New FOI Report on Mediation Out...

The National Freedom of Information Coalition is happy to announce the latest edition of our FOI Reports, “Mediation Without Litigation” by Harry Hammitt, editor and publisher of “Access Reports” and a member of the board of the Virginia Coalition for Open Government.

We’re all aware of the obstacles one can face when trying to obtain information from government agencies. Even 40 years after passage of the FOIA, there exists “a frustration with the inability of many individuals and small organizations to press their case in the face of agency denials or delays.” In a system where courts are the final arbiter, the cost in terms of money and time required to litigate (when necessary) can be so daunting that requesters often are discouraged from making the effort.

In response, access advocates “are turning to state models for examples of how access to information disputes can be resolved short of litigation.” In this report, Mr. Hammitt “survey[s] the approaches taken by those states with both specific and informal dispute resolution as a way of better understanding what currently exists and what models might be adopted at both the federal level and for those states that currently do not have a mediation system of their own.”

The report can be found online at our web site.

FOI At Work...A GREAT example!

Five years ago (five years!!!), Los Angeles Times reporter Ted Rohrlich got a tip that problem police officers were being moved from department to department around the state. He requested information to determine whether and why cops might be hired by one police agency after being fired from another agency. Rohrlich was told the records were secret, but the California Supreme Court ruled otherwise.

Here is a great look at the case in OC Weekly:

Is the public entitled to know who has been granted police powers in California?

Or are cops entitled to, as they claim, near-national-security-level secrecy about such basic information as their names and what department employs them?

These were the type of questions the California Supreme Court recently debated thanks to a fight between the Los Angeles Times and police departments and their lobbying groups.

Using the state’s public-records act, the Times asked California’s Commission on Peace Officer Standards and Training (POST) to release the names, employing departments, and hiring and termination dates of police officers statewide. The agency refused to comply, claiming that any information in a cop’s personnel file is “confidential.”

(Comprised of former cops, POST is a state agency charged with establishing standards of physical, mental and moral fitness for cops. In exchange for taxpayer funds, 626 police departments are required to obey the agency’s minimum standards and allow records inspections. Though it’s not always apparent, these safeguards were instituted to prevent departments from hiring organized-crime associates, felons or political cronies.)

The Times sued POST, and a Superior Court judge in Sacramento County, where the agency sits, said the records are public information. Police went ballistic, claiming public knowledge of their names “jeopardizes” their safety. The California attorney general, California State Sheriff’s Association, California Police Chiefs Association, California Peace Officers Association, the Legal Defense Fund for Peace Officers Research Association of California and POST took the issue to a state court of appeal and won a reversal in April 2005. A three-judge panel said it was “a matter of common sense” that the public was not entitled to know the identities of police officers. They relied on a statute that says peace-officer personnel records may not be disclosed except under certain circumstances. This court believed that an officer's name constitutes his or her protected "employment history."

But the Times didn’t quit. Using the First Amendment law firm of Davis Wright Tremaine [full disclosure: they've represented OC Weekly] and support from The Orange County Register, the paper appealed to California’s highest court. On Aug. 27, 2007, a majority of the justices told police what they didn’t want to hear. Among other points: “Although a comparatively low-ranking government official, a patrolman’s office, if abused, has great potential for social harm and thus invites independent interest in the qualifications and performance of the person who holds the position.” They ruled that there is nothing in the law that allows police to block public access to information sought by the Times. The police view “would result in absurd consequences,” they wrote in a 30-page decision signed by Chief Justice Ronald George, a Republican.

This is a signal victory for openness, and a strong, strong opinion that rings again and again with great lines about the value of people, well, knowing stuff.

More here.

An FOI Request in Ohio Raises Issues of Anonymity...

This is a most interesting situation, in which a request for an anonymous ethics database gives rise to concerns about the privacy of individuals on said hotline...but aren't they anonymous?

Ohio University officials have said they felt they had to stop taking anonymous tips on suspected ethics violations after OU's student newspaper obtained records of the tips through a public-documents request.

