Times-Picyune FOIA Request to FEMA: 884 Days and Counting

From the Society of Environmental Journalists' excellent FOI newsletter:

Suppose there were a catastrophe and you needed information fast. Would you call FEMA?

If FEMA (the Federal Emergency Management Agency)'s performance under Freedom of Information Act is any measure, the journalists and the public could have zero confidence in getting timely warnings. Asking FEMA for information, it seems, is still the equivalent of calling for a lead life preserver.

Shortly after Hurricane Katrina destroyed much of New Orleans in Sept. 2005, triple-Pulitzer-winning reporter Mark Schleifstein of the New Orleans Times-Picayune filed a FOIA request with FEMA asking for specific records about how FEMA had responded to the disaster. The original request was filed Oct. 5, 2005.

Now, some 884 days later, Schleifstein is still waiting for the information.

Schleifstein had asked for records on the activation of "Rapid Needs Assessment Teams" for Hurricanes Katrina and Rita, the reports from those teams about populations and areas affected and their recommendations of help needed, and records of resulting actions.

And he had asked for "expedited" handling of his request.

Schleifstein told FEMA a response was needed quickly because the situation was "life-threatening." Without adequate levee protection, New Orleans and other Gulf areas were vulnerable to a Katrina repeat — and they urgently needed to know what kind of preparedness and response to expect from FEMA.

FEMA put Schleifstein on hold.

A year later, they wrote him to see if he was still interested in getting the information he had asked for. Schleifstein wrote back, saying "YES" (in capitals).

Another year went by, and FEMA wrote him again, asking if he still wanted the information. Schleifstein answered "YES" again in a Jan. 29, 2008, letter, adding:

"It is now 884 days since Hurricane Katrina hit New Orleans, flooding 80 percent of my community, killing more than 1,500 people. Last week, New Orleans Homeland Security Director Terry Ebbert, in an address to the American Meteorological Society, said he still has grave concerns about the ability of this nation's emergency preparedness preparations and their potential to respond to a Katrina repeat in New Orleans."

The Secret Police Will See You Now...

Rep. Bill Hinkle says a public-records bill he's sponsoring would help protect police officers and their families from retribution for doing their jobs.

But opponents say the proposal — the latest attempt to limit what is considered public information — is too broad, would cost too much to implement and isn't needed.

House Bill 2490 would exempt from disclosure personal information about a commissioned police officer or his or her family members. That would include home addresses, phone numbers, property and tax records and dates of birth.

State law already prohibits government agencies from releasing home addresses and phone numbers of employees — including police officers. But names, birth dates, salaries and job titles are generally available.

Under the bill, citizens could request the full name, year of birth and photograph of individual officers. The officers or their immediate supervisors would first be notified of the request and would be provided the name and city or county of the person requesting the information.

"We have a group of people in this country that protects the homes in our communities, and we're exposing them to a liability that is unfair," said Hinkle, R-Cle Elum.

The bill is opposed by the Coalition for Open Government and media organizations.

"My goal is to keep it from even getting a hearing," said Toby Nixon, president of the Coalition for Open Government, "because once it gets out in the wild, the law-enforcement community can put a lot of political pressure on the Legislature."

Rowland Thompson, a lobbyist for Allied Daily Newspapers of Washington, said the bill would make it much harder for citizens to monitor police and learn about officers accused of wrongdoing.

"These are people who we give a lot of responsibility and trust to, and we allow them to move through the population armed with the ability to incarcerate people," Thompson said. "I mean, we trust them, but it isn't a blind trust."

More here.

Want to COver Our Student Gov Meetings? Then we'll shut down the presses!

Hey everybody! It's that rarest of First Amendment no-nos, the prior restraint.

The Montclarion, Montclair State University's student-run newspaper, was prevented from publishing its first issue of the semester, due to a Jan. 22 budget freeze by its parent, the Student Government Association (SGA).

SGA bookkeeper Pamela Mitchell contacted the publishing company, Wall, N.J.-based RFM Printing, to inform them of the funding suspension and to instruct them not to publish the Jan. 24 issue of the paper, or any subsequent issues, until further notice. The production coordinator who spoke to Mitchell recited notes she had from the conversation.

"It was very matter of fact," said the employee. "[I was told] do not print an issue until further notice."

The freeze was initiated through an undated letter addressed to Montclarion Editor-in-Chief Karl de Vries on Tuesday, Jan. 22, the first day of spring semester classes. The reasons cited were related to a legal counsel agreement between The Montclarion and its former attorney on Jan. 19, 2007.

Attorney Sal M. Anderton, who represented The Montclarion for nearly a year, was fired by SGA President Ron Chicken in December . Anderton advised the newspaper in its pursuit against the SGA for what The Montclarion maintains is a closed session practice in violation of the New Jersey Open Public Meetings Act.

The budget freeze letter, signed by Chicken and SGA Treasurer Melissa Revesz, claimed an improper legal service contract, a violational "expenditure of funds," and the denial of The Montclarion to submit the correspondences between the newspaper and the attorney.

The Montclarion's position is that the information is protected by attorney-client privilege. The paper will continue to refuse the request. Chicken requested the records verbally on Nov. 14, again on Dec. 5 and in a letter on Dec. 13.

Last year's SGA President and Treasurer approved the payment of Anderton's $5,000 retainer fee. The fee was drawn from the SGA's own budget, from a line previously designated and approved by the legislature as "Montclarion Legal Fees."

"Technically that's the contract," said Angelo Lilla, former SGA President, of the purchase requisite he signed approving the retainer fee. "It's a document with two signatures approving and showing proof that we understand and agree to the terms of payment."

Chicken established in December that The Montclarion would receive legal counsel and advice, if necessary, from SGA attorney Aaron Easley. The Montclarion must submit legal queries for Easley through Chicken and is not permitted to access him directly.

More here.

When the Requests Get Creepy...

Allan Parmelee has a lot of time on his hands - another 19 years, for having the cars of two lawyers firebombed. He's using it to dig up information about the people who sent him to prison, including judges and prosecutors, as well as pretty much every other public employee he's encountered in his legal odyssey.

But his hundreds of requests under the state's Public Records Act have become so numerous, and so creepy, that King County Prosecutor Dan Satterberg has taken the extraordinary step of asking a judge not only to let his office ignore Parmelee's pending requests, but to bar him from filing any more with the prosecutor's office in the future. Superior Court Judge Glenna Hall is scheduled to hear arguments Tuesday in the case, which tests the limits of the state's disclosure law.

