Tacoma Schools officials could have fired teacher Jennifer Leigh Rice last fall when they learned about her history of socializing with students, two attorneys say.And officials knew of issues in Rice’s past earlier than they’ve previously acknowledged, personnel records appear to show.
Rice, 31, is in Pierce County jail, charged with the August kidnap and rape of a 10-year-old boy who was in her fourth-grade class at McKinley Elementary School during the 2006-07 school year. Prosecutors charge that sexual abuse began as early as December and continued into the summer.
She also faces charges of raping a second boy, who was not one of her students, during July and August.
Rice told police she had sexual intercourse with the 10-year-old several times, including once in his bedroom on Aug. 2, according to court documents. She pleaded not guilty to all 13 counts, which include rape, kidnapping and child molestation.
The case raises questions about when Tacoma Schools officials learned of concerns raised when Rice taught at Spanaway Lake High School during the 1998-99 school year, and once they knew, whether they could and should have let her go.
District spokeswoman Leanna Albrecht responded to a list of questions from The News Tribune by directing a reporter to human resources policies posted on the district’s Web site.
“Many of your other questions deal with issues that would be addressed in what we anticipate to be litigation; therefore, we are not in a position to respond to those based upon the advice of counsel,” she wrote in a statement e-mailed to the newspaper. Among the questions she did not answer was whether any legal claims have been filed against the district in the case.After Rice’s arrest last month, Albrecht told The News Tribune that the decision to hire Rice was made before district officials had a clear view of her past.
Her comments seem to suggest there wasn’t much the district could have done.
But records show that then-Tacoma human resources director Bonnie McGuire knew within days of Rice’s Oct. 9 hire that Rice once worked for the Bethel School District, where she was investigated for inappropriate and unprofessional relationships with students.
McGuire was an assistant principal at Spanaway Lake High School when Rice came under investigation in the fall of 1998 and the winter of 1999. Allegations included that Rice drove students around, made verbal advances to a male student and attended a student party that included drinking and marijuana use.
McGuire admonished Rice then that “it was not OK for a teacher to be hanging out with students on a social basis,” records of the investigation show.
“I told her that it is not appropriate for a teacher to have students in her car, and that she could not continue this practice,” McGuire wrote in a statement for the investigatory record.
McGuire was not the only administrator to talk to Rice about her behavior, and Rice was placed on administrative leave for three weeks during the investigation. She was brought back as a substitute teacher to complete the year. She resigned that June.
Thursday, September 27, 2007
FOI At Work: School District In Denial
New Jersey Report: We Need FOI Reform
New Jersey needs to do more to make government records available to the public, a report released on Wednesday found.
The report by the New Jersey Foundation for Open Government says state open public records laws need to be strengthened and the state needs to become more committed to releasing information and providing more money and staffing to a state council that decides open records disputes.
"People throughout this state feel the system is broken," said NJFOG President Beth Mason. "They are either unable to access critical public records or the costs are so expensive as to make them inaccessible."
NJFOG includes organizations such as the American Civil Liberties Union, Common Cause and the League of Women Voters.
Mitchell Pearlman, a Connecticut lawyer and former executive director of Connecticut's Freedom of Information Commission who was commissioned to write the report, said New Jersey historically has lagged behind other states when it comes to releasing government records.
"The governor must make clear to his agency heads that they are expected to ensure that a culture of maximum openness and transparency is maintained within their respective agencies and that each agency held is held accountable for effective implementation," Pearlman said.
The NJFOG report is here. It's a good read...nice work, NFOIC Board Member Pearlman!
Ohio Ushers In Some Improvements...
For example, the bill requires the state attorney general to develop and provide to all public offices a model public records policy in order to provide guidance to public offices in developing their own policies for handling public records requests. The public offices are required to adopt their own public records policy; use of the model policy is voluntary.
Also, the attorney general is required to develop, provide and certify training programs and seminars for elected officials to enhance the officials’ knowledge of the duty to provide access to public records.