The student who was editor of the OU Post at the time called that decision "very strange," and suggested it shows a disappointing lack of faith in the paper's judgment.

"It's kind of sad that because of a public-records request, they quit using the (system), which seemed to be doing a pretty good job," said Sean Gaffney.

As editor of the Summer Post, Gaffney oversaw a request to OU for records from the university's EthicsPoint tip line. The program accepts anonymous tips about alleged employee wrongdoing at OU, both over the phone and online.

On Thursday, OU announced it had stopped accepting reports, both on its EthicsPoint site and over the phone, because of "concerns over individual privacy."

OU President Roderick McDavis made the decision Aug. 24 at the recommendation of Internal Auditor Kathryn Chambers Gilmore, one day after the university turned over records from the system to the Post.

Gilmore argued Friday that it defeats the purpose of an anonymous tip line if records of the tips - including allegations that turn out to be baseless - can become public through a records request. However, she said, after meeting with the Ohio Attorney General's office, OU attorneys realized that the Post had state public-records law firmly on its side.

"We were told that we had to provide all of the records," Gilmore said, with the only exceptions being material protected by federal laws covering student records and medical records.

The Post's records request was "very broad," according to Gilmore. "It asked pretty much for all records."

There was precedent available in an earlier request by the Columbus Dispatch for records from Ohio State University's similar tip system. That paper ran a story Aug. 7, reporting that since OSU started its tip line in 2006, it had helped the university uncover 19 cases of wrongdoing, while generating 107 tips that turned out to be unsubstantiated.

OU's system began in February 2006. Its best-publicized result came in July when OU announced the resignation of an associate athletics director found to have misused a university purchasing card. That case came to light through an anonymous tip.

More here.

New Secrecy Report Card Out...

By just about every measure, government secrecy is growing at a quicker pace than ever before, according to a new annual survey from the advocacy coalition OpenTheGovernment.org.

While the creation of new secrets (termed "original classification decisions") actually declined in the past year, total classification activity grew significantly, as did the use of controls on unclassified information, and the costs of maintaining the apparatus of national
security classification.

"The current administration has increasingly refused to be held accountable to the public, including through the oversight responsibilities of Congress," said Patrice McDermott, Director of OpenTheGovernment.org -- the NFOIC is a steering committee member of the group.

The report is available here.

Great CAR/FOI Event in Indy!

ACCESS BOOT CAMP: Join us November 8 in Indy
Best Access Program for the Year: Only $35/Seating limited

Access Boot Camp: Tips & Training from the Trenches

Thursday, Nov. 8, One Indiana Square, Fifth Floor Conference Center, Downtown Indianapolis (corner of Ohio and Pennsylvania streets)

Join us for a one-day access event in downtown Indianapolis featuring keynote speaker Ken Paulson, editor of USA TODAY.

Confirmed speakers include:

Ken Paulson, USA TODAY editor
Christie Tatum, National Society of Professional Journalists, immediate past president
Brant Houston, former Investigative Reporters & Editors executive director
Heather Willis Neal, Indiana Public Access Counselor
Lauren Toppen, Indianapolis Public Access Counselor
Joel Campbell, National SPJ's Freedom of Information Chairman
Anne O'Connor, first Indiana Public Access Counselor
Kevin Finch, News Director for WISH-TV, CBS affiliate

For more information, check out the ICOG or ISBA Web sites for upcoming registration and programming updates. Seating is limited. You can reserve your space today by emailing Paje Felts at pfelts@inbar.org or Kyle Niederpruem at kyle@kylecommunications.com. The seminar fee is $35. Lawyers will be charged a separate fee as the seminar is pending CLE approval.

Iowa kicks off FOI reform...

Efforts kick into high gear this week to strengthen Iowa's open-meetings and open-records laws and to force governments to abandon practices that skirt the requirements.

On the table for scrutiny is every piece of Iowa law that is intended to maintain transparent government as a way to protect taxpayers from abuse and scandal.

