More on FOIA reform passing out of the Senate...

The newspapers have been remarkably -- and disturbingly -- quiet on a landmark event in FOI...

Secrecy News has the Congressional Record text here...

And, with apologies for the lengthy post, here is the official Judiciary Committe release:

WASHINGTON (Monday, August 6) – The U.S. Senate passed sweeping bipartisan legislation Friday that will streamline and increase government transparency. The OPEN Government Act of 2007 (S. 849), introduced by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas), a member of the panel, passed late Friday night by unanimous consent.

“For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information,” said Leahy, a long time leader on FOIA legislation and government transparency. “The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.”

The OPEN Government Act – the first major strengthening of FOIA in more than a decade – is expected to pass the House when Congress returns to session this September, and the President is expected to sign the bill.


Below is Sen. Leahy’s statement on the passage of the OPEN Government bill. Background summaries on the Kyl-Leahy Amendment and the Cornyn-Leahy Bill follow.
* * * * *
Contact: Tracy Schmaler, 202-224-2154

Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
The OPEN Government Act
Senate Proceedings
August 3, 2007

Mr. President, I am pleased that the Senate has passed the Leahy-Cornyn Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”), S.849, before adjourning for the August recess. This important Freedom of Information Act legislation will strengthen and reinvigorate FOIA for all Americans.

For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information. The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy.

I commend the bill’s chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. Since he joined the Senate five years ago, Senator Cornyn and I have worked closely together on the Judiciary Committee to ensure that FOIA and other open government laws are preserved for future generations. The passage of the OPEN Government Act is a fitting tribute to our bipartisan partnership and to openness, transparency and accountability in our government.

I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl and Senator Bennett in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform this legislation before the August recess.

But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people’s right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation.

The First FOIA Reforms in More Than a Decade

As the first major reform to FOIA in more than a decade, the OPEN Government Act will help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public’s trust in their government. This bill will also improve transparency in the Federal Government’s FOIA process by:

Restoring meaningful deadlines for agency action under FOIA;
Imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;
Clarifying that FOIA applies to government records held by outside private contractors;
Establishing a FOIA hotline service for all federal agencies; and
Creating a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.

Specifically, the OPEN Government Act will protect the public’s right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA. The bill ensures that federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees. In addition, the bill also clarifies that the definition of news media, for purposes of FOIA fee waivers, includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication.

The bill also restores meaningful deadlines for agency action, by ensuring that the 20-day statutory clock under FOIA starts when a request is received by the appropriate component of the agency and requiring that agency FOIA offices get FOIA requests to the appropriate agency component within 10 days of the receipt of such requests. The bill allows federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20-day time limit, the bill prohibits an agency from collecting search fees if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute.

The bill also addresses a relatively new concern that, under current law, federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision that is favorable to a FOIA requestor. The Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001), eliminated the “catalyst theory” for attorneys’ fees recovery under certain federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys’ fees when he or she files a lawsuit to obtain records from the government and the government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial.

To address concerns about the growing costs of FOIA litigation, the bill also creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes. In addition the bill ensures that each federal agency will appoint a Chief FOIA Officer, who will monitor the agency’s compliance with FOIA requests, and a FOIA Public Liaison who will be available to FOIA to resolve FOIA related disputes.

Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. The bill creates a tracking system for FOIA requests to assist members of the public and the media. Tracking numbers are not required for FOIA requests that are anticipated to take ten days or less to process. The bill also establishes a FOIA hotline service for all federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests.

In addition, the bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. And, to create more transparency about the use of statutory exemptions under FOIA, the bill ensures that FOIA statutory exemptions that are included in legislation enacted after the passage of this bill clearly cite the FOIA statute and clearly state the intent to be exempt from FOIA.

OPEN Government is an American Value

The Freedom of Information Act is critical to ensuring that all American citizens can access information about the workings of their government. But, after four decades this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated so that it works more effectively for the American people.

I am also please that, by passing this important reform legislation today, the Senate has reaffirmed the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I commend all of my Senate colleagues, on both sides of the aisle, for unanimously passing this historic FOIA reform measure. I hope that the House of Representatives, which overwhelmingly passed a similar measure earlier this year, will promptly take up and pass this bill and that the President will then promptly sign it into law.

# # # # #

kyl-leahy amendment
to leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

§ 3 – DEFINITION OF NEWS MEDIA
“Representative of the news media” is defined broadly enough to encompass all members of the old and new media. It includes anyone who gathers information of “potential interest to a segment of the public,” uses an editorial process and disseminates their product to an audience of any size. It states explicitly that as methods of news delivery evolves, alternative media shall be encompassed. This provision ensures that blogs and other Web-based forms of media are covered by the bill.

§ 4 – ATTORNEYS’ FEES
· A requester can obtain attorneys’ fees when he or she files a lawsuit to obtain records from the government and the government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial.

§ 6(a) – 20-DAY TIME LIMIT AND TOLLING
· The 20-day period that agencies have to respond to FOIA requests is changed to commence when the request is received by the appropriate component of the agency. If a FOIA request is received by a different component of the agency that handles FOIA requests, the agency has 10 days to deliver the request to the appropriate agency component before the 20-day clock starts to run.
· Allows federal agencies to toll the 20-day clock while awaiting a response to a request for information from a FOIA requester on one occasion reasonable, or while awaiting clarification regarding a fee assessment.