House Bill 9 also clarifies a few things. For example, as of Saturday, the public records act will note that:
-- A request is not required to be in writing.
-- No public office can require disclosure of the identity of the person requesting the records.
One setback: concealed-carry records.
According to the new law, a journalist may submit to a sheriff a signed, written request to view the name, county of residence and date of birth of each person to whom the sheriff has issued, renewed, suspended or revoked a license or temporary license to carry a concealed handgun.
What does that accomplish, beyond intimidating the requester who has a lawful right to that information?
The full text of House Bill 9 or the bill analysis is available from the Ohio Legislative Services Commission Web site.
Wednesday, September 26, 2007
While Some Governments Debate Online Records...
This is EXTREMELY cool....
The Salt Lake Tribune's Utah’s Right To Know has collected statewide and local databases at a dedicated Web site. Some of the data comes from other sites, but the newspaper is also collecting government salaries in one database. This is a GREAT idea! It's presented in a fun, user-friendly format that has this non-Utahan up late plunking around....
Tuesday, September 25, 2007
FOI At Work...
See "Undue Influence" here. It's a wonderful example of FOI at work.
Those Pesky Norfolk Pols...
And a bit later on....Uh-oh. Looks like Norfolk City Council's undemocratic instincts are on display.
Again.
Maybe it's time to remind these elected officials that city councils are not exclusive clubs with secret signs and handshakes.
Council members aren't supposed to hide from the people. Or shield the citizens from unpleasant news.
Yet that's exactly what Norfolk's honchos did last week when they reviewed a report - prepared at taxpayer s' expense, of course - on the financial antics of a now-defunct nonprofit development corporation. These shenanigans could eventually cost taxpayers a whopping $245,000.
That's unlikely to happen today, however, because the politicians have decamped to Smithfield for a retreat.
Determined citizens would have to travel more than 50 miles round trip to attend. Technically, the retreat is open to the public.
This urge to flee is "used all too frequently" by public bodies, says Charles Davis, executive director of the National Freedom of Information Coalition at the Missouri School of Journalism. He called out-of-town meetings "thinly veiled" attempts by elected officials to meet out of the public eye.
"They've got nice meetings rooms in Norfolk," Davis noted. "I've been there."
Jennifer Perkins, executive director of the Virginia Coalition for Open Government, wasn't surprised that Norfolk City Council was assembling outside city limits.
"We have this come up fairly often," she sighed. "They forget, as a public entity, they not only need to obey the letter of the law but also... the spirit of the law.
"They should be close to home during convenient hours."
Now there's a thought.
Read the whole thing here.
A Woeful Access Policy at the Coast Guard...
The U.S. Coast Guard has announced it will withhold the names of people saved in rescue cases unless they are part of an “open and active” search-and-rescue operation.
Once a rescue case is closed, queries for names must be made through a Freedom of Information Act request. The new nationwide policy was revealed in a memo released Aug. 24 by Rear Adm. David Pekoske, assistant commandant for operations. The policy went into effect immediately.
The directive acknowledges that “the release of information to the public concerning individuals being sought or having been rescued by the Coast Guard often supports the [search-and-rescue] mission.”
The Coast Guard says the new rule protects the privacy of those rescued.
“We wanted to balance the privacy right of individuals with the public’s need to know when search-and-rescue cases are active,” said Coast Guard spokeswoman Angela Hirsch. “When a boat is missing, we put out the names of people who are missing. There are many cases where people are reported missing, and they turn up or are not missing. Obviously, there is a need for names to be released in these cases. But once a case is resolved, it is no longer open, and names are then not releasable without an FOI request.”
Loren Cochran, an attorney for the Reporters Committee for Freedom of the Press, said the Coast Guard’s new policy was troubling.
“Any time you have a government agency that refuses to turn over information that the public is legally entitled to, it causes real concern,” Cochran said. “In this case, it looks like the Coast Guard has developed a practice in which they are controlling when to disclose the names of those rescued. That selective disclosure makes the public wonder, ‘Why?’ Is it because the Coast Guard only wants to disclose positive information?”