"I am a proponent of open government, and I am very familiar with the Public Records Act and its underlying philosophy," Satterberg wrote in a declaration. "I do not bring this petition lightly. However ... Allan Parmelee has a long history of using the Public Records Act to try and intimidate and harass my deputies and other criminal justice system employees."

Parmelee, whose criminal history also includes convictions for harassment and stalking, was convicted at his second trial in 2004 of first-degree arson in the firebombing of a vehicle belonging to his ex-wife's divorce lawyer in 1998, and of a vehicle belonging to a lawyer who represented his roommate's ex-girlfriend in 2002. His first trial ended in a mistrial because he was found to have personal information about the jurors, one of whom reported receiving a phone call from him.

While in prison, he has sought records - such as addresses, photos, pay, schedules, professional histories and birthdates - of thousands of Washington State Patrol troopers and state Department of Corrections staff, Satterberg wrote in court papers. Several requests since last October seek information about everyone in Satterberg's office, and in particular photos and personnel records of three deputy prosecutors who handled his cases. He's also seeking video or other electronic images of two Superior Court judges - including Julie Spector, who sentenced him to 24 years - and two court commissioners.

In addition, he has asked the state attorney general's office for records including "working hours, schedules ... (and) photographs in color" of eight current and former assistant attorneys general. In a phone conversation, Parmelee told one, Brian Maxsey, that he might pay a visit to his house; another, Sara Olson, received a letter from Parmelee that referenced the firebombings and said she was acting "so unprofessionally (as) to invite some similar response."

The state has won previous orders against disclosing specific information to Parmelee, such as photographs of Corrections staff, but for an agency to seek to bar someone from exercising his rights under the Public Records Act is "extraordinary," said Seattle open-government lawyer Michele Earl-Hubbard.

More here.

In Texas, Where the Cops Are Hired on the Basis of...well...

Twenty years ago, police unions in Texas converged on the Capitol with a mission.

They found friendly legislators to push a bill that appeared to address only a mundane administrative matter about personnel record-keeping. It quickly passed in 1987 with little public notice.

But buried inside were provisions that ever since have kept taxpayers in the dark about some of the most important management practices of public institutions in Texas.

The law forever closed to the public whole sections of city personnel files.

Because of this change, known as Section 143.089 of the Local Government Code, most Texas taxpayers — with the exception of Dallas — never can know how their police departments carry out the vital functions of vetting and evaluating recruits. They also can't readily know how thoroughly officers accused of misconduct are investigated.

Through the years, 143.089 has impeded the public from exploring these practices.

Emblematic of the problem is the case of former Police Officer Joseph Anthony Evans who, the San Antonio Express-News has learned, was hired in 1994 despite a checkered past that disqualified him from being a cop. After 12 years on the force, Evans faces sentencing Wednesday for allowing his live-in girlfriend to peddle methamphetamines.

Documents in his personnel file, normally cloaked by the law, became public while he was being prosecuted. The city, citing the law, refused to release to the Express-News similar documents that would show whether other officers were hired despite a cloud.

More here. And the main story, here, is a GREAT example of why FOI matters so much and why cutting off access to this kind of stuff can be really dangerous.

Why Access Matters...

If you can't get access to the 911 calls -- and you can't in many, if not most, states -- then citizens have no way short of taking their word for it to determine whether the system works:

Under the law governing the 911 enhanced emergency call system, only the police chief here will be able to listen to two calls from people who complained they were handled inefficiently by Androscoggin County dispatchers.

Sheriff Guy Desjardins plans meet with police Chief Ernest Steward Jr. prior to the next selectmen's meeting on Monday, Feb. 4, and will then meet with selectmen to answer questions, Desjardins said Thursday.

He and Steward plan to have reports ready then.

Desjardins defended his dispatchers' handling of the calls in question after listening to the audio tapes of two separate incidents earlier this month.

In one case, the time of arrival of an ambulance is in dispute. Desjardins says a person can be heard on the tape answering a dispatcher's question affirmatively when asked if the ambulance had arrived. That response time was within 4½ minutes.

The person who made the complaint, Richard Korhonen of Livermore Falls, said it took more than 15 minutes and he said the dispatcher was not listening.

Korhonen was one of two people to voice concern to selectmen during a board meeting on Jan. 22.

Selectmen asked Town Manager Martin Puckett and Steward to look into the complaints.

Desjardins initially thought he could make copies of the calls and bring them up so Puckett and Steward could listen to them.

He later learned that the audio recordings are not considered public in Maine, Desjardins said. That includes any medical information about a person receiving emergency services through the E911 system

However, Steward, as a law enforcement officer, would be able to review the calls in question with the sheriff, Desjardins said.

More here.

PA News...

State lawmakers are gearing up to put open-records legislation — a major unresolved issue — behind them next week.

Observers say there's a realistic chance the Legislature will approve a measure bringing Pennsylvania's 1957 open records statute into the 21st century by week's end. The bill declares that state, county and municipal government records are considered public unless stated otherwise and puts the burden of proof on a government to show why a record should not be made public.

"There's a realistic potential it can get to the governor's desk," said Deborah Musselman, lobbyist for the Pennsylvania Newspaper Association, which supports the legislation.

The House and Senate are nearing the endgame in their yearlong maneuvering over the issue. Key lawmakers want a resolution before Harrisburg's attention turns to the state budget. That starts shortly with Gov. Ed Rendell's Feb. 5 budget address. Symbolically, open-records action would be well received at PNA's annual government affairs conference Wednesday and Thursday. Legislative leaders participate in conference panel discussions.

"Open records will be our main priority next week," said Eric Arneson, spokesman for Senate Majority Leader Dominic Pileggi, R-Delaware. "Hope to get it all the way done and send it to the governor."

The House and Senate passed separate bills in the fall. The Senate will add a compromise amendment and send it to the House.

More here.

Virginia Donor Privacy Bill Takes a Hit...

The University of Virginia’s desire to conceal the identities of its financial donors who wish to stay anonymous hit a snag Thursday.

Lawmakers in a House of Delegates subcommittee declined to endorse a bill that would allow UVa to exempt anonymous donors’ identities from Virginia’s open records law. UVa officials assert that if they cannot promise that certain donors’ names will be hidden from the public, those potential benefactors will choose not to open their checkbooks.

