity, financial affairs of elected officers and candidates, and access to public records.

When it passed, there were only 10 exemptions to the public-records section. Since then, hundreds of exemptions have been introduced.

Gregoire also signed a measure that protects journalists from being jailed for refusing to reveal their confidential sources of information.

Of Spies, and Secrets...

From the Times today comes a tale of spies and secrets...

Concerned about the growing dependence of the nation’s spy agencies on private contractors, top intelligence officials have spent months determining just how many contractors work at the C.I.A., D.I.A., F.B.I., N.S.A. and the rest of the spook alphabet soup.

Now they have an answer. But they cannot reveal it, they say, because America’s enemies might be listening.

Ronald P. Sanders, chief human capital officer for the director of national intelligence, said that because personnel numbers and agency budgets were classified, he could not reveal the contractor count.

“I can’t give you anything that would allow you to impute the size of the I.C. civilian work force,” Mr. Sanders said, using shorthand for “intelligence community” in a telephone briefing that covered everything about the contractor survey except its core findings.

Mr. Sanders said the study did find that about 25 percent of the intelligence work now contracted out resulted from personnel ceilings imposed by Congress. But 25 percent of what, he said he could not disclose.

Steven Aftergood of the Project on Government Secrecy at the Federation of American Scientists, said the decision not to reveal the numbers was a sign of dysfunctional policies.

“It reveals how confused the government is about what is really sensitive and what is not,” Mr. Aftergood said. “What would Osama bin Laden do with the fraction of intelligence workers who are contractors? Absolutely nothing.”

Steve is dead on here: we must begin a robust debate in this nation over what is quite properly a secret and what is just secrecy for operational CYA....

From Florida, A Charter School's Woes and E-Mail Records...

Florida Today has a fascinating tale of a charter school's woes, and e-mail sunshine violations? It's a heck of a read....

The Florida Sunshine Law prohibits members of public boards from discussing business outside public meetings -- including through e-mail.

But a review of electronic mail conversations among former leaders of Explorer Elementary and Middle School reveal a handful of possible violations by two board members in the month leading up to the charter's collapse.

"They can argue that they're just exchanging information, but the fact of the matter is it could have been a discussion that citizens would have wanted to take part in or be informed about," said Adria Harper, director of the First Amendment Foundation in Tallahassee.

FLORIDA TODAY requested e-mail records of Explorer's former principal, Ruben Rosario, in hopes of uncovering information about the problems that led to the district takeover last month.

Six weeks' worth turned up a series of exchanges between the school's former board president, Greg Gaddis, and former board secretary Patty Satter-
white. Most of the e-mails discussed administrative items, including preparation and distribution of meeting minutes.

But other e-mails sent separately from Gaddis and Satterwhite to the rest of the board directly addressed and solicited responses to significant issues, including the schools' finances and employment policies, that were scheduled for future board action.

In one e-mail, Gaddis suggested approving a revised audit "outside of our official meeting." In another, Satterwhite referred to two votes the board took through e-mail. Both e-mails appear to violate the state's open-government law...

Give us a hand...unmask a senator!

You know that part in Nacho Libre when Nacho has his mask ripped off....what? You haven't seen Nacho Libre? What's keeping ya?

If you HAD, you would know what the Sunlight Foundation is about to do to some unwitting U.S. Senator....

Yet again an anonymous Senator has placed what is known in the Senate as an "anonymous hold" on legislation that would increase transparency (I know, the irony is killing me...). You may recall this same stunt last year....anyway, this time a secret hold has been placed on a bill, S. 223, that would mandate that Senators file their campaign finance reports electronically. This process would not only make these reports more readily available to the public but would also save money and resources.

Secret holds are in such disrepute that earlier this year the Senate itself banned the practice, although the bill containing that provision has yet to become law. But until secret holds are banished forever, we need your help in exposing the culprit who is blocking consideration of the electronic filing requirement for Senate campaign finance reports.

We need your help to find out who placed this secret hold! Call your Senators and ask them if they are the one with the secret hold on S. 223. Then report back to the Sunlight Foundation's website. They have a list of Senators, organized by state, and their contact info. If a Senator issues a denial they will indicate that next to their name....SO DON'T CALL IF THEY ALREADY ARE ON THE LIST AS NO......

Quote of the Week...

From the Argus Leader in South Dakota comes the quote of the week:

South Dakota's Supreme Court will hear oral arguments April 23 in the dispute over whether an invitation list to a governor's pheasant hunt is a public record.

The court's argument schedule, released Thursday, sets the hunt-list case for 11 a.m. April 23.