Monday, September 24, 2007
A Wonderful Tale of FOI Woe...
This is the saga of the struggle to get police records and the kind of bureaucratic resistance you can find there. I'm still trying to decipher the records I did get in order to get some sense of the accuracy of Zach Friend's comments about the City Hall Sleep Out in early August.
On August 19th, the Sentinel came out with its Sunday smear job justifying the unconstitutional police sleepcrime ticketing of Homies for the Homeless at City Hall. SCPD PR propagandist Zach Friend returned one call then declined any further information.
On August 20th, I filed a Public Records Act requesting the "detailed incident summaries" of August 12-18 to determine just how many tickets and citations were issued for the alleged vandalism, bathroom littering, drug use, public sex, etc. etc. alleged by Friend in the Sentinel story.
Indymedia covered the story somewhat differently.
For some criticism of the Sentinel coverage see "Sleep Ban Fighters Regroup after Saturday Morning Police Raid."
The preliminary answer Trisha provided was that NO TICKETS were issued at City Hall during that week for anything other than sleeping, 2 on Monday August 13, 4 on Saturday August 18.
I wanted to go further to find out what the nature of the complaints were and who made them. To uncover this, I requested the detailed incident recall traffic (between the 911 dispatch and the cops responding) for that period of time.
I just wanted to view it, not buy copies. Records supervisor Trisha Husome refused.
I requested electronic copies. Records supervisor Trish Husome insisted they were not available.
I requested to know how much it would cost. Husome said there was no way of knowing. I'd have to deposit $35 and then pay overage, depending on what was printed up.
I then asked her to print out half the request, so that I could get a sense of how many pages were coming out and what I was getting. She insisted that a new Public Records Act request be made.
I did this under protest.
This time, somehow, she told me it would be $1. But she insisted I make another trip down to the police station to make the $1 deposit, and refused to take it out of the $35 deposit.
She also noted that they'd printed out the first half of the August 20th request for the Cithy Hall homeless "crime wave" and it was $6.75. I again requested she subtract $1 from the $28.25 cash of mine they still had. She refused, saying it was a "different request."
On the two occasions I visited the SCPD, she wasn't there nor was anyone there to cover for her department.
When I went in to pick up the records she'd printed out (Aug 12-14, the $t6.75 bundle) and attempted to put down $1, the SCPD workers at the desk refused to take the money and retreated to a backroom because I was making an audio recording to document what was going on. I waited 10-15 minutes with Andrew, a witness, and then left.
I've filed a complaint with Husome's superior about her behavior as well as my concern about the behavior of the clerks at the SCPD window (going on strike when I pulled out a tape recorder). No response.
But then, perhaps that's understandable. Husome's supervisor is none other than Deputy Chief Kevin Vogel, the cost-conscious police official who saved the department money by investigating himself and giving himself a clean bill of health in the political infiltration and spying case of 1 1/2 years ago. [See "Investigation Reveals More SCPD Spying"
I was aware that the courts were calling sheriffs, delaying the presentation of records, requiring a special viewing room, etc in order to slow down our access to Sleeping Ban court cases [See "Public Records, even just one? Only if you agree to pay!" at http://www.indybay.org/newsitems/2007/06/30/18431926.php] But courts are exempted from the Public Records Act (though they are required to follow the California Rules of Court, and the SCPD is not.
Thursday, September 20, 2007
An FOI Exemption for Big Pork?
BILLS PROPOSE FOIA EXEMPTIONS FOR BASIC FEEDLOT "PHONE BOOK" LISTINGS
Since 2005 the US Department of Agriculture has been compiling a database called the National Premises Information Repository, containing what the agency characterizes as bare-bones "phone book" information on commercial livestock farms: name, address, telephone number, and type of animals raised.