“I want to allow UVa to do everything it says it needs to do to raise money for its endowment,” said Del. Glenn Oder, R-Newport News, who introduced the bill at UVa’s request. Sen. R. Edward Houck, R-Spotsylvania, has filed an identical version of the bill in the Senate.

Citing concerns over potential conflicts of interest, the House subcommittee asked UVa to return next week with amendments to the bill that would ensure anonymous donors do not gain an unfair advantage in real estate deals, procurement or admissions.

“There are some very unsavory people out there who have a lot of money and who might want to give donations,” said Del. Terrie L. Suit, R-Virginia Beach. “It gives me pause that they could give anonymously.”

The bill would do more than just shield the names of UVa’s anonymous contributors. It would also exempt from the Freedom of Information Act a long list of personal information about more than 450,000 potential donors - including their financial worth, date of birth, marital status and Social Security numbers - that the university keeps in a vast computer database.

More here.

Ah, The Irony...

The BBC today successfully fended off a Court of Appeal bid to force it to make public the Balen report, an internal review of its reporting in the Middle East.

Commercial solicitor Steven Sugar, of Putney, London, has waged a two-year battle arguing that the report should be available to the public under the Freedom of Information Act.

He claimed it should be published in the light of allegations that the BBC has shown bias against Israel. His claim was backed by the Information Tribunal, but the High Court allowed an appeal by the BBC and ruled that the case fell outside the scope of the Freedom of Information Act.

My favorite line:

The BBC maintains that it is vital for independent journalism that internal staff debates on news coverage should not be open to public scrutiny.

EPA Chief Uses White Duct Tape for Redaction...

This amazing sequence on Capitol Hill yesterday is a vivid demonstration of just how reflexive secrecy is, and how little we as citizens know about what goes on in our names...

The head of the EPA stood firm Thursday against a chorus of congressional criticism over his refusal to allow California and more than a dozen other states to impose greenhouse gas reductions on cars and trucks.

"I am bound by the criteria in the Clean Air Act, not people's opinions," EPA Administrator Stephen L. Johnson testified to the Senate's environmental panel. It was his first congressional appearance since issuing the controversial waiver denial last month.

"The Clean Air Act does not require me to rubberstamp waiver decisions," Johnson said. "It was my conclusion that California didn't meet the criteria, or at least all of the criteria."

Sen. Barbara Boxer, D-Calif., the committee chair, led committee Democrats in assailing Johnson's conclusion.

"You're going against your own agency's mission and you're fulfilling the mission of some special interests," she chided him.

Who's right? We don't know, because the EPA isn't telling, even though several staffers have been quoted in news stories saying that they all concluded that California met every criteria for a waiver.

We don't know because the EPA is using duct tape on its records...

Here is Boxer's take:

Colleagues, this is the tape, this is the tape that was put over — finally the administration had a way to use duct tape. This administration, this is what they did to us. They put this white tape over the documents and staff had to stand here. It’s just unbelievable. […]

I mean what a waste of our time. This isn’t national security. This isn’t classified information, colleagues. This is information the people deserve to have. And this is not the way we should run the greatest government in the world. It does not befit us. So that’s why I’m worked up about it and think we have been treated in a very shabby way.

Yesterday, Boxer released excerpts from an October presentation, revealing that Johnson had ignored the advice of EPA staff who were in favor of granting California the waiver. The excerpts came out after Boxer’s staff removed the duct tape from the documents and transcribed handwritten notes, under the supervision of EPA staffers.

The good news? Looks like the administration finally found a use for its duct tape.

FOI At Work: Boy Left Sleeping on Bus...

A young boy was caught on tape being left on a school bus as his classmates headed off to class.

The incident was captured on the bus's security camera, and 24 Hour News 8 obtained the tape via the Freedom of Information Act.

It was January 16 when the seventh grade student was on his way to Lakeshore Middle School in Grand Haven. The bus pulled up to the school and the other kids on the bus got off. However, the boy didn't as he fell asleep and the bus driver never noticed.

The driver then traveled to the bus garage where she can been seen on the videotape leaving the bus without checking to make sure it was empty.

She returned to the bus 20 minutes later to pick up more kids. The boy then woke up but didn't say anything. She doesn't notice him until he came up front when the bus made its first stop.

More here.

I'd Want To Exempt That Bill, Too....

Monterey County paid at least $435,000 for attorneys it hired to help with federal voting-rights lawsuits over two controversial land-use ballot measures that eventually went before voters in June.

Spending for the attorneys was gleaned from some 200 pages of documents released by county officials to a government watchdog group in the past week. Open Monterey Project officials were seeking the billing documents since spring 2007 under the state Public Records Act.

"The issue is transparency and accountability," said Michael Stamp, attorney for the group. Stamp provided the spending estimate after reviewing billing documents, and said it would likely reach $445,000.

The group filed suit in May 2007 to obtain the outside-attorney billing records. But the county released documents with payment amounts blacked out.

County officials contended that premature public release of the records could cost the county more money by revealing its legal tactics and financial commitment in the cases. The county took the position that the billing records were exempt from public disclosure because they were part of pending litigation.

More here.

Nice Work By Washington Coalition...

OLYMPIA -- Washington state residents are on the verge of losing their constitutionally granted right to know what goes on in local governments, an open-government activist says.

Former state Rep. Toby Nixon, president of the Washington State Coalition for Open Government, said he hopes the Legislature will take action this year to protect that right.

"Without access to information about what the government is doing, we lose control," Nixon said. "Whoever has the most knowledge has the most power."

The nonprofit group hopes that lawmakers during this legislative session will restrict the use of attorney-client privilege, protect public access to government workers' birth dates and push for recording of closed government meetings.

More here.

Uh-oh...

From Rebecca Carr's excellent secrecy blog:

Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, oppose the administration moving funding for an ombudsman to oversee disputes over the Freedom of Information Act from the National Archives and Records Administration.

That was a centerpiece of the legislation sponsored by Cornyn and Leahy that President Bush signed into law last month after it overwhelmingly passed the House and Senate. The law called for funding the Office of Government Information Services at the National Archives so that it would provide independent oversight of requests for government records made under the act.

“Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of American’s FOIA requests,” Leahy said in a little-noticed floor speech on Wednesday.