Oral arguments generally last 50 minutes, with each side getting 20 minutes to present a case, and the party that brought the appeal getting a final 10 minutes for rebuttal.

The case involves the Argus Leader's attempt to get the invitation list to the 2005 pheasant hunt sponsored by Gov. Mike Rounds. The hunt is a long-standing event billed as a way to showcase South Dakota for business prospects.

Jim Hagen, who headed the state Department of Tourism and State Development when the case started, is named as defendant.

The newspaper says the information should be available to the public, which has a right to know what government is doing. The Argus Leader argued in circuit courts that even though private money paid for the hunt, Hagen's agency - a taxpayer-supported state office - helped arrange and coordinate the event.

The basic concern is unchanged as the arguments go to the Supreme Court, says Randell Beck, executive editor of the Argus Leader.

"The over-arching point to our ongoing efforts to disclose the names of those invited to the pheasant hunt boils down to a very simple concept: Why not?'' Beck said. "In all the legal back and forth over this issue, the state has yet to tell us why the people of South Dakota don't deserve to know. That's because there is no good reason. It's pretty simple.''

The state argues that revealing the list of invitees could give other states a look at South Dakota's business recruitment strategy. Rounds used that argument early in the dispute when asked for the list, saying it would "provide economic development agencies of other states or cities with nothing less than a list of businesses which are willing to relocate or expand if given the proper business climate.''

Circuit Judge Max Gors ruled for the state in April. He noted that state law says records required to be kept by an agency are open to the public, but no law requires the invitation list to be kept.

Taken to its logical conclusion, Gors said, the Argus Leader argument "would require state agencies to maintain every scrap of paper generated by state government and to allow public inspection.''

Well, yeah, Judge Gors, that kinda what this whole sunshine law thingie is all about...

Sanity 1, Secrecy 0

Calmer, more rational heads have prevailed in an access dispute I have been following in Louisville:

From FOI warrior and erstwhile environmental reporter James Bruggers comes the news:

The U.S. Army Corps of Engineers has posted maps on its Web site showing how people who live downstream from the Wolf Creek Dam would be affected by flooding in the event of a breach.

As recently as last month, corps officials refused to make electronic versions of the maps public, citing terrorism fears, after initially saying they would do so.

Corps spokesman Bill Peoples said yesterday that the agency, after a thorough review, decided to make an exception to its policy of not allowing widespread distribution of the maps because the dam is considered a high risk for failure.

"We look at this as a special circumstance," he said. "It's always a balancing act between the security concerns we have as an agency … and what the public needs to know.

"We still have security concerns."

The corps turned down The Courier-Journal's request to obtain electronic versions of the maps in February, citing two exemptions under the Freedom of Information Act....

Now, despite the contention of one source in the story that the media has blown (OK, so his word was "blowed"...) the story out of porportion, wouldn't you generally want to know more, more -- not less -- about a dam upriver from you that is earthen, old and leaky?

CD

FOI at work...

Jim Leusner, an FOI warrior, has just published a piece that uses FOIA to detail NASA's payments to the seven Columbia astronauts. It's an interesting look at NASA policy in the wake of a terrible tragedy....

From the Orlando Sentinel:

NASA paid $26.6 million to the families of seven astronauts who died aboard space shuttle Columbia -- a settlement that has been kept secret for more than 21/2 years.

The space agency recruited former FBI Director William Webster, also a former federal judge, to act as a mediator and adviser in negotiating the out-of-court settlements, according to documents released to the Orlando Sentinel through a federal Freedom of Information Act request.

The newspaper's request yielded just seven pages of documents that leave many questions unanswered, including exactly when the settlements occurred.

In an interview with the Sentinel, Webster, also a former CIA director, said he was bound by confidentiality and couldn't discuss details of the agreements, but defended the process as proper.

"The members of the [survivors'] families wanted this to be a private matter," said Webster, a consulting partner in Washington with the international law firm of Milbank, Tweed, Hadley & McCloy. "They were healing, and they were ready to discuss, properly, their rights. . . . Everyone felt it had a better chance of coming together without seeing their name in lights."

In brief written responses to Sentinel questions Friday, NASA spokesman Allard Beutel said little about the settlements, citing family privacy. He said the money came from the agency's budget via a 2004 congressional appropriation.

"The Columbia astronauts were our friends and co-workers," Beutel wrote. "Our concern always has been with the crew's families and their loss, and as a result NASA didn't announce details of the settlement in an effort to protect the personal privacy of the Columbia families."

Former NASA Administrator Sean O'Keefe and ex-general counsel Paul Pastorek, who helped set up the settlement process, did not return phone calls and e-mails.