§ 6(b) – COMPLIANCE WITH TIME LIMITS
· Changes the penalty for non-compliance with the 20-day time limit from the loss of the agency’s ability to claim an exemption under FOIA to a waiver of search fees.

§ 7(a) – STATUS OF REQUESTS
· Clarifies that tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process.

§ 8 – CLEAR STATEMENT FOR EXEMPTIONS
· Ensures that FOIA statutory exemptions enacted after the passage of this bill clearly cite the FOIA statute and state the intent to exempt the legislation from FOIA.

§ 10 – PRIVATE RECORDS MANAGEMENT
· Clarifies that FOIA applies to government records maintained by government contractors who have been contracted to store and manage data for federal agencies or departments.

§ 11 – OFFICE OF GOVERNMENT INFORMATION SERVICES/OMBUDSMAN
· Creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes
· Ensures that each federal agency shall appoint:
1. A Chief FOIA Officer who will monitor the agency’s compliance with FOIA requests, and ensure that they are responded to quickly and efficiently.
2. A FOIA Public Liaison who will be available to FOIA to resolve FOIA related disputes.

§ 12 – CRITICAL INFRASTRUCTURE INFORMATION
· Strikes the Critical Infrastructure Information reporting requirements from the bill.

* * * * * *



Leahy-Cornyn Openness Promotes Effectiveness in our
National Government Act of 2007 (“OPEN Government Act”)

Led by U.S. Senators Patrick Leahy and John Cornyn , the OPEN Government Act of 2007 is a bipartisan effort to achieve meaningful reforms to federal government information laws – including, most notably, the Freedom of Information Act of 1966 (“FOIA”). The legislation would substantially enhance and expand the accessibility, accountability, and openness of the federal government. It has been nearly a decade since Congress has approved major reforms to FOIA.

This legislation is the culmination of extensive discussions between the offices of Senators Leahy and Cornyn and various members of the requestor community. The bill is supported by a broad coalition of organizations across the ideological spectrum, including:


American Association of Law Libraries
American Civil Liberties Union
American Library Association
American Society of Newspaper Editors
Associated Press Managing Editors
Association of Health Care Journalists
Center for Democracy & Technology
Coalition of Journalists for Open Government
Committee of Concerned Journalists
Education Writers Association
Electronic Privacy Information Center
Federation of American Scientists/Project on Government Secrecy
Free Congress Foundation/Center for Privacy & Technology Policy
Freedom of Information Center, University of Missouri


The Freedom of Information Foundation of Texas
The Heritage Foundation/Center for Media and Public Policy
Information Trust
National Conference of Editorial Writers
National Freedom of Information Coalition
National Newspaper Association
National Security Archive/George Washington University
Newspaper Association of America
People for the American Way
Project on Government Oversight
Radio-Television News Directors Association
The Reporters Committee for Freedom of the Press
Society of Environmental Journalists
Vermont Coalition for Open Government
Vermont Press Association


The bill contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know. The bill also contains over a dozen substantive provisions, designed to achieve the following four objectives:

(1) Strengthen FOIA and close loopholes.
(2) Help FOIA requestors obtain timely responses to their requests.
(3) Ensure that agencies have strong incentives to act on FOIA requests in a timely fashion.
(4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.


STRENGTHEN FOIA AND CLOSE LOOPHOLES

· Ensure that FOIA applies when agency recordkeeping functions are outsourced.
· Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation.
· Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information.
· Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association – including bloggers and other Internet-based journalists.
· Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests.

HELP FOIA REQUESTORS OBTAIN TIMELY RESPONSES

· Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests.
· Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation.
· Restore the catalyst theory for the recovery of attorney fees when litigation is inevitable.

ENSURE THAT AGENCIES HAVE STRONG INCENTIVES
TO ACT ON FOIA REQUESTS IN TIMELY FASHION

· Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request.
· Impose real consequences on federal agencies for missing statutory deadlines.
· Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.
· Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations.

PROVIDE FOIA OFFICIALS WITH THE TOOLS THEY NEED
TO ENSURE THAT OUR GOVERNMENT REMAINS OPEN AND ACCESSIBLE

· Improve personnel policies for FOIA officials to enhance agency FOIA performance.
· Examine the need for FOIA awareness training for federal employees.
· Determine appropriate funding levels needed to ensure agency FOIA compliance.

News of the FOIA deal...

The news is good, thus far....

A behind-the-scenes agreement reached Friday night clears the way for swift passage of a bill that strengthens the Freedom of Information Act for the first time in a decade.

The legislation, introduced by Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, was placed on “the hot line,” a term used for a bundle of bills that are expected to pass without objection just before lawmakers depart for the August recess.

The measure had been held up by a “secret hold,” a parliamentary maneuver invoked by Sen. Jon Kyl, R-Ariz., despite widespread support from conservative and liberal open-government groups.

Chief among Kyl’s concerns was a provision that eliminates exemptions for disclosing government records if an agency fails to meet the 20-day statutory deadline set in the law. He was concerned that the provision would inadvertently release sensitive information about national security. He also was concerned that the bill would cost the government too much because one provision would require federal agencies to pay for court fees when a requester wins a court fight over releasing records.

More...

FEMA Still Dragging Feet on Records...

From the FEMA case in Florida comes news of government delay, even in the face of a judicial order...

Time is running out for the federal government to appeal a court ruling that requires the release of records detailing money sent to Florida households following the 2004 hurricane season.