Given its “abysmal record on FOIA compliance” over the past seven years, Leahy said he hoped the administration would reconsider its “unsound” decision on grounds it goes against what Congress intended.

In Wisconsin, Two Sets of Books?

From an editorial in the Milwaukee Journal-Sentinel:

"When it comes to limiting the public's access to records in Wisconsin, it's a bipartisan effort.

Last summer, Democratic state Reps. Marlin Schneider of Wisconsin Rapids and Fred Kessler of Milwaukee proposed shutting off access to the state's online court records to most members of the public. Only court officials, law enforcement personnel, attorneys and journalists would have had unlimited access to the Consolidated Court Automation Programs Web site.

This winter, it's Republican state Rep. Robin Vos of Racine and Democrat state Sen. Julie Lassa of Stevens Point who want to limit access to the Web site by removing certain cases from the electronic record. Their effort is just as well-intentioned as the effort last summer - and just as wrongheaded.

Companion proposals by Vos and Lassa would have state officials remove cases or charges involving a civil forfeiture or misdemeanor from the Web site within 90 days after being notified that the case or charge has been dismissed, the defendant has been found not guilty of all of the charges or the case or charge has been overturned on appeal and dismissed. In the case of felonies, the case or charge would be removed within 120 days after officials had been notified that one of the above had happened.

As Peter Fox of the Wisconsin Newspaper Association put it in an e-mail, the proposals are poor public policy. "For one thing, the WCCA site is intended to reflect the actual record of Wisconsin courts, not excerpts thereof," he wrote. "Essentially, this proposal would create two 'sets of books.' "

More here.

South Dakota reform effort update...

Several bills filed in the South Dakota Legislature seek to change state laws that determine which government documents are open to the public.

Senate Republican Leader Dave Knudson of Sioux Falls and House Republican Leader Larry Rhoden of Union Center filed identical versions of a proposal they have said will probably increase the number of records open to the public. SB186 and HB1280 also would set up a process for handling disputes over access to state and local government records.

Sen. Nancy Turbak Berry, D-Watertown, also filed a bill intended to open more records to public inspection. Her measure, SB189, includes provisions similar to the Republican bill, but it uses different language.

A task force headed by Attorney General Larry Long wrote proposals that would clarify which records are open and would set up a process to resolve disputes over records. Much of the language in the task force measures has been included in the Republican leaders' bills.

More here.

The Presidential Records Act Hold Just Keeps On...

This, from the National Security Archive, is simply maddening:

Senator Sessions Places Hold on Presidential Records Bill
January 23rd, 2008

In November 2001, President George W. Bush issued Executive Order 13233, which gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. “The Presidential Records Act Amendments of 2007″ (H.R. 1255) would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.

On January 22, 2008, Senate Majority Leader Harry Reid (D-NV) brought the “Presidential Records Act Amendments of 2007″ (H.R. 1255) to the floor under the Senate’s unanimous consent rule that allows non-controversial bills to be considered on an expedited basis. However, Senator Jeff Sessions (R-AL) became the latest Republican senator to publicly put a hold on the bill and blocked floor consideration.

Last September, Senator Jim Bunning (R-KY) blocked a vote in the Senate on the bill, preventing floor action throughout the fall. However, on December 18, 2007, without explanation, Senator Bunning suddenly lifted his hold. The next day, Senator Joseph Lieberman (ID-CT) requested that the bill be passed. However, an anonymous Senator placed a secret hold on the bill.

Since the White House has not rescinded its threat to veto the bill, it is reasonable to assume that Senator Sessions is holding up the bill at the behest of the Administration. Senator Sessions gave no explanation on the floor as to why he was blocking the consideration of the presidential records bill.

Read more here.

And in case you missed it, here is yours truly, mad as &^&# even before this latest outrage.

Denver Post: PLan to Hide Legislative Proposals Too Extreme

On the last day of 2007, President Bush, rarely praised for his administration's openness, signed a bipartisan bill designed to help citizens get more information about what their federal government is up to.

Now, we may see the unfortunate flip side in Colorado. A bill drafted by Rep. Rosemary Marshall, D-Denver, would keep more government work in the shadows.

She should shred her first draft.

"The scope of that [draft] bill is breathtaking," said Charles Davis, executive director of the National Freedom of Information Coalition and a journalism professor at the University of Missouri.

"Legislative records are pretty well protected in Colorado already. This, well, it's like that protection would extend forever," Davis said.

Today, draft bills in the Colorado legislature are not considered public information — the argument being that legislators need the ability to candidly discuss and refine their ideas before going public.

That premise is debatable. In Florida and Missouri, draft bills are not protected, and citizens can get hold of them to try to identify whose fingerprints are present — whether the insurance industry's or labor.

More here.

Wonder Why Missouri Wants to Keep Executioners Secret?

I'm beginning to understand the urgent need for secrecy here. As is so often the case, it is a convenient excuse for masking incompetence, corruption, heck, even criminal records...

Before a Missouri executioner could go to Indiana in 2001 to help federal authorities put mass killer Timothy McVeigh to death, he had to take care of one detail:

He needed permission from his probation officer to leave the state.

The request, by a licensed practical nurse from Farmington, set off alarms within the Missouri Division of Probation and Parole. At least one supervisor spoke out to an agency administrator.

"As I stated to you previously, it seems bizarre to me that we would knowingly allow an offender, on active supervision, to participate in the execution process at any level," she wrote.

Then again, bizarre is an understatement, as this graf shows:

In Missouri, a federal judge suspended the state's executions in 2006 after Doerhoff's testimony — from behind a screen to protect his identity — that he was dyslexic, did not record the actual amount of anesthetic delivered, sometimes used only half the suggested dose and gauged the depth of the anesthesia by watching facial expressions through a window.

But my favorite is the end:

The Missouri probation and parole administrator who confirmed Pinkley's request for travel obviously recognized the potential for controversy.

In one of the memos, she wrote, "It would be extremely problematic for David Pinkley and this department if the media got wind of this."

You think? Read the whole thing here, including the Post-Dispatch's wonderful explanation of why they are naming names...

S.D. Bill Would Create Mediation Program...

Gaining access to government records in South Dakota can be a hassle at times, and disputes over what is public and what is off-limits are not unusual.

Legislation designed to settle those arguments before they end up in court has been introduced by state Rep. Tim Rave, R-Baltic, and state Sen. Tom Dempster, R-Sioux Falls.