"Frankly, there's been a number of abuses in a number of venues and that begs for change," said state Sen. Michael Connolly, a Dubuque Democrat.

Connolly is co-chairman of a legislative committee that will hold its first hearing Thursday to review open-meetings and open-records laws.

The group will examine problems in the law and listen to groups such as the Iowa Freedom of Information Council and the Iowa Citizens' Aide/Ombudsman's Office.

"One problem we need to figure out how to address is ensuring that public employees receive sufficient training in what the law is so they don't make mistakes because of ignorance," said Kathleen Richardson, who heads the Iowa Freedom of Information Council. "A lot of the problems also involve the fact that there is widespread lack of will in officials to enforce the law."

More here.

An Update on New Jersey Judicial Access..

State court officials, judges and lawyers are working on a series of projects and studies to find ways to keep the courts current in the digital age while safeguarding personal information that could be abused.

A 20-person Supreme Court committee formed last year is considering what court records will be available to the public, how to provide electronic access and at what cost, and how to prevent blemishes removed from people's records -- dismissed charges, expunged convictions, expired court orders -- from haunting them forever in cyberspace.

For the past 18 months, Justice Barry Albin has overseen the committee's meetings which have been held in secret. A report is expected to be submitted to the high court later this fall and made public.

Meanwhile, the state judiciary is moving ahead with a number of projects to make the courts more e-friendly for litigants, law enforcement officers and attorneys...

More here.

FOI Reform Under Way in Iowa, Too...

DES MOINES -- A group of Iowa lawmakers is set to review the state's open records and open meetings laws after a string of accusations that Iowa government entities are violating those laws...

"The public has a right to know what their government is doing and how we're spending their money," Jochum said.

Rep. Vicki Lensing, D-Iowa City, is co-chairing a special legislative committee that will meet Sept. 6 to review the laws.

She notes that other forms of communication, including text messages and e-mails, didn't exist when Iowa's open records laws were written decades ago.

"As time has gone on, we have put Band-Aids on it, and I think it's just to the point now we need to look at the whole thing," Lensing said.

Kathleen Richardson, executive secretary of the Iowa Freedom of Information Council, said the group has identified continuing problems in Iowa.

Those problems include what she believes is the increasing secrecy surrounding the hiring of public employees, as government entities keep the names of candidates private and hold interviews behind closed doors...

More here....

Washington Gov Denies Access to...well...you just can't make this stuff up

From the Department of Unintentional Irony:

Gov. Chris Gregoire has refused to reveal the identities of some people who weren't picked for seats on the state's new "Sunshine Committee."

Gregoire, responding to an Associated Press public records request, has kept secret several resumes, letters and e-mail exchanges from unsuccessful applicants to the committee.

In her reply, the Democratic governor cited an exemption to public records law that says applications for public employment can be kept secret.

Open government experts scoffed at that reasoning, pointing out that compensation for Sunshine Committee service is limited to travel reimbursements that several members don't actually qualify for.

"That doesn't make them employees of the state," said Toby Nixon, acting president of the Washington Coalition for Open Government and a former state legislator.

"I don't think what the governor is doing in terms of withholding these documents, claiming they are applications for employment, is right at all," Nixon said. "And I think that the word ironic is a very good word."

But Melynda Campbell, a legal assistant in Gregoire's legal office, said the administration considers every person appointed to a board or commission by the governor to be a public employee under the Public Records Act exemption.

Under that reasoning, Campbell said, people who ask that they be appointed to a panel such as the Sunshine Committee must have their identities kept secret.

More here.

Well, if the idea is to illustrate the need for someone to form a committee to study the sunshine laws, my hat's off to 'em.

CD

The Doctor Is In...

This is a most interesting development unlocking millions of records...the good doctors, of course, assert that the data don't tell a complete picture, but what picture do we have now? None.

Whether it's a hernia repair or heart bypass, doctors with a lot of experience performing a given operation tend to have better results. The problem for patients in choosing a physician has been finding out which ones have the know-how.