Some agency officials and federal lawmakers would like to make this routine information exempt from disclosure under the Freedom of Information Act. There are two examples of such FOIA exemptions in legislation introduced in the 110th Congress:
- HR 2301, Sections 4 and 6, sponsored by Rep. Steve King,(R-IA).
- HR 1018, Section 2, sponsored by Rep. Jo Ann Emerson (R-MO).
In addition, both H.R. 2301 and H.R. 1018 could adversely impact state open-government laws because the bills purport to pre-empt any state laws that would permit disclosure of the farm names and addresses. Thus, while neither of these bills is presently under active consideration, they bear watching due to their potential to damage the public availability of information.
(This article was written by Christine Heinrichs, with Mary Zanoni. Both are SEJ members.)
Tuesday, September 18, 2007
Missouri AG to Guv: E-mails are public records
Quite a lively flap in the Show-Me State, where the governor rather cavalierly declared that he deletes his e-mail. The whole thing blew up after a column from my buddy Tony Messenger at the Springfield News-Leader questioned use of government e-mail use in a state Republican Party offensive over Planned Parenthood's lawsuit against the state.The Missouri attorney general's office sent a message to media outlets Monday emphasizing that e-mails on the state system are public records and often should be preserved.
The office was reacting to reports that Gov. Matt Blunt's staff routinely purges e-mails and does not consider them public records.
James Klahr, the attorney general's lead lawyer on Missouri's open-records "Sunshine Law," sent the message to dismiss the "unnecessary debate" over the issue.
The message does not mention Blunt but declares, "There should be no debate — e-mail communications are public records."
And how about this amazing line?
Topics that are not typically hot-button election talk — the Sunshine Law and the protection of records — may emerge as key issues in the governor's race.
Klahr's message to newspapers and TV and radio stations says "we will be redoubling our education efforts to ensure members of the public and government officials" understand how the Sunshine Law applies to e-mails.
A spokesman for Nixon said the office will send media outlets copies of the law, which details the public's access to government documents and meetings.
State law gives the attorney general, local prosecutors and the public the power to sue over Sunshine Law violations. "Enforcement of violations of the record retention law depend on the nature and content of the e-mails or documents and the circumstances surrounding their destruction," said the spokesman, John Fougere.
Blunt's office on Monday declined to comment.
Friday, September 14, 2007
Terrorism or Radioactive Drinking Water? What's the greater risk?
The risk of a terrorist attack was wrongly used by the Scottish Executive as an excuse to keep information about radioactive contamination of drinking water secret.
The story continues:
The Scottish information commissioner, Kevin Dunion, has found the Executive guilty of breaching freedom of information legislation by failing to provide documents from a file entitled "Release of radionuclides in drinking water systems."
TheSundayHeraldoriginally requested the documents in December 2005, and appealed to Dunion after they werewithheldbytheExecutive.The verdict of his investigation, received on Friday,isadamningindictmentof the official secrecy that persists in the Scottish civil service.
This, dear readers, is why access is soooooooooo important.
California legislation on Ahnold's desk...
State agencies would have to post information on their Web homepages about requesting public records if the governor signs a bill sent to him by the legislature.
Assembly Bill 1393 also would require agencies to include a form to use in requesting public records.
The bill was stripped of enforcement provisions that would have allowed anyone whose record request was turned down by a local government to request an attorney general review.
Cities and counties also could have faced fines for deliberate violations of public records' rules under the original bill.
Finally, the bill creates a task force to consider what records should be routinely posted on state Web sites and how the existing law is working.
Schwarzenegger, who previously vetoed a different version of this bill, has until Oct. 12 to act on this bill.
S.Dakota Court: Yes, The Guv Can Have a Secret Pheasant Hunt
The state's largest newspaper has failed in its legal quest to gain access to the list of people invited to the annual governor's pheasant hunt in 2005.More here.The South Dakota Supreme Court ruled unanimously Thursday against The Argus Leader of Sioux Falls, which had argued that the list is a public record that must be released. People are entitled to know what government officials are doing, the newspaper said.