Rave said HB1246 would allow the state Office of Hearing Examiners to settle disputes over public records that could otherwise wind up in a stalemate.

"There has to be someplace to go when those disputes come up," Rave said. "At least the two parties can walk away with a resolution. It's either they walk away with what they wanted or at least somebody made a ruling on it. It would get rid of the ambiguity that we have now."

HB1246 would set up both informal and formal processes to request records from the state, cities, counties, school boards and townships. Records of the state court system and Public Utilities Commission would be exempt, however.

More here.

Draft Bills IN Colorado Not Secret Enough For Ya? Just Wait...

Rep. Rosemary Marshall, involved in a legal fight with a conservative news website over whether portions of a memo should be released to the public, is considering a bill to modify public-records law.

Under current law, drafts of proposed bills are considered "work product" and are not public records. Marshall said Friday that she is considering a bill to "clarify" that the protection also extends to when portions of a proposed bill are included in a memo or shared with an outside party.

"We need to have the opportunity to dialogue with appropriate stakeholders about public-policy changes," Marshall, D-Denver, said.

The issue strikes close to Marshall because she is in litigation with operators of Facethestate.com over just such a circumstance. Brad Jones, the site's managing editor, is seeking the release of a memo that contains excerpts from a bill Marshall considered last year to allow state workers to form employee-bargaining partnerships.

Marshall had sent the memo to a lawyer in California, who forwarded it to Colorado Gov. Bill Ritter, Jones said.

The bill wasn't introduced. Ritter subsequently signed a controversial executive order granting employees bargaining-partnership rights.

"This would help us find out what legislative leadership, as well as the governor's office, really wanted to do before they had to scale it back," Jones said.

Jones contends that the entire memo is a public document because Marshall shared it with someone outside the Capitol.

"She's basically saying if the contents of a draft bill end up anywhere in state government, even outside the legislature, that can't be looked at," Jones said. "That I think is a significant change in the law."

More here.

Feds Blame KC for Lost IRS Taxpayer Files...

Federal investigators blame city officials for the loss in 2006 of 26 IRS computer tapes containing taxpayer information.

In a heavily redacted report obtained by The Kansas City Star through a Freedom of Information Act request, the Treasury Department's inspector general for tax administration said the city failed to follow "proper safeguards for protecting federal tax return information."

The tapes were delivered to City Hall in August 2006 to help revenue officials make sure people living or working in Kansas City are paying the 1 percent city earnings tax.

City officials said they realized the tapes were missing in late 2006, touching off the investigation that began on Dec. 19, 2006, and lasted until Nov. 1, 2007. The tapes have never been found.

"The investigation revealed the city did not follow and was not following the proper safeguards for protecting federal tax return information," the inspectors wrote.

The information released to The Star and published in a story Saturday did not elaborate on the city's mistakes. Most of the information in the 42 pages provided to the paper was blacked out, and the agency said it wasn't handing over another 105 pages because that "could impede its law enforcement activities."

More here.

The Judicial Understatement of the Week...

A federal policy prohibiting death row inmates from conducting face-to-face interviews with reporters might have been enacted for political rather than safety reasons, the U.S. Court of Appeals in Indianapolis (7th Cir.) ruled on Tuesday.

The three-judge panel sent the case back to the trial court, which had upheld the Bureau of Prisons' (BOP) rule banning face-to-face interviews.

David Hammer, then a prisoner on death row, sued various Bureau of Prisons officials in 2001, after he was denied face-to-face interviews with the media. Between August and December 1999, Hammer conducted three in-person interviews at the prison he was housed at in Terre Haute, Ind. But, in 2000, he learned the prison wouldn't allow him to speak in-person to members of the press.

The new rule was put in place after fellow death row inmate Timothy McVeigh spoke about the Oklahoma City bombing with 60 Minutes in March 2000. In response to the interview, then-Attorney General John Ashcroft and former BOP Director Kathleen Hawk-Sawyer announced a blanket media policy banning all federal death row inmates from giving face-to-face interviews with reporters.

More here.

Redaction Policy in California Raises Eyebrows

Sign the on the line if you want the address.

This is the Gilroy Police Department's new policy when it comes to making public the residential address of people who are arrested. But not everyone can sign on the line.

Last week GPD stopped releasing the addresses of arrestees to the public, pointing to a part of the California Public Records Act that was amended in 1996 by the state legislature to make it so public agencies do not have to. Another part of the CPRA, though, states that public agencies must release the address to "an individual who is willing to declare under penalty of perjury and file a waiver that the (address) obtained is being used for scholarly, journalistic, political or governmental purposes," according to a letter written by GPD Records Supervisor David Boles.

This means The Dispatch must sign a waiver every morning to get the address of an arrestee along with that person's name, date of birth, the charge against the arrestee and where and when the alleged crime took place. If an eligible party refuses to sign the waiver, then it will not receive the arrestee's address.

More here.

The PA reform saga continues

Key architects of competing versions of the forthcoming state open records reform bill disagree on whether that bill would let the public read secret conditional funding-commitment letters sent out by Gov. Ed Rendell.

That debate is taking place even as Mr. Rendell said last week: "I have no problem if these become open records in a new law."

Asked if he would object to them becoming subject to the forthcoming open records law, Mr. Rendell said: "No not at all, you know, it's expenditure of funds."

But in the past four years, not even legislative leaders saw them.

One legislative leader, speaking on condition of anonymity, said: "We did not see the letters. When he writes any of these kinds of letters that commit taxpayer money, he should at least copy the four leaders and appropriations chairs, in the interest of transparency in government. It is also very troubling that he would write a confidential letter and tell the recipient not to say anything while budget negotiations are going on. That is an obvious attempt to mislead the legislature, and is certainly contrary to any kind of transparency."

More here.

A HUGE Victory in Texas...

A Texas appeals court ruled Thursday that state employees' birth dates are public and must be released, a decision hailed by open-government advocates.

The state comptroller's office sought to withhold date-of-birth information from The Dallas Morning News, citing concerns about possible identity theft. But the 3rd District Court of Appeals in Austin upheld a lower court ruling rejecting that argument and said the comptroller hadn't proved its claim.

"The speculative and unproven threat of identity theft is insufficient to exempt date-of-birth information from disclosure," the court said.