Dr. Jon Clark, widower of astronaut Laurel Blair Salton Clark, said NASA was "deferential" in dealing with the families through a turbulent period in their lives.

"We were in a state of shock," he said. "To go the lawsuit route, it's very painful and very protracted. So we settled."

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said he understood the families' desire for privacy but criticized NASA for not disclosing the settlements earlier. NASA, he said, is behaving as if the settlement is a source of embarrassment.

"It's not NASA's money. It's public money," he said.

Check Out The Watchdog Column...

My good pal Jennifer LaFleur, a computer-assisted reporting guru and all-around FOI warrior, has launched a citizen watchdog column in the Dallas Mornings News. It has lots of great tips and FOI stories, and is well worth bookmarking. Way to go, Jennifer!

Her latest column, on how Texas citizens can background anybody using public records, is a must read.

So Many Deserving Candidates...

The Bush administration and the Defense Department are among the winners of the 2007 Jefferson Muzzle awards, given Tuesday by a free-speech group to those it considers the most egregious First Amendment violators in the past year.

The Bush administration appears on the list, compiled by the Thomas Jefferson Center for the Protection of Free Expression, for its efforts to discourage, modify and sometimes censor government scientists’ reports and studies to be more in line with the administration’s political policies, notably on global warming, the center said.

“The number of major scientists who have come forward and indicated they were constrained by the administration viewpoint is quite worrisome,” center director Robert M. O’Neil told The Associated Press. “There have been similar concerns arising in other areas but we wanted to focus specifically on climate change as the most invaded or intruded area.”

Florida Opens Dockets...

From the First Amendment Center:

The Florida Supreme Court issued emergency rules yesterday designed to stop the improper sealing of court records and dockets in civil cases, but delayed a decision on whether they also should cover criminal cases.

The unsigned, unanimous opinion requires court clerks to post notices on their Web sites and courthouses after a record is sealed and allows citizens to then challenge those decisions. Courts are also prohibited from making case, docket and other identifying numbers confidential.

“Most significant for our purposes here ... the removal from public view of all information acknowledging the existence of a case is expressly not allowed,” the justices wrote.

That’s exactly what happened in Broward County with divorces and other civil cases involving more than 100 prominent people, including television personalities, judges and elected officials.

The Miami Herald last year disclosed the hidden docket after obtaining case numbers and names, but not sealed documents, through a lawsuit...

Closing the Statehouse Door?

From the Associated Press comes a fresh outrage....

The move was as much a surprise to most legislators as it was to reporters. Georgia House Speaker Glenn Richardson stepped to the podium two weeks ago on one of the busiest days of the legislative session and introduced a ban on reporters from the chamber while lawmakers are in session.

Within hours, the proposal was adopted and Georgia joined a growing number of states restricting journalists' access to lawmakers while legislative bodies are in session.

According to an Associated Press survey, legislative leaders in at least 38 states have restricted reporters from accessing lawmakers on the floors of at least one chamber during a floor session. Georgia joined Kansas this year in seemingly reviving the trend after several years in which few - if any - legislative leaders moved to restrict access.

Often, the measures are touted as a way to maintain order so legislators can focus on the debate at hand, or as a way to give lawmakers more space to maneuver through increasingly crowded rooms.

In Kansas, a new House Speaker imposed a similar ban on reporters this year in hopes of preserving decorum. In Georgia, the House leader argued reporters were given more leeway than their counterparts in other states.

"It just says the media is not to be given more rights than the public," said Richardson, a Republican from the Atlanta suburb of Hiram, before the change was approved on a 132-29 vote.

Critics contend it furthers limits the public's access to elected officials and restricts monitoring of government.

"This is another effort to impede public access to government proceedings," said Hollie Manheimer of the Georgia First Amendment Foundation. "By limiting the flow of information to the public, this is a step backward."

Wolf Freed....

From the San Francisco Chronicle

Josh Wolf, the blogger whose record 7 1/2 months in federal prison stirred debate about who qualifies as a journalist and what legal protections they should receive, was freed today after releasing video footage sought by prosecutors about an anarchist protest.

[Hear Josh Wolf's news conference (.mp3)]

Wolf, 24, held in contempt by a federal judge last August for defying a grand jury subpoena, walked out of the Federal Correctional Institution in Dublin at mid-afternoon after his lawyers and federal prosecutors reached a compromise, with the help of a federal magistrate.

Wolf posted the uncut video on his Web site, gave prosecutors a copy and denied under oath that he knew anything about violent incidents at the July 2005 protest. In return, his lawyers said, prosecutors agreed not to summon him before the grand jury or ask him to identify any of the protesters shown on his video.