As of 5 p.m. Thursday, the Federal Emergency Management Agency had yet to petition the U.S. 11th Circuit Court of Appeals, which ruled June 22 that FEMA officials must release the addresses of the 600,000 state households that received $1.2 billion.

FEMA officials have until the end of the day Monday to decide what they will do. They refused to comment Thursday.

The court ruling is the result of a lawsuit that The News-Press, Pensacola News Journal and Florida Today newspapers — all owned by Gannett Co. Inc. — filed against FEMA more than two years ago, seeking the names and addresses of households that received money.

The judges said providing the addresses will show whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country.

"We cannot find any privacy interests here that even begin to outweigh this public interest," the court opinion read in part.

Kate Marymont, vice president/news of The News-Press, stands strong about Gannett's effort to protect the public's right to know.

"I believed from the day we first asked for these records that this is information that belongs to those citizens," Marymont said. "A federal court has said those records should be public. It's up to FEMA now if they're going to prolong and continue an expensive fight to keep these records from the public."


More here.

Tennessee Gov Sounds Good on FOI Ombudsman

Attaboy, Frank Gibson!

Gov. Phil Bredesen on Tuesday said he disagrees with a proposal by Comptroller John Morgan to split the responsibilities of a newly created open records ombudsman among several people in his office.

Morgan told an open government study panel that the best way to use the $100,000 appropriated for the ombudsman was to hire one non-attorney and to farm out more complex records questions to his existing legal staff.

"We see this as really a role and a function that won't necessarily be one position," Morgan said. "If somebody looks for the ombudsman, what they'll see......is the Office of the Comptroller _ and us fulfilling that role as a facilitator of access to records."

The Legislature, which elects the comptroller, included money in the budget to create an ombudsman to help citizens gain access to public records without having to go through the courts.

"What we don't want to do it get this so wrapped up in the identity of one person that when that person goes on vacation that there's nobody to call," Morgan said.

Bredesen said the first he had heard of Morgan's proposal was when asked about it by The Associated Press later on Tuesday. He said he would encourage a different approach.

"I think itrequires the focus of a relatively senior person and would certainly urge that on him," he said. "My gut feeling is a single senior person is a better direction."

Bredesen, who first proposed creating the ombudsman, also disagreed with Morgan's view that the money appropriated for the position wouldn't be enough to cover the salary, benefits, travel and other expenses.

"Then we should have appropriated more," Bredesen said. "But if the cost is a problem, I will find him some additional money."

Morgan told the panel he plans to advertise within two months for a new staffer who would help field inquires about access to public records. More complexlegal questions would be handled by an attorney on staff and in consultation with the Attorney General's office. A toll-free number would be established for the ombudsman staff, he said.

Morgan said he wants to ensure open records advice be based only on existing law.

"We'll try very hard not to get drawn into the political discussion or the policy debate about what the government is doing," he said.

Morgan added that there are also concerns that the ombudsman's decisions won't be legally binding, or that local officials would be free from liability if they follow rulings that turn out to be wrong.

Frank Gibson, executive director ofthe Tennessee Coalition for Open Government, said the liability question is already settled by current law that prevents officials from being held criminally or civilly liable for any documents they release.

Gibson said the ombudsman's role will be to help resolve "sometimes silly disputes over information."

By clarifying existing laws and legal precedents, the ombudsman will serve as "somebody in authority that can tell a public official: 'That's a public record. Release it,'" he said. "Or somebody who can tell a citizen that, 'I'm sorry, the Legislature says that that's not a public record."

More here

The Times Weighs in on FOIA Reform...

It's always helpful to legislative inertia when the NYT takes a look...

We live in a nakedly transparent age. Celebrities live out loud, companies routinely have their business spilled all over the Web and anybody can find out an awful lot about you or me with a click of the mouse.

Not so in Washington, however, where the mechanism for releasing information has all but ground to a halt.

Four decades ago, President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (F.O.I.A.) into law, requiring federal agencies to respond to any request for documents within 20 days and provide them within a reasonable time afterward. The law held that information gathered on our behalf — paid for and owned by you and me, at least theoretically — should be ours for the asking.

But it hasn’t worked out that way. While the mandate for disclosure is still there, it is overwhelmed by a Rube Goldberg apparatus that clanks and wheezes, but rarely turns up the data.

Freedom of Information requests have been caught in the gears for decades, and journalists working on timely stories about lead in school lunch boxes, FEMA’s response to Hurricane Katrina and delays in the delivery of veterans’ benefits have all been stymied by agencies that flout the law through recalcitrance or ineptitude.

Help us move the FOI reforms...

URGENT: CALL YOUR SENATOR TO GET A VOTE ON THE FREEDOM OF INFORMATION ACT REFORM BILL NOW

Let your senators know you want a Senate vote on the OPEN Government Act (S.849) before the August recess. We need to strengthen FOIA to hold our government accountable, especially now when our civil liberties are under assault and when Administration officials seem to value secrecy above openness

Background:

The Senate is being stopped dead from voting on a bill that would strengthen our right to obtain information from the federal government. The Openness Promotes Effectiveness in our National Government Act of 2007 – the OPEN Government Act (S.849) would make common-sense reforms to the Freedom of Information Act (FOIA), the law giving John Q. Public the right to obtain government records to make sure our government is acting in the public interest. Time and again information released under FOIA has proven invaluable in discovering government abuses, waste and corruption.