Now a court ruling appears to open the way for consumer access to such information for the first time, potentially transforming the relationship between doctors and patients, as well as the business of healthcare.

In a little-noticed decision last week, a federal judge in Washington, D.C., ruled in favor of a consumer group that sued the Health and Human Services Department to allow disclosure of specific data about doctors from the Medicare claims database.

U.S. District Judge Emmet G. Sullivan concluded that releasing the data would be "a significant public benefit," and ordered the department to turn it over by Sept. 21.

With information on more than 40 million patients and 700,000 doctors, the Medicare database is far richer than any private insurer's. Though it does not have information on some doctors, such as pediatricians, who don't treat Medicare patients, it is considered the mother lode for data on those who treat adults, because Medicare recipients are a mainstay of most practices.

More here.

White House Says Office of Administration Not FOIA-able...

I'd like to hear your thoughts on this line of argumentation...

The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of e-mails missing from White House servers.

The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.

Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit in May seeking Office of Administration records about the missing e-mails, including when they were deleted from government computer files. CREW said it understood that internal White House documents had estimated at least 5 million e-mails were missing from March 2003 to October 2005.

Perhaps the most interesting graf of the story:

Much of the White House, including the offices of President Bush and Vice President Cheney, is not subject to FOIA, which allows the media and the public to demand disclosure of federal public records. But the Office of Administration, which was formed in 1977 and handles various administrative and technology duties, responded to 65 FOIA requests last year and even has its own FOIA officer, records show.

More here.

FOI At Work...

An excellent column on the secrecy plaguing schools, and parents fighting back...

For a long time, Dawn Mosisa had trouble forgiving herself for the way she shrugged off her daughter's story about the teacher who hit one of her second grade classmates in the spring of 2003. Her daughter said the man ordered the class to count to 10 in French while he hit the boy 10 times with a ruler.

The girl was not in the habit of making up such stories, the mother said, but like most parents, Mosisa did not want to think that any educator would be so cruel, so she chose not to believe it. When the teacher left the school the next year, Mosisa grew more concerned. But she said she could not get anyone at Maryvale Elementary School in Rockville to explain to her or her child exactly what had occurred and how they should respond.

Abuse of a student at school is a parent's nightmare. Not only do such incidents harm the victims and their parents, but they also trouble the children who may have witnessed the event and their parents. Such cases usually remain undisclosed because parents do not want their children embarrassed or disturbed by public knowledge of what happened. But Mosisa, 44, a student financial services official for a public university, has given an unusually detailed account that sheds light on a rarely examined side of public education.

The instinct of school administrators to keep parents ignorant of allegedly unpleasant or controversial behavior by teachers is backed by state regulations, union rules and fear of lawsuits. The administrators who refuse to answer parental questions say there is nothing they can do. But the anger felt by parents like Mosisa is often not eased by the recognition that the administrators would like to tell them more, but are not allowed to.

Exactly what Mosisa's daughter witnessed at Maryvale Elementary remains unclear because the school's and the teacher's versions of events are unavailable. That is precisely why parents at Maryvale, and at other schools that suffer such episodes, are so upset with the way the system ignores their pleas for information. There appear to be no significant efforts to rewrite the regulations to allow them to know what happened to their children. Many parents say they think such efforts would be doomed by prevailing legal practices, so they instead try to forget about what happened and move on.

More here.

A Huge Victory In Illinois...

The employment contracts of public employees, even if they are contained within a personnel file, are public records under Illinois' Freedom of Information Act, Illinois' 4th District Appellate Court has ruled.

A panel of three judges ruled unanimously that the Anna Gazette Democrat had a right under the FOIA law to see the employment contracts of Southern Illinois University President Glen Poshard, former SIU president James Walker and SIU employees John Jackson and Mike Lawrence.

The decision, written by Justice Robert Steigmann, reversed a ruling by Sangamon County Circuit Judge Leo Zappa.

While there is an exemption for personnel files and information that would be an invasion of privacy, the appellate court said, another portion of the law is more important in this case.