Prosecutors' withdrawal of their demand for his testimony was the key to the deal, Wolf told reporters outside the prison gate.

"Journalists absolutely have to remain independent of law enforcement,'' he said. "Otherwise, people will never trust journalists.''

Asked about his imprisonment -- the longest-ever for a U.S. journalist for withholding information -- Wolf said, "Absolutely, this was worth it. I would do it again if I had to.'' He also said his case showed the need for a federal "shield law'' that would protect journalists, including bloggers, from having to disclose confidential sources or unpublished material.

Tennessee Series Generates Huge Response

From Editor & Publisher:

The Knoxville News Sentinel's open-meeting lawsuit against 20 current and former members of the county commission has struck a chord with readers.

Hundreds of them. Too many letters and e-mails to print.

It is the very response the American Society of Newspaper Editors might hope for as it concludes Sunshine Week, promoting open government at all levels.

"There is so much negative feedback in this business. Sometimes you get the feeling that everybody hates you and you never can get anything right," editor Jack McElroy said. "To latch onto something where people are supportive of you and enthusiastically so, it is really nice to feel."

The paper's lawsuit contends that Knox County commissioners made private deals before they appointed eight new members to fill term-limited vacancies Jan. 31 in a process steeped in small-town, good ol' boy cronyism and nepotism.

Three of the eight appointees had relatives on the commission, and 13 of the 19 commissioners either work for the county or have relatives that do. None abstained from voting as they filled the eight commission seats and four county offices following a Supreme Court order to recognize term limits adopted by voters in 1994.

It's illegal in Tennessee and most other states for members of a county commission or city council to meet in private to discuss public matters, except in limited circumstances.

But Tennessee's law has few teeth. News media groups, citizen groups and open government advocates are urging lawmakers to toughen the sunshine law. Among the proposals: Impose fines on public officials who close meetings or withhold documents. And last month, Gov. Phil Bredesen announced his plan to establish an ombudsman to help people denied access to public records.

Meantime, the News Sentinel's lawsuit may not be resolved for months. An initial hearing has yet to be set. And thenew commission appointments only run through 2008.

Sunshine Week Column for You....

In Sunday's Kansas City Star...

Sunshine Week is an occasion for thinking about the importance of access to governmental information — not the sexiest of topics, admittedly, but sometimes the things we take for granted have a way of sneaking up on us.

Every week is Sunshine Week at the National Freedom of Information Coalition, a nonprofit academic center at the University of Missouri School of Journalism. My job consists of helping a never-ending array of requesters with information requests languishing at all levels of government, from federal agencies to local boards.

Think that freedom of information is some special-interest fetish of the press? Think again...

While the Beltway Journalists Sing....

Josh Wolf rots in jail...

The SF Bay Guardian's Bruce Brugmann says it's a shame, and calls out Kurtz:

Marvelous. Simply marvelous. While ten of the l9 witnesses testifying in the Libby trial were singing journalists, and three of them were central to securing Libby's conviction, Howard Kurtz, the media critic of the Washington Post and the voice of the inside-the-beltway media establishment, did not raise any of the obvious issues and questions in this unprecedented mass outing of sources by journalists in federal court in Washington, D.C. It was a "spectacle that would have been unthinkable only a few years ago," as Adam Liptak put it rightly in the New York Times March 8.

Instead, one day after the Libby guilty verdict, Kurtz went after Josh Wolf, the longest jailed journalist in U.S. history for contempt of court, in his March 8 column headlined "Jailed Man Is A Videographer And a Blogger but Is He a Journalist?" Kurtz, who tosses softballs about every Sunday morning in his media show on CNN, hit Josh hard with a lead that said, "He is being cast by some journalists as a young champion of the First Amendment, jailed for taking a lonely stand heavy-handed federal prosecutors."

Then: "But Wolf's rationale for withholding the video, and refusing to testify, is less than crystal clear. There are no confidential sources involved in the case. He sold part of the tape to local television stations and posted another portion on his blog. Why, then, is he willing to give up his freedom over the remaining footage?"

And then he quoted, not a media lawyer nor a journalist with knowledge of
California law, but a professor who ought to be flunked out of law school (Eugene Volokh, a law professor at the University of California Los Angeles). Kurtz quoted Volokh as saying without blushing, "It's one thing to say journalists must respect promises of confidentiality they made to their sources. It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources. When something is videotaped in a public place, it's hard to see even an implied agreement of confidentiality."

To which I ask....whatthe?

FOI Reforms Move Out of Committee!