But that doesn’t matter to the Senator blocking the bill (S. 849) – Jon Kyl (R-AZ), the same Senator who first put a secret hold on the bill until uncovered. Kyl admits FOIA has been successful in exposing government abuses, and agrees that after 40 years on the books FOIA needs to be modernized so that requests no longer languish for months, years or even decades.

So, why is Kyl continuing to block the bill? He is dutifully carrying water for Alberto Gonzales’s Department of Justice (DOJ) – that’s why. Gonzales objects to the bill’s provision requiring agencies to pay the attorney fees of individual requesters when requesters are forced to go to court to get agencies to comply with FOIA. But without that provision, there would be no incentive for agencies to release documents before a court orders them to and every incentive to use delay as a tactic to make it costly for the public to use FOIA. Gonzales also is against expanding the right of the new media to use FOIA.

Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) proposed the OPEN Government Act of 2007 (S. 849). The bill aims to solve some of the FOIA's persistent problems by:

* Creating a tracking system for FOIA requests so they are not lost, forgotten and ignored;
* Clarifying the time limits for agency responses;
* Authorizing the recovery of reasonable attorneys fees for requesters who prevail in FOIA litigation, including when a government agency releases records in response to a lawsuit before a judge rules on the case;
* Requiring reports to Congress on how agencies handle FOIA requests; and
* Creating a FOIA ombudsman to help resolve disputes between members of the public and agencies without litigation.
The bill has strong bipartisan support. The United States House of Representatives passed a similar bill by an overwhelming majority vote (308-117) in March 2007, which included 80 Republican members of Congress.

TAKE ACTION

Call your Senators today and ask them to co-sponsor S. 849 and to let Senate Majority Leader Reid and Senate Minority Leader McConnell know that they want this good government legislation to move forward to passage – before they leave for the August recess – to ensure that the Freedom of Information Act works for the benefit of the American people.

If they have questions about the legislation, please ask them to call Meredith Fuchs at the National Security Archive, 202-994-7059 or Patrice McDermott at OpenTheGovernment.org, 202 332-6736. Or they can call me, at 573-882-5736.

To be connected directly to your Senators’ offices, you may phone the U.S. Capitol Switchboard at (202) 224-3121. Or check your Senators’ web pages at http://www.senate.gov/general/contact_information/senators_cfm.cfm for their district office numbers.

Thanks for your help!

South Carolina court opens superintendent files...

A school district violated the state's Freedom of Information Act by not releasing information on the finalists for a superintendent job, the South Carolina Supreme Court ruled yesterday.

"FOIA must be construed so as to make it possible for citizens to learn and report fully the activities of public officials," Justice Costa Pleicones wrote in for the unanimous court.

The Spartanburg Herald-Journal, which is owned by the New York Times Co., sued the Spartanburg County School District No. 7 in 2003 after the district refused to release information on the finalists for the job.

Five semifinalists and two finalists were selected from a group of about 30 applicants. State law requires public agencies to release the names of no fewer than the final three applicants in the hiring process. The school board said it wasn't required to release its finalists because there were only two.

The court said in The New York Times Co. v. Spartanburg County School District No. 7 that the school board should have released the names of the five semifinalists.

More here

CIA tweaks definition of "news media" for FOIA fees

GovExec.com had an interesting piece on FOIA fees in the CIA yesterday...

Criticism of proposed rules on fees for obtaining documents under the Freedom of Information Act has prompted the CIA to establish a definition of "news media" that could include bloggers.

The CIA's final rule on FOIA processing fees, from which members of the news media are usually exempt, takes a pass on a more complex fee structure proposed in a draft version. The CIA decided against the complicated structure due to the lack of public support for the change, according to a notice published in the Federal Register Wednesday.

The new rule, effective Wednesday, adopts the definition of "news media" contained in a 1987 Office of Management and Budget FOIA guidebook that includes "alternative media" that would be disseminated electronically "through telecommunications." Under the 1986 FOIA Reform Act, OMB is responsible for promulgating a "uniform schedule of fees" across the government.

The notice stated that while the CIA remains confident in the adequacy of its old interpretation of "news media," officials concluded that it is better to avoid "sterile and unproductive technical litigation" and the "diversion of resources from more productive pursuits."

Meredith Fuchs, general counsel of the National Security Archive, a research institute and library located at The George Washington University, said the CIA changed its definition in an attempt to pre-empt a court ruling that the agency's existing regulations were illegal. The Archive filed a lawsuit in District Court for the District of Columbia in June 2006, challenging a CIA decision that it did not qualify as "news media" and that its request would have to concern "current events" to qualify for the fee waiver.

More here...

The Governor's E-Mail

A great editorial on the Corzine e-mail flap in New Jersey:

There's a subplot with a touch of irony to the story of Gov. Corzine's refusal to release copies of some of his e-mails. The governor claims that because the requested e-mails didn't involve public business, he doesn't have to make them available to anyone. A judge may decide if the governor is right during a hearing scheduled in a Mercer County courtroom Aug. 3.

The irony involves the legislators who created the state's Open Public Records Act (OPRA) five years ago and who built a loophole into the law big enough to accommodate the entire Statehouse. No. 2 on the list of 24 exemptions from OPRA is "Legislative records."

The exemption is so broad it includes all e-mails of state senators and Assembly representatives, whether the messages refer to official business, list items to pick up at the supermarket or ask a significant other to spend the weekend at the Shore.