The high court said no state law requires release of the information, upholding an earlier ruling by a circuit judge who said the list is not a record that is required by state law to be kept.
Generally, records that must be kept by law are public documents unless otherwise specified.
Circuit Judge Max Gors ruled against the newspaper in April 2006.
The invitation list for the hunt, which state officials use to attract businesses to locate in South Dakota, should be made public because it is an official work product of the state economic development office, an Argus Leader lawyer had also argued.
Setting that claim aside, too, the high court said state law gives discretion to the economic development secretary to withhold most of the information the agency receives.
"The right to public inspection is conditional," wrote Circuit Judge John Bastian, in the high court ruling.
Bastian and four other circuit judges were appointed as acting justices to consider the case after all five Supreme Court justices disqualified themselves.
State officials have argued that release of the list of those invited to the exclusive pheasant hunt could jeopardize future business prospects. They also feared that identifying invitees could cause them to become targets for unwanted solicitations.
Wednesday, September 12, 2007
FOIA At Work: The Coretta Scott King Files
She had an unforgettable face: serene, beautiful and yet with a trace of sadness that few would say she did not earn. Indeed, Coretta Scott King’s life was filled with trouble and adversity caused by those opposed to her cause.
And among those opponents? J. Edgar Hoover and the FBI.
Now, after more than a year’s work, KHOU-TV in Houston and its investigative unit, 11 News Defenders, have obtained a world-exclusive first look at the FBI’s file on Coretta Scott King.
Comprised of nearly 500 pages, with some of those documents partially or totally censored, the intelligence file paints a disturbing picture.
For example: The FBI very closely spied and did surveillance on Scott King for years, keeping close track of her public appearances, speeches and especially anytime she traveled.
More here.
FOI At Work...
From the Northwest Florida Daily News...
Come into my office.
Roughly every eight minutes, an Emerald Coast principal says that to a student facing suspension.
Schools in Walton, Santa Rosa and Okaloosa counties have suspended or expelled students nearly 8,000 times this year, out of a total student population of about 60,000.
The Daily News gathered suspension data from all three school districts for the past two school years through February of this year.
An analysis of the information revealed some significant disparities.
Black students are suspended at twice the rate of white students.
Boys of any race are suspended about three times as often as girls.
And some schools suspend students frequently, while others suspend rarely - sometimes never.
FOI At Work...
NASA e-mails released Wednesday indicate the space agency was looking for ways to prevent astronaut meltdowns just three months before one-time shuttle flier Lisa Nowak was arrested in a scandalous love triangle.The e-mails from late last year show that space program employees interviewed the former colleagues and the "common-law wife" of ex-astronaut Charles Brady Jr. after he committed suicide in July 2006. It seemed to be an effort to find behavioral clues that could be a tip-off in future cases.
Brady, who had flown in space once 10 years earlier, was a Navy captain and flight surgeon who left NASA in 2002.
The e-mails, which included no medical details and were heavily blacked out, were obtained by The Associated Press under the Freedom of Information Act.
In one dated Nov. 8, 2006, a NASA or contractor employee whose name is blacked out wrote about being instructed to look into Brady's death "in order to take from it any lessons learned in the hope that such an event might be prevented from ever occurring again."
The e-mail writer went on to suggest an hourlong meeting with officials to discuss the matter. "There is no rush, of course," the e-mail stated. "This can wait until early JAN if needed as I know you are very busy with STS 116."
"STS-116" was the shuttle mission that flew in December 2006. Its pilot was William Oefelein, who was part of the love triangle that brought down fellow astronaut Lisa Nowak in February.
A FOIA Database...
You’ve heard a lot about new legislation recently approved by Congress that promises to improve the much-beleaguered Freedom of Information Act.
Now comes the Sunshine In Government Initiative to show you why the 41-year-old law is so important.
The coalition of media groups concerned about the growing level of government secrecy has created a new searchable database of news stories that used FOIA.