Big News out of Washington:

The House Oversight and Government Reform Committee today approved HR 1309, the Freedom of Information Act Amendments of 2007, sponsored by William Lacey Clay, D-MO, Todd Platts, R-PA, and Henry Waxman, D-CA.

The bill is intended to force broad changes in government agency performance and response to FOIA requests.

The committee also cleared two other open government bills, one overturning President Bush’s order that blocked release of presidential records, the other requiring disclosure of donors to presidential libraries. All are expected to be offered for floor vote within the next week.

Also next week, Sens. Patrick Leahy, D-VT, and John Cornyn, R-TX, will introduce the 2007 version of their OPEN Government Act. The major difference between the House and Senate bills may be the final section of the House bill, which creates a presumption of openness for government records and direct agencies to release information if they do not reasonably foresee that disclosure would be harmful.

In effect, this reverses the Ashcroft memo – withhold information if there is any legal basis to do so. This still stands as Justice Department guidance to all federal agencies. Rep. Lamar Smith, R-TX, who sponsored FOIA reform in the last Congress, introduced a bill identical to Clay”s except for this section. At Thursday’s hearing, Republicans tried but failed to strike this section.

Here’s what else the “Freedom of Information Act Amendments of 2007” does:

-- Put pressure on the agencies to meet the 20-working day response deadline by waiving search and copying fees if the deadline isn’t met.

-- Requires agencies to establish FOIA hotlines and request tracking systems.

-- Creates an independent ombudsman, located in the National Archives, to help requesters resolve disputes without resorting to litigation.

-- Establishes the requester’s right to recover legal fees if they obtain disputed records from an agency after filing suit.

-- Broadens the definition of a journalist for fee waiver purposes to include most freelancers and bloggers.

-- Mandates broader and more specific performance reporting to heighten agency accountability for service quality.

-- Direct agencies to indicate the specific exemption being cited at the location of any redaction in a document.

-- Makes clear that government records held by private entities are covered by FOIA.

-- Requires that any bill amending the Freedom of Information Act include a clear marker declaring that intent.

-- Directs the Office of Personnel Management to report on the adequacy of FOIA staffing.

He's Baaaaaaack.....

From the Coalition of Journalists for Open Government:

Once again, an urgent request for action in response to efforts by Sen. Jon Kyl, R-AZ, to criminalize the leaking – and publishing – of classified information.

Sen. Kyl first sought to attach to a data mining bill being considered by the
Judiciary Committee what can only be described as a backdoor approach to an official secrets act. When the bill was held over, at least in part because its sponsor considered the amendment unfriendly, Sen. Kyl withdrew it and then submitted a rewritten version as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 commission. That bill could be voted on as early as mid-week.

The modified amendment is not as sweeping as the earlier version but it is still dangerous revision of the Espionage Act and its chill would inevitably extend far beyond the classified information included. The new amendment makes it a crime to leak or “publish” any classified information contained in reports provided to Congress. These required reports -- 28 in all -- are detailed in three statutes identified in the amendment. (A copy is attached.)

Even as modified, the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the burden that the government must meet in order to prosecute a government leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information "in any manner prejudicial to the safety or interest of the United States". This lower standard could lead to a chilling of daily communications between the government and the media.

In addition, amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security, and that is reported in the local newspaper, the reporters and publisher could be prosecuted for informing local citizens that they may be at risk,

Once again, Sen. Kyl seeks to use the amendment procedure to avoid the give and take of hearing and debate and a full and thoughtful discussion of whether any new law involving leaks are needed.

From our soundings on the Hill, there is considerable concern that if the amendment is added to the 9/11 bill it could be approved by the Senate.

This is not the time to wait and see what happens. Please share this and impress on your members the urgency of raising all our voices.

Latest on Espionage Act stuff

From my pal Rick Blum for the Sunshine in Government Initiative:

The markup on S. 236 was postponed.

Senator Kyl dropped his original broad language yesterday afternoon and last night circulated narrower language that he intended to bring up. Feingold, the sponsor of S. 236, the data mining bill, postponed consideration of it until the next meeting. The narrower language is still problematic.

Here is the new language:

SEC. 4. PROTECTION FOR CLASSIFIED INFORMATION CONTAINED IN AN ANNEX TO A DATA MINING REPORT.

Except as specifically authorized by paragraph (b)(8) of section 3 of this Act, whoever, being an employee of the United States House of Representatives or Senate, or being entrusted with or having lawful possession of, access to, or control over, any classified information contained in an annex made available pursuant to paragraph (b)(8) of section 3 of this Act, and who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available such information to an unauthorized person, shall be fined under Title 18 of the United States Code or imprisoned not more than ten years, or both.