So, while Corzine fights a law intended to make government more transparent, state legislators are immunized from requests similar to the one that has raised the governor's hackles. Indeed, legislators are entirely outside the provisions of OPRA. With relatively few exceptions, however, e-mails that circulate among members of local governing bodies and other similar public entities are available as public records.

State legislators should be as accountable as everyone else. After he finishes the fight over his own e-mails, Corzine should push the Legislature to make records at all levels of government more available to the public.

New FOI Advocate Online...

Hello, FOI warriors!

We have a new ADVOCATE ready for you at

http://nfoic.org/advocate/advocate_071707.html

And don’t forget the NFOIC’s blog, at:

http://foiadvocate.blogspot.com/

Highlights include:

* SECRECY PLAGUES SCRUTINY OF MOUNTAINTOP MINING: Two weeks ago, environmental activists Cindy Rank and Vivian Stockman took a drive through the Logan County hills with Paul Vining, the president of Magnum Coal. From the top of a ridge, Rank and Stockman looked down through the trees, mountain laurel and flame azalea. The stream that runs through Fitzwater Hollow was already buried, they saw. Workers from Magnum subsidiary Apogee Coal Co. had dumped a six-foot-thick layer of rocks into the valley. The damage was done.

* JUDGE DENIES ACCESS TO PRIEST ABUSE RECORDS: A U.S. Bankruptcy Court judge has denied a Spokesman-Review request for access to records detailing millions of dollars in upcoming payouts from a trust to victims of priest sexual abuse in the Spokane Catholic Diocese, saying the claimants were promised confidentiality before agreeing to a legal settlement this spring.

* KEYSTONE REFORMS UNDERWAY: A House advisory panel ... gave a resounding yes to a plan to increase public access to government records but refused to support term limits for legislators. The 24-member House Speaker's Reform Commission wrapped up its work after five months. It recommended a stronger Ethics Committee, a redistribution of power to rank-and-file members, campaign contribution limits and more.

Access those articles, and much, much more, at

http://nfoic.org/advocate/advocate_071707.html

If you've missed a recent ADVOCATE, please visit http://nfoic.org/advocate/

Thanks for reading!

New OpentheGovernment.org Report...

The United States has faced an unprecedented rise in government secrecy over the last six years, according to a report released today by OpenTheGovernment.org and People For the American Way Foundation. Government Secrecy: Decisions Without Democracy 2007 documents how executive power has dramatically expanded while executive accountability has diminished.

Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.

"As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem," said Patrice McDermott, director of OpenTheGovernment.org. "It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."

"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas. "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."

The report includes a preface written by former Congressman Bob Barr and former White House Chief of Staff John Podesta.

The report can be found at http://www.openthegovernment.org/otg/govtsecrecy.pdf

FOI AT WORK....

A great use of FOI to check the official story...

The heat wave that scorched California a year ago may have contributed to the deaths of three times as many people as the state has officially reported, an Associated Press investigation suggests.

As recently as last month, state officials reported that the two-week period of triple-digit temperatures that began July 14, 2006, killed 143 people. Statistics compiled by the AP from each of California's 58 counties show the number of deaths last July was 466 higher than the average over the previous six years, a spike many health officials attribute to the record heat.

In Sacramento County alone, the July 2006 death toll was more than 100 over the average.

"I cannot account for any event that could have caused that, other than the heat wave," county Health Officer Glennah Trochet said in response to the AP's research.

The discrepancy is important because it suggests an inadequate statewide reporting process and indicates that state and local agencies must do more to monitor and care for those who are most vulnerable.

Frank McCarton, chief deputy director of the Gov.'s Office of Emergency Services, said there is a clear need for state and county health officials to more accurately track heat-related deaths.

"This is something we're going to really try to tighten up," he said.

Nice FOIA-driven story in Post...

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

Attorney General Alberto R. Gonzales has said he was unaware of violations in the FBI's use of national security letters ¿ until an internal Justice Department report uncovered them in March 2007. But Gonzales was routinely sent notifications from the FBI when such violations occurred and had to be reported to the president's Intelligence Oversight Board. Look at excerpts from one of the notifications, sent on Dec. 11, 2006.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI's use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department's inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Justice officials said they could not immediately determine whether Gonzales read any of the FBI reports in 2005 and 2006 because the officials who processed them were not available yesterday. But department spokesman Brian Roehrkasse said that when Gonzales testified, he was speaking "in the context" of reports by the department's inspector general before this year that found no misconduct or specific civil liberties abuses related to the Patriot Act.

If You Haven't Seen This Yet...

The National Security Archives' wonderful collection of pending FOI requests...


The oldest Freedom of Information Act (FOIA) requests still pending in the federal government were first filed two decades ago, during the Reagan presidency, according to the Knight Open Government Survey released today by the National Security Archive at George Washington University.

"Forty years after the law went into effect, we're seeing twenty years of delay," said Tom Blanton, the Archive's director, noting the July 4, 1967 implementation date for FOIA. "Sunlight is the best disinfectant, but this kind of inexcusable delay by federal agencies just keeps us in the dark."

In January 2007, the Archive filed FOIA requests with the 87 leading federal agencies and components for copies of their "ten oldest open or pending" FOIA requests. The Department of State, responding to an Archive "ten oldest" request for the first time, reported ten pending requests older than 15 years--the majority of the oldest requests in the entire federal government. Other agencies with the oldest requests include the Air Force, CIA, and two components of the Justice Department, the Criminal Division and the FBI.