The comptroller's office said it was disappointed by the ruling and was considering an appeal to the Texas Supreme Court. "No private sector employer is required to release to the public its employees' date-of-birth information," spokesman R.J. DeSilva said, "and we believe government employees should have the same protection."

David Starr, vice president and deputy general counsel of Belo Corp., The News' parent company, said the outcome is an important open-records victory. "This ruling will help The News keep an eye on how state government spends taxpayer dollars and how public employees do their jobs," he said.

More here, including pithy quotes from yours truly.

FOIA as a College Football Reporting Tool

First, a booster used FOIA to trace calls from then-Arkansas coach Houston Nutt. Now the West Virginia media followed suit, and the results, well...

That's the million dollar question. The Charleston Daily Mail newspaper obtained phone records through the Freedom of Information Act for the time period between December first and December 18th.

On December 15th, Rodriguez made seven calls to Peterstown a place he called 112 times during November and December, often in succession.

On December 16th, he made another call to Peterstown before calling Boston, Toledo and Phoenix.

Numerous sources tell us that Rodriguez was not recruiting any football players in Peterstown.

On the night Rodriguez resigned from West Virginia Rodriguez contacted three high school prospects, meaning he used a WVU cell phone to recruit for Michigan.

More here.

Federal Judge on Overseas Prisoners: Lemme See Those Records

A federal judge today ordered the CIA and the Department of Defense (DoD) to provide him with documents related to the treatment of prisoners in U.S. custody overseas. Judge Alvin K. Hellerstein of the Southern District of New York ordered the government to make the documents available to him so he can determine for himself whether they should be made public pursuant to a Freedom of Information Act (FOIA) lawsuit brought by the American Civil Liberties Union and other organizations.

"Given the evidence of widespread and systemic abuse of prisoners, it is entirely appropriate for the judge to view these documents for himself instead of taking the government's word for why they should be kept secret," said Alexa Kolbi-Molinas, staff attorney with the ACLU. "The right of the American public to know whether its own government respects the laws against torture is central to democracy. The Freedom of Information Act was designed to disclose precisely this kind of information and we are hopeful that the documents will be made public."

More here.

AZ lawmaker: "transparency breeds accountability" in

In a refreshing reversal of the many bills we've seen this year that seek to close records ostensibly to "protect" us, at least a few Arizona lawmakers see the light:

State lawmakers are moving to make some child-welfare records, court proceedings and state employee personnel records open to the public in an attempt to shine light on the actions of Child Protective Services.

The proposals are part of a package of bills expected to be introduced soon by Reps. Jonathan Paton, R-Tucson, and Kirk Adams, R-Mesa, in the wake of legislative hearings this fall on the deaths of three children from Tucson whose parents had been investigated by CPS.

The underlying theme of the bills, which were unveiled at a legislative committee hearing Tuesday, is that "transparency will breed accountability," Adams said.

One bill would open up records in cases of a death or near-death of a child. A judge could decide not to open the files for certain reasons, such as harm to the child or siblings...

Another bill being drafted would affect all state employees by opening more personnel and disciplinary records to the public, mirroring the standards used by cities and counties in Arizona, Paton said.

More here.

South Dakota to join the reform party?

Governor Rounds says he wants to be careful about changing state laws that determine which state and local government records are open to the public.

Rounds says that before changes are made he wants to know what information is involved and what people might be hurt by its release. The Republican governor says he would prefer to specifically designate what would be open.

Democratic lawmakers on the other hand say they want to rewrite the law to presume that state and local government records would be open. They then would list the kinds of documents that would be kept confidential such as personal information and business secrets.

More here.

An Exemption Attempt Worth Watching

From Virginia comes the latest in exemptions. This passed in a couple of states last year, and while it can be OK, watch the details like a hawk!

At the request of the University of Virginia, two state lawmakers have introduced a bill that would allow the university to keep private the identities of donors who wish to stay anonymous.

The bill - sponsored by Sen. Edward Houck, R-Spotsylvania, and Del. Glenn Oder, R-Newport News - would grant Virginia’s higher education institutions an exemption under the Freedom of Information Act to withhold a vast amount of personal information about their donors.

UVa officials say they need to protect the privacy of donors. Open government advocates, on the other hand, point out that UVa is a public institution and argue that its finances must be transparent to ensure accountability.

More here.

Aloha!

The U.S. Department of the Interior continues to investigate the travel by hundreds of Navajo representatives to Hawaii last October, with federal officials in California now involved in the review.

Meanwhile, other branches of the federal government itself have failed to comply with the Freedom of Information law after confirming they received requests for data they already might have regarding the number of people sent or the source of funds used for the trips.

The Daily Times reported in its Nov. 3 edition that 362 people with ties to the Navajo Nation each paid the $400 preregistration cost to attend the 2007 National Indian Education Association conference in Honolulu. Most are believed to have attended, with many more registering on site. The combined price tag for the trip is believed to be as much as $1 million, based on the costs for those known to have attended.

More here.

An Interesting Look at E-Mail as a Public Record...

In Governing Magazine, featuring yours truly and a nice Missouri lead:

For several months last fall, the St. Louis media had a field day with Missouri Governor Matt Blunt's office for doing the equivalent of crumpling up important office correspondence and tossing it away. Employees weren't using a wastebasket, though. They were tossing out messages by clicking "delete" on their computers. Staff members insisted there was no written policy in their office on saving and deleting the e-mails. They said they routinely erased the

Most other state offices were quick to disassociate themselves from this approach. The attorney general, the secretary of state and the auditor all announced that, unlike the governor, they treated e-mails as public records and retained them accordingly. Finally, in November, Blunt put an end to the controversy by announcing his own stringent new policy. A "permanent" e-mail retention system would be created, and employees would no longer be able to make case-by-case decisions on what to save. The governor gave his Office of Administration the task of developing technical systems to permanently save every single state government e-mail. He didn't say how much that would cost or how much additional storage would be needed.

Missouri's is not the only government that has been stumbling over vague or non-existent e-mail policy. Millions of state and local employees in jurisdictions all over the country correspond by e-mail every day without giving much thought to what should happen to the product. They may come to regret that behavior. Not only are records, and history, being lost, but many government lawsuits now turn on what is buried in old e-mail messages. Government policy simply has not kept up with the evolving technology. "At the moment," according to Charles Davis, of the National Freedom of Information Coalition, "everyone is looking up and saying, 'Maybe we ought to be keeping this stuff.'" But few have come up with clear rules governing where and how to keep it.