So far there are 233 stories posted on the group’s Web site. If you know about a story that used FOIA submit the story at this address: FOIAstories@sunshineingovernment.org.Monday, September 10, 2007
An Update from Pennsylvania...
A major obstacle standing between proposed reform and passage is the reformers themselves. They all appear to agree on the need for more access to public records, but they don't all agree on how it should be accomplished...
More here.
Sunday, September 09, 2007
Indiana FOI Czar: No ID Needed
On July 10, Snyder telephoned the police records department to ask for a case number of a police report from September 2006.
Snyder said the clerk asked her name and then asked with whom Snyder was affiliated. The clerk indicated she could not provide information unless she knew how Snyder was "connected."An officer then told Snyder he would not provide the information unless she came to the police department, according to Snyder's complaint.
After Snyder filed the complaint with the state public access counselor, the police department responded, saying information is not available over the telephone and must be obtained in person during the records department's business hours.
Public access counselor Heather Willis Neal said in her opinion that a police department may require a records request to be in writing and may refuse to provide information over the phone.
More here.
A Wonderful Tribute to Our Very Own Frosty!
And here is my favorite part:Virginians can see what their government is up to thanks in no small part to one man: Forrest "Frosty" Landon.
A modern Prometheus, he brought light to the people and taught them how to turn it on the gods, without all the messy vulture business that followed. He taught the gods, too, that sunshine is something to embrace as the foundation of good government.
Now, as he begins his second retirement, his hard work has garnered much-deserved recognition. The National Freedom of Information Coalition and the Society of Professional Journalists recently named him one of the "Heroes of the 50 States" in The Open Government Hall of Fame.
Frosty has been a Roanoke institution for decades, first with WDBJ and then at The Roanoke Times where he rose to executive editor before retiring.
Retirement did not sit well with him, though. In 1996, at Frosty's instigation, the Virginia Coalition for Open Government formed, and he became the executive director. He led a crusade against government secrecy on behalf of all Virginians for a decade, stepping down from the post this summer to begin a second retirement.
His tireless insistence that government performs best under public scrutiny motivated many improvements. Virginia created its Freedom of Information Advisory Council at his urging...
For a decade and more, Frosty has been Virginia's conscience on questions of open government. He defended the public's need and right to monitor government.
Without his work, our democracy would be all the weaker, and most people wouldn't even realize it because the truth would be hidden away in secret meetings and shrouded in unreleased documents.
Thursday, September 06, 2007
New FOI Report on Mediation Out...
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!
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?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.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.
More here.
Wednesday, September 05, 2007
An FOI Request in Ohio Raises Issues of Anonymity...
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.
Tuesday, September 04, 2007
New Secrecy Report Card Out...
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!
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...
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.
Monday, September 03, 2007
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.Friday, August 31, 2007
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....
Thursday, August 30, 2007
Washington Gov Denies Access to...well...you just can't make this stuff up
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...
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.
Thursday, August 23, 2007
White House Says Office of Administration Not FOIA-able...
Perhaps the most interesting graf of the story: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.
More here.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.
Tuesday, August 21, 2007
FOI At Work...
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.
Sunday, August 19, 2007
A Huge Victory In Illinois...
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."
Saturday, August 18, 2007
How Much Fun Is THIS?????
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.
Thursday, August 16, 2007
Nice use of FOI....
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...Monday, August 13, 2007
ABA ScrapsCriminal Records Proposal
"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.Friday, August 10, 2007
FEMA Reverses Itself, Wisely
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
-- 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.
Thursday, August 09, 2007
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
Tuesday, August 07, 2007
The Latest from PA FOI Reform...
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
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.
Monday, August 06, 2007
More on FOIA reform passing out of the Senate...
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.
Sunday, August 05, 2007
News of the FOIA deal...
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.More...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.
Saturday, August 04, 2007
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.
Kate Marymont, vice president/news of The News-Press, stands strong about Gannett's effort to protect the public's right to know.
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.
"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."
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Wednesday, August 01, 2007
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 it
requires 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 complex
legal 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 of
the 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."
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