"A lot can happen in 20 years. The Internet grew to adulthood in less time than it has taken our federal government to deal with these outstanding Freedom of Information requests," said Eric Newton, vice president of the journalism program at the John S. and James L. Knight Foundation, which supports the Archive's FOIA audits. "Americans once said they had the best open government laws in the world. Is that still true?"

The Knight Open Government Survey also identifies ten federal agencies that misrepresented their FOIA backlogs to Congress. For example, the Justice Department's Office of Information and Privacy--which is leading the opposition to current FOIA reform legislation passed by the U.S. House and pending in the Senate--claimed in its most recent report to Congress that its oldest request was from 2002, but provided the Archive with a package of oldest requests dating back to 2001.

Like ketchup...only slower

The AP on FOIA turning 41....

Using the Freedom of Information Act to get information from the government is like waiting for ketchup to flow from a new bottle. Both often take longer than they are supposed to.

The act that gave citizens the power to request information from federal government files celebrates its 40th anniversary on July 4. But those seeking data continue to encounter long delays despite a 2005 order by President Bush to clear the unanswered backlog.

A new study released Monday found one requester has been waiting 20 years for the State Department to produce documents it has about the Church of Scientology.

Two more unanswered requests were made in 1988 and three in 1989, according to the survey by the National Security Archive, a private research group at George Washington University.

Five agencies - the State Department, Air Force, CIA, the Justice Department's criminal division and the FBI - still haven't answered some requests made 15 or more years ago, the Archive found.

The Archive is a heavy user of the act and, with aid from the John S. and James L. Knight Foundation, does periodic audits of how well the law is administered.

The latest study concluded backlogs are "out of control." For most federal agencies, meeting the law's deadline for a response in 20 business days "is an exception rather than a standard practice," the study said.

"Forty years after the law went into effect, we're seeing 20 years of delay," said Archive director Tom Blanton. "This kind of inexcusable delay by federal agencies just keeps us in the dark."

Among the findings from responses by 57 agencies to the Archives' Jan. 29, 2007 FOIA request for data on backlogs:

_Only four agencies reported no backlog: the Small Business Administration, Army Department Materiel Command, Naval Education and Training Command and Labor Department Employee Benefits Security Administration.

_Twelve agencies had requests pending 10 years or more.

_Ten agencies misreported their oldest pending FOIA request to Congress in annual reports required by law: the Agriculture Department Animal and Health Inspection Service, Air Force, Commerce Department, CIA, Director of National Intelligence, FBI, National Science Foundation, State, Treasury, and Justice's Office of Information and Privacy, which is supposed to provide governmentwide guidance on FOIA compliance.

_One-third of the agencies that received the January Archive request on backlogs have not responded. Twelve agencies still have not responded to the Archive's 2005 request for similar data.

OK, one more...a John Moss tribute gets me every time

On this, the 41st anniversary of the federal Freedom of Information Act, I forgot to mention this wonderful piece remembering the great John Moss, without which we would have no federal FOIA...

CD

New from all over....in brief form

OK, here we go, on a brief tour of what's happening out there...

In Washington, a judge ruled that FOI laws do not require government agencies to release information in electronic form if the material is offered on paper.

In Wisconsin, a newspaper is accusing the Madison Police Department of violating the state's open records law by refusing to release disciplinary records involving a former officer who resigned.

In Arkansas, a judge ruled that the act of sending an email to a government email address means that there is "no expectation of privacy." And, it would seem that you don't need to have your emails released to the public to be completely embarrassed by them in public.

And that's all for this week. I'm going on vacation....

CD

Get Grandpa's FBI file...

FOI warrior Mike Ravnitzky has launched a new, automated (noncommercial, educational) web site to help you get FBI Files for any deceased family member, entirely free of charge.

The site is designed to generate a printable letter that asks the FBI to search their files for records concerning a specified deceased family member, or for that matter any other deceased person.

The site is at:

http://www.GetGrandpasFBIfile.com

An Independence Day Plea for FOI Reform

For Immediate Release:
July 3, 2007


Groups Urge Senate to Enact FOIA Reform on the Law’s 41st Birthday


Contacts: Meredith Fuchs, National Security Archive, 202-994-7000
Patrice McDermott, OpenTheGovernment.org, 202-332-6736


WASHINGTON, DC – As the 41st birthday of the Freedom of Information Act (FOIA) approaches, a coalition of groups urged the U.S. Congress to pass a bill—currently locked behind a closed door—that would reform the FOIA and make it work better for the public. The OPEN Government Act (S. 849) would enact common-sense reforms to the FOIA and put in place incentives for federal agencies to process FOIA requests from the public in a timely manner.

When President Lyndon Johnson signed the landmark law on July 4, 1966, he declared: “A democracy works best when the people have all the information that the security of the nation will permit.” Indeed, when members of the public have diligently pursued information under the FOIA, they have identified government waste and mismanagement and exposed significant controversies about government programs.

Our government is not at its best, however, when it takes up to 20 years for a FOIA request to be processed, agencies routinely lose FOIA requests because they have no tracking system and the government leads requesters into litigation only to release requested documents on the eve of a judicial decision, as several studies have demonstrated.

Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) proposed the OPEN Government Act of 2007 (S. 849). The bill aims to solve some of the FOIA’s persistent problems by:
• Creating a tracking system for FOIA requests so they are not lost, forgotten and ignored;
• Clarifying the time limits for agency responses;
• Authorizing the recovery of reasonable attorneys fees for requesters who prevail in FOIA litigation, including when a government agency releases records in response to a lawsuit before a judge rules on the case;
• Requiring reports to Congress on how agencies handle FOIA requests; and
• Creating a FOIA ombudsman to help resolve disputes between members of the public and agencies without litigation.

The bill has strong bipartisan support. The United States House of Representatives passed a similar bill by an overwhelming majority vote (308-117) in March 2007, which included 80 Republican members of Congress.

The concerns raised by some federal agencies have been addressed by the managers’ amendment SA 1147 and lack merit. And a new suggestion—that attorneys fees be permitted only when the person making the FOIA request can prove that the government acted in bad faith—would actually weaken FOIA, making it virtually impossible for FOIA requesters to obtain records under the FOIA. In contrast, the attorneys fees provision currently in the bill, which would restore the ability of FOIA requesters to receive attorneys fees when their cases cause an agency to release records before the court makes a decision, would strengthen FOIA and the democratic principles it promotes.

The OPEN Government Act of 2007 is supported by a wide range of organizations and individuals across the ideological, political, and economic spectrum:
• The United States Chamber of Commerce;
• The National Association of Manufacturers;
• More than 100 public interest organizations, historical groups and associations, including: the American Library Association, the Natural Resources Defense Council, the National Taxpayers Union and the Liberty Coalition;
• The Sunshine in Government Initiative, a coalition comprised of the American Society of Newspaper Editors, the Associated Press, the Association of Alternative Newsweeklies, the Coalition of Journalists for Open Government, the National Association of Broadcasters, the National Newspapers Association, the Newspaper Association of America, the Radio-Television News Directors Association, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists;
• Public Citizen;
• The American Civil Liberties Union;
• The National Security Archive;
• 10 members of the Arizona State Senate;
• The Open Society Policy Center;
• David Keene, Chairman, American Conservative Union;
• John W. Whitehead, President, The Rutherford Institute;
• Thomas R. Pickering, former Undersecretary of State for Political Affairs and United States Ambassador to the United Nations;
• Bob Barr, former member of Congress;
• Veterans for Common Sense;
• The Andrew Jackson Society;
• Americans for Tax Reform; and others.

In addition, editorial and op-ed pages in newspapers across the country have reflected strong public support for the reforms.

The undersigned groups called upon the Senate to permit this good government measure to be brought to the floor for a debate and vote, and not to allow it to be brought down by legislative tactics and poison pill amendments.

###

Organizations Issuing the Release:

American Association of Law Libraries
American Civil Liberties Union
American Library Association
Association of American Physicians and Surgeons
Citizens for Responsibility and Ethics in Washington (CREW)
Cyber Privacy Project
Doctors for Open Government (DFOG)
Electronic Frontier Foundation
Ethics in Government Group
Georgians for Open Government
Liberty Coalition
National Coalition for History
National Freedom of Information Coalition
National Security Archive
National Taxpayers Union
National Whistleblower Center
Natural Solutions Foundation
OMB Watch
OpenTheGovernment.org
Pain Relief Network
Public Citizen
Reporters Committee for Freedom of the Press
Republican Liberty Caucus
Semmelweis Society International (SSI)
Student Health Integrity Project (SHIP)
The New Grady Coalition
The Pullins Report
The Rutherford Institute
United States Chamber of Commerce
US Bill of Rights Foundation
VA Whistleblowers Coalition

Keep an eye on this...

From the Herndon, Virginia Times:

At least one provision of a newly passed Town of Herndon ordinance addressing Freedom of Information Act requests may be in violation of the Act.

The controversial ordinance will charge fees based upon the hourly rates of town staff fulfilling formal FOIA requests. The Herndon Town Council voted 6-1 to approve the ordinance last Tuesday, June 26, and it is scheduled to go into effect Aug. 1.

Herndon Town Attorney Richard Kaufman has stated that the formal ordinance was "a staff-initiated effort" brought about because of "a recent increase in the intensity and number of requests for information."

"I would argue that is done for two reasons. First to discourage frivolous FOIA requests and second, to force newspaper reporters to do their own research and not expect government employees to do research at taxpayer expense," Husch said.

Whose hourly rate will be charged in Herndon has yet to be determined. The fees will be published prior to the Aug. 1 implementation of the ordinance, according to Kaufman...

"They can't do that," said Frosty Landon, executive director of the Virginia Coalition for Open Government, after reviewing that particular provision, citing a recent opinion by Maria Everett, executive director of the Virginia Freedom of Information Advisory Council.

Well said, Frosty. This is an UGLY policy, one that if repeated would eviscerate FOI as we know it, particularly for citizens.

From Secrecy News

An excellent observation by Steve Aftergood in Secrecy News:

The White House press office and some Bush Administration critics are insisting that the 2003 executive order on classification policy endowed the Vice President with a unique status and classification powers identical to those of the President himself.

But that's not what the executive order says.

"In this executive order the President is saying that the Vice President is not different than him," said White House press secretary Dana Perino on June 25.

"The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes it clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies'," wrote David Addington, the Vice President's chief of staff in a June 26 letter (pdf) to Senator Kerry.

Similarly, New York Times columnist and Bush critic Frank Rich wrote yesterday that in 2003 "every provision [in the executive order] that gave powers to the president over classified documents was amended to give the identical powers to the vice president."