Some elected leaders are still trying to hold the line against long-term storage, but generally they aren't succeeding. Last August, for example, Washington, D.C., Mayor Adrian Fenty issued an executive order directing employees to purge most e-mails after six months. Three months later, after resistance from the city council, he withdrew the order. The council felt six months wasn't long enough to protect critical information and provide evidence against misconduct. "With the punch of a button," one council member said, "many important, vital public records would have been lost."

More here.

Public Denied Info Under Mass. Bill...

If only our elected officials were as concerned with our right to know...as they are about protecting criminal records from those who have every reason to know about them...

People with criminal records would be able to more quickly shield that information from prospective employers under legislation filed Friday by Gov. Deval Patrick, who says the change will give them a better chance to become productive citizens.

Patrick's proposed overhaul of the state Criminal Offender Record Information or "CORI" system is aimed at giving people a second chance after they've served prison or probation terms, and even after being cleared of criminal charges.

"It improves their opportunity to get employment," said Kevin Burke, Patrick's secretary of public safety.

Currently, people convicted of felonies can seek to seal their criminal record after 15 years. Patrick's bill shortens the wait to 10 years, and shortens the wait on misdemeanor convictions from 10 to five years -- if the person stays out of trouble.

Misdemeanor violations of restraining orders would remain unchanged at 10 years, while sex offenders would never be eligible to seal records.

More here.

Iowa Wants an FOI Office...

A legislative committee studying changes to Iowa's open records and open meetings laws wants a new state executive branch agency to hear freedom of information complaints and levy civil penalties. Recent questions the openness of public records and public meetings surrounding things such as the University of Iowa presidential search, and a central Iowa job training agency salary scandal, prompted the committee.

Senator Mike Connolly, a Democrat from Dubuque, says the law needs to be updated. "If you're elected to do the public's business, whether it be on the school board or the city council or the county supervisors, even state government, there needs to be sunshine on the process. Taxpayer's money is involved here," Connolly says.

Connolly says its has been 25 years since lawmakers have reviewed Iowa law governing freedom of information, and says it won't be easy to make changes. "There are powerful interests inside and outside of government that have big concerns about this, and in the legislative process it's hard to broker all the interests and actually have an end product," Connolly says. Connolly says a wide variety of groups have an interest in the issue.

"On the media side, you have the Iowa Newspaper Association, Freedom of Information council, s, and the Iowa Civil Liberties Union," Connolly says, "On the government side, you've got the Iowa League of Cities, the Association of Counties, and the Schoolboard Association. At the state level, the governor's office is watching this very closely." Connolly says the new executive branch agency would hear complaints brought by citizens against any level of government which may be violating the state's freedom of information laws.

More here.

Update: Iowa lawmakers said they will recommend creating a new state board that would investigate complaints and fine government agencies or elected officials who violate open meetings laws.

Missouri E-Mail Flap Results in Lawsuit

The former deputy legal counsel to Gov. Matt Blunt sued the governor and four of his top aides Wednesday, alleging a wide-ranging conspiracy to cover up the administration’s activities.

The suit, filed in Jackson County Circuit Court, describes schemes within the governor’s office to destroy public documents, to evade the state Sunshine law by sending text messages on personal Blackberrys and to fire a long-time state employee for political reasons.

In addition to Republican Blunt, the suit names Ed Martin, Blunt’s former chief of staff who was fired last November; Henry Herschel, Blunt’s former general counsel who resigned in December; Richard Aubuchon, the state’s deputy commissioner of administration; and Rich Chrismer, Blunt’s deputy chief of staff and chief spokesman.

The suit was filed by Scott Eckersley, who was Blunt’s deputy legal counsel until last September.

Among the suit’s allegations:

* In early 2007, the state Labor and Industrial had issued an erroneous legal opinion that found that the ballot initiative boosting the state minimum wage did not apply to tipped employees. When Eckersley identified the state director of Labor and Industrial Relations as the person responsible for mistake, Martin replied that he could not be fired for political reasons.

Instead, they fired Cynthia Quetsch, the department’s general counsel and a 15-year employee, because she had worked under former Gov. Bob Holden, a Democrat, and because her husband worked for Attorney General Jay Nixon, who was expected to challenge Blunt for governor.

* In July 2007, Chrismer sent e-mails to the Department of Public Safety and the Highway Patrol, seeking to a way to blame Nixon for his handling of negotiations with Ameren Corp. about the investigation into the collapse of Ameren’s Taum Sauk reservoir in southeast Missouri.

Those e-mail messages later became the subject of a critical story in The Kansas City Star. That prompted Herschel to call a meeting of the administration’s top lawyers last August. Herschel suggested the departments should destroy e-mails to avoid turning them over to press or public.

At the time, Sunshine requests were pending and such deletion was equivalent to destroying evidence, the suit says.

Several lawyers at the meeting protested that e-mail was a public record and was preserved on back-up tapes even if deleted from a computer. But Herschel was undeterred and closed meeting with an order to delete emails and deny Sunshine requests.

Martin then instructed the governor’s office to delete e-mail in inbox and trash files “to ensure they did not have to be turned over to the press or the public in response to Sunshine requests.”

The governor’s staff began discussing the benefit of sending sensitive or potentially damaging communications via Blackberry text message in the belief that such messages were not retained and would not have to be turned over to the press or public.

More here.

More on Foster Care Records in Ohio...

Both a newspaper and a large state agency say they want to protect foster children from harm, but they're at odds about how to do so.

The Cincinnati Enquirer wants the names of all licensed foster parents in Ohio so that it can check them against criminal and other databases to see whether any offenders slipped through the cracks.

The Ohio Department of Job and Family Services refuses to release the names, saying that revealing foster parents' identities would make it easier for people to commit crimes against them and foster children.

Both sides presented their cases to the Ohio Supreme Court yesterday. While arguing points of law -- including a 2000 Supreme Court decision that declared a database of municipal-park-facility users not to be a public record -- the newspaper and state agency both tried to claim moral high ground.

"This case is about protecting vulnerable children from people and also about protecting the people who have agreed to take those children into their homes," said Henry Appel, the assistant attorney general who represented Job and Family Services. "It is good sense to protect vulnerable children from dangerous people."

The Enquirer's attorney, John Greiner, said that's exactly what the newspaper is trying to do. He said the newspaper wants information about licensed foster homes to review their safety records and the general suitability of foster parents. The newspaper is not seeking the names of the children, he said.

More here.

OOGA!

From the start of their rally here Tuesday, a small group pushing to open the General Assembly to more public scrutiny made sure they were both seen and heard.

Legislators, staffers, lobbyists, the media and the public -- all packed into Legislative Hall for the opening of the second half of the 144th General Assembly -- couldn't miss the protesters' fluorescent, lime-green T-shirts and matching buttons. They sported the message "Open Our General Assembly -- OOGA! OOGA! OOGA!"

Specifically, Delawareans For Open Government want legislators to pass Senate Bill 4, which would end the General Assembly's exemption from the state's Freedom of Information Act.

The only protester without a green shirt -- any shirt, actually -- was Jason Scott of Middletown.

Before coming inside, Scott took advantage of the unseasonably warm day by letting other protesters sign their names and write sentiments of support on his chest and back. Because the General Assembly isn't a public body, Scott figured he'd become his own "public body." Get it?

"It's an absurd protest, but it's also an absurd notion that the General Assembly doesn't consider itself a public body," Scott said.

More here.

Because We All Know A Transparent Search is Such a Bad Thing...

UND Presidential Search Committee members Monday discussed drafting a letter protesting North Dakota's open records and open meeting laws, which mandates the committee's work must be done in public view.

At committee members' request, Chairman Paul LeBel, dean of the UND law school, said he will draft a letter to the State Board of Higher Education suggesting it petition the state Legislature to weaken those laws, which require immediate disclosure of applicants' names and full media access to search committee meetings.

More here.

Interesting Foster Care Case in Ohio...

Is this case about protecting children from dangerous people, or about protecting the foster care system from scrutiny? I'm asking...

Attorneys argued before the Ohio Supreme Court Tuesday whether the names and addresses of foster care parents should be public record.

John C. Greiner, a Cincinnati lawyer representing the Enquirer, said, “We are not asking for the names of any children.”

Enquirer reporter Gregory Korte made a public records request shortly after the August 2006 death of 3-year-old Marcus Fiesel, seeking an electronic database of all foster homes in Ohio.

Marcus died after his foster parents left him tied up in a closet while they took a weekend trip to Kentucky. Liz and David Carroll Jr. were later convicted in the boy’s murder.

The Enquirer reported in March that Hamilton County court officials discovered 27 foster parents had arrest records.

Greiner said the Ohio Department of Job and Family Services made a policy decision – not legal decision – to withhold foster license records, effectively daring the Enquirer to file a lawsuit.

He said the newspaper never sought the names of foster children, so would not have placed them in danger.

But Assistant Attorney General Henry G. Appel, in defense of the state, said, “This case is about protecting vulnerable children against dangerous people.”

More here.

Sunshine Week Programming Available!

OpenTheGovernment.org is proud to announce that registration is now open for our 2008 Sunshine Week event, “Government Secrecy: Censoring Your Right to Know,” on Wednesday, March 19, 2008, 1-2:30 PM (EDT). Our program will be available via webcast for free, and as a satellite downlink for a fee.

Visit our website at http://www.openthegovernment.org and follow the link on the front page, or go directly to our registration page at http://www.openthegovernment.org/article/subarchive/109

We request that both viewers of the webcast and viewers of the satellite downlink fill out our registration form so that we can provide further information and technical support, as necessary. Also, if you plan to host, and/or would like to assist with, a local event this year, please add yourself to our new listserv for our event by sending a message to subscribe-otg_sw2008@list2.ga3.org.

Please let me know if you have any questions or comments. We look forward to working with you to make this a success.

Thank you,

Chris

Chris Green
Program Associate
OpenTheGovernment.org
www.openthegovernment.org
202.332.6736 (OPEN)

Federal Magistrate Tells White House to Cough Up E-Mails...

A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.

The order by U.S. Magistrate Judge John Facciola comes amid an effort by the White House to scuttle two lawsuits that could force the Executive Office of the President to recover any e-mail that has disappeared from computer servers where electronic documents are automatically archived.

Two federal laws require the White House to preserve all records including e-mail.

Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.

The time period covers the Valerie Plame affair in which at least three presidential aides were found to have leaked Plame's CIA identity to the news media.

"Do the back-ups contain the e-mails said to be missing?" Facciola asked.

In a four-page order, Facciola said he needs to know "if the missing e-mails are not on those back-ups."

Facciola noted the importance of acting quickly since e-mails that might be retrievable from individual computer workstations in the White House "are increasingly likely to be deleted or overwritten with the passage of time."

White House spokesman Tony Fratto declined comment while reviewing the magistrate's order. In the past, the White House has said there could have been some e-mails that were not automatically archived because of a technical issue.

More here.

Secretive DA Protecting the Hawkeyes?

An interesting little affair in Iowa City, where a prosecutor has placed what is in effect a gag order...on the entire University of Iowa campus!

Johnson County attorney Janet Lyness has taken steps to keep secret public records and court documents that would provide information about an investigation into a reported sexual assault on the University of Iowa campus.

Lyness told The Des Moines Register that she has instructed U of I officials not to respond to a public-records request for copies of subpoenas served on the university related to the sexual assault investigation that involves members of the Hawkeye football team.

Lyness also acknowledged to the Register that there is no case law to support what effectively amounts to a gag order imposed on administrators, faculty and staff at the 30,000-student university, but she said she is treating her investigation "like grand-jury proceedings."

Two open-records advocates question her actions, and one Iowa newspaper has sued the U of I over records that apparently fall under Lyness' gag order.

The public records in dispute:

• The Register filed a request Nov. 16 seeking copies of subpoenas served on the university related to the alleged sexual assault, which reportedly took place Oct. 14 but wasn't reported to any law enforcement agency until Nov. 7.

State law requires public officials to provide a response to a request for public records within 20 calendar days, meaning the university needed to provide records or outline a lawful exception by Dec. 6.

But the school has refused to respond in writing to the request, and U of I Director of University Relations Steve Parrott, who typically provides the public with such information, declined to provide an explanation for the failure to provide a response.

More here.

Meet Tennessee's New Ombudsman...

Welcome to Tennessee's new access guru, Ann