That section says, "The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

"Liberally construing the FOIA in accord with its intended purpose, we conclude that the statutory definition of 'public records' includes the information contained in the employment contracts at issue," Steigmann wrote.

"Contrary to defendants' (SIU) suggestion, the mere fact that personnel files are per se exempt from disclosure ... does not mean that the individual contracts are also per se exempt simply because they are kept in those files."

More here.

How Much Fun Is THIS?????

The folks in Pennsylvania just keep getting better at this FOI stuff! Now they have cooked up a contest....

To illustrate the problems Pennsylvania’s journalists and citizens face in obtaining public records, the Pennsylvania Newspaper Association, together with its open records reform blog, passopenrecords.org, is holding the first-ever PA Open Records Challenge.

In the competition that begins in mid-August, participants will be asked to attempt to obtain a document, such as a school superintendent’s contract or the amount of legal fees spent by their town in 2006, using an open records request.

“Many Pennsylvanians aren’t sure how to file an open records request with their local or state government. Too often, they only find out how difficult the process is when they badly need information, and unfortunately, there’s a steep learning curve,” said Tim Williams, president of the Pennsylvania Newspaper Association. “We hope that the PA Open Records Challenge will draw attention to the process while making citizens aware of just how critically our state needs to reform its open records law.”

Winners will be selected from the completed, correct entries submitted to the challenge, which ends October 5. Grand Prize Winners (2) will receive a one-year subscription to their local newspaper. Ten (10) additional winners will receive Pennsylvania Newspaper Association First Amendment boxes.

Participants are asked to share their stories about their requests for information on the blog. For a contest worksheet and to view the contest rules, visit www.passopenrecords.org.

“Reforming Pennsylvania’s antiquated open records law has been in the works for years but historically many public officials resisted meaningful change,” said Jamie Blaine, editor of passopenrecords.org. “But voters have put lawmakers on notice that they want a more transparent and accountable government.”


Much more here.

Nice use of FOI....

The AP used FOIA to grab a copy of Donald Rumsfeld's resignation letter, and found scarcely a mention of the "I" word....

The word "Iraq" doesn't appear in former Defense Secretary Donald Rumsfeld's resignation letter. Neither does the word "war." In fact, the deadly and much-criticized conflict that eventually drummed him out of office, comes up only in vague references, such as "a critical time in our history" and "challenging time for our country," in the four-paragraph, 148-word letter he wrote to President Bush a day before the Nov. 7, 2006 election.

According to a stamp on the letter, Bush's office acknowledged receipt the next day, as voters were going to the polls. Bush announced Rumsfeld's departure a day later, after the massive anti-war vote that swept Democrats into control of the House and Senate.

The elusive letter — which the Pentagon denied existed as recently as April — surfaced this week in response to multiple Freedom of Information Act requests by The Associated Press.

More here...

ABA ScrapsCriminal Records Proposal

Good news on the ABA front today, as the group backed down on its well-intentioned but really bad idea: to the proposal, said limiting public access to records would violate the First Amendment and make it harder to expose misconduct by police and prosecutors.

"We've always said that if discrimination is the problem, then directly address the problem, don't try to hide reality or hide the historical record," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The proposal urges governments to seal files immediately in cases of people who were arrested but never convicted of crimes, or whose convictions were later set aside. The records of those convicted of misdemeanors and felonies should be closed after some undefined period of law-abiding conduct, the measure says. Violent crimes, large-scale drug trafficking and similarly grave offenses would not be included.

More here.

FEMA Reverses Itself, Wisely

The government said that it will release, to the News-Press and two other Gannett-owned newspapers, public records on Florida disaster grant payments beginning Aug. 17.

This reverses an earlier statement that The News-Press and the two other Florida papers would have to wait on another court ruling before receiving the addresses of the 660,000 households that received $1.2 billion from the Federal Emergency Management Agency after the 2004 hurricane season.