Mr. Rich claimed that "this unprecedented increase in vice-presidential clout" has "special importance" for understanding the Iraq war, the Valerie Plame case and more.

"By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics," wrote Mr. Rich.

From an opposing political perspective, Byron York of the National Review wrote last year that the revised executive order constituted an "enormously consequential expansion of vice-presidential power."

More soberly, the Congressional Research Service reported in a memo to Rep. Henry Waxman (pdf) that "Among the modifications made by the new [executive] order were the vesting of the vice president with authority coequal to that of the President to security classify information originally."

And I myself wrote in Secrecy News last year that the language of the 2003 executive order "dramatically elevates the Vice President's classification authority to that of the President."

On closer examination, none of this appears to be correct.

The text of the 2003 executive order does not grant any new classification authority to the Vice President beyond that which he already possessed as one of some two dozen officials authorized by the President to classify information originally at the Top Secret level. Like those other officials, the Vice President was already authorized to classify information within the scope of the executive order, and to delegate his authority to others. No additional classification powers were provided in the new order.

A line by line comparison of the Bush executive order with the prior order, indicating what was added and what was deleted in 2003, shows that every classification authority granted to the Vice President was also granted to other agency heads, such as the Secretary of Defense or the Secretary of State, and was also possessed by the Vice President himself in the past.

Mr. Addington and the White House press office argue that the mere juxtaposition of references to the President and the Vice President in the text of the 2003 Bush order -- such as in section 1.3(a)(1) -- somehow translates into new status for the Vice President. But again, no such status or new authority is articulated in the order.

To the contrary, the Director of the Information Security Oversight Office, who is charged by the President with implementing and overseeing the executive order, concluded that an interpretation of the order which treats the Office of the Vice President as entirely distinct from other executive branch entities is not consistent with a "plain text reading," as he wrote to the Attorney General (pdf).

Fundamentally, the Vice President's classification authority is not and cannot be identical to that of the President. The President's authority is inherent, stemming from his status as commander in chief of the armed forces; the Vice President's authority is derivative. Likewise, and for the same reason, the President can alter the provisions of the executive order at a moment's notice; the Vice President cannot.

Oregon Gov Signs FOI Improvements Bills...

This just in...

Gov. Ted Kulongoski has signed two bills to accelerate requests for public records and require the release of some information that would be confidential otherwise under attorney-client privilege.

After a June 22 signing ceremony, Kulongoski said Oregon needs to put the public back into its 1973 public-records law, which has been eroded over the years by exemptions approved by lawmakers putting various records out of the public's reach.

"This is a change in direction," Kulongoski said at the signing ceremony. "Maybe it is the first step that we will try to correct a number of these problems."

One of the bills signed by Kulongoski requires government agencies to respond without delay to requests for public documents.

The other requires government agencies to release a condensed version of information that agencies otherwise could withhold from disclosure because of confidentiality of communications between agencies and the lawyers who represent them.

That bill stemmed from a case in which the Klamath County School District hired a lawyer to conduct an investigation into alleged mismanagement. The school board denied a citizen's request for disclosure of the results or the advice given by the lawyer after the investigation.

Both open-records bills — S.B. 554 and S.B. 671 — originated in the Senate Judiciary Committee, headed by state Sen. Ginny Burdick, D-Portland.

"This is the first time in many years that we have taken a major step to make the public-records law more accessible to citizens," Burdick said at the bill-signing ceremony.

In Delaware, A Glimmer of Hope

This just in from Delaware...

A definite maybe. But don't hold your breath.

That's the answer today for Delawareans wondering whether bills to broaden the Freedom of Information Act to cover the General Assembly will be considered before the Legislature's adjournment Saturday.

House leaders promise a vote on one bill that would at least partially remove the General Assembly's exemption from the state's "Sunshine Law."

"Absolutely. That is a commitment I made," said House Majority Leader Richard C. Cathcart, R-Middletown.

But that bill -- and a similar measure introduced months ago by Sen. Karen Peterson, D-Stanton -- face big problems in the Senate, where Sen. Thurman Adams Jr., D-Bridgeville, has long opposed bills that would open the doors to committee hearings, records and legislators' spending vouchers.

Any FOIA legislation that makes it to the Senate by Saturday, when the legislature adjourns, is likely to stay there, awaiting lawmakers' return in January for the second year of the two-year legislative session.

Peterson says she labors under no illusions that Senate Bill 4, her bill to bring the Legislature under FOIA, is at the top of Adams' priority list.

"Sen. Adams did tell me last week that he intends to move S.B. 4. I don't know when he intends to move it -- it could be next year," Peterson said.

The General Assembly's half-hearted efforts to open its closed doors are a stark contrast to a branch of government not covered by FOIA: the judiciary.

Most court records already are open to public scrutiny, but in February, Chief Justice Myron T. Steele issued a directive to Delaware's courts ordering them to adopt formal public access policies to cover the release of administrative records.

That includes financial records such as expense reimbursement forms and travel expenses on state credit cards -- records the legislative branch steadfastly refuses to release.

"The Judicial Branch supports the presumption of open public access to court records, including court administrative records," Steele wrote, "to promote government accountability and greater public trust and confidence in the Judiciary."

Patricia Griffin, the state court administrator, said the courts are working to implement the Supreme Court directive "to be sure that the appropriate policies are in place as soon as possible."

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