Complying with an 11th Circuit Court of Appeals decision, FEMA said Monday that the agency would release the public records to the Sun-Sentinel, which had also sued for the records. But it was denying the Gannett papers the same access. That changed Wednesday. The information is coming in two batches because the data files are huge, said spokesman Aaron Walker.

More here...

New CJOG Report Out

NEW CJOG REPORT DETAILS FOIA WOES: A new analysis from the Coalition of Journalists for Open Government documents the steady erosion of federal FOIA. The report notes “current government handling of FOIA requests is deteriorating” across the government agencies. Some highlights:

-- Two of every five FOIA requests filed in 2006 were not processed.

-- Number of exemptions cited to support the withholding of information has increased 83% since 1998.

-- The number of FOIA denials increased 10% in 2006.

-- Cost of processing FOIA requests is up 40 percent since 1998, even though agencies are processing 20 percent fewer requests.

-- “Most people are waiting longer” for FOIA information.

Additionally, the report notes that the DOJ is “consistently granted the lowest percentage of [FOIA] appeals of any agency — only 4% in 2006.” The DOJ’s “rate of grant-making is down 70%” than that of President Clinton.

For a full copy of the report, head to CJOG.

Quote of the Week...

House Majority Leader Steny H. Hoyer (MD) released the following statement this afternoon in response to the President’s remarks on the economy:

“Receiving a lecture on fiscal responsibility from President Bush is a little bit like getting a lecture on the Freedom of Information Act from the Vice President. That is, it strains credulity."

Hee, hee.....

CD

The Latest from PA FOI Reform...

This Philadelphia Inquirer editorial gives us a nice update:

Legislators in Harrisburg can take an important step tomorrow to strengthen Pennsylvania's open-records law, one of the weakest in the nation.

A state House panel will review a bill that would give residents more clout when seeking information on everything from zoning decisions to expense reports of public officials.

Current state law has the issue backwards. It places the burden on citizens to prove why any government record should be open for public inspection.

A bill from Rep. Tim Mahoney (D., Fayette) would shift the burden onto state and local agencies to explain why certain records should be kept secret.

The measure contains other important features. It would cover the legislature, which is currently exempt. It would create an independent office to handle requests for state records and appeals of denials. It would increase the fines for willful violations from $300 to $1,000.

House Majority Leader Bill DeWeese (D., Greene) and Senate Majority Leader Dominic Pileggi (R., Delaware) say strengthening the open-records law is a priority.

But there is ample skepticism about how much openness lawmakers really want. Just last month, legislative leaders refused to disclose how $360 million in the legislators' "walking-around money" slush fund was being spent in their home districts....

More here

FEMA: Alice in Wonderland Moment 10,001

So FEMA is spending a million bucks...telling people that public information about them will be -- drum roll please -- public.

The government will spend $1.1 million to notify 2.2 million disaster aid recipients that they will be releasing their addresses to the media but are using a legal loophole to further delay giving those addresses to three Florida newspapers and their readers.

The Federal Emergency Management Agency, FEMA, said Monday that it would release the information on disaster aid recipients from 1998 to 2004 to the South Florida Sun-Sentinel as instructed by the 11th Circuit Court of Appeals.

But the agency said it would wait on another court ruling before releasing it to The News-Press, Pensacola News-Journal and Florida Today, the Gannett newspapers and lead plaintiffs in a lawsuit seeking more information about how they distributed more $1.2 billion in disaster aid during the 2004 hurricane season.

The agency also said opening the records is in response to the lawsuit, does not signal a change in policy, and will only apply to the disasters covered in the lawsuit not subsequent disasters.

Because the Gannett and Tribune cases were separately filed, FEMA said that it would wait for the Middle District Court to issue a new order before releasing the information to The News-Press. They must begin to release the information to the Sun-Sentinel on Aug. 28 and roll it out over the next 90 days.

FEMA's tactics provoked the ire of First Amendment advocate Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press.

"It's ludicrous," said Dalglish of FEMA's decisions to delay the release, notify the recipients, and especially, not to see this as a precedent.

Read more here, if you can stand it.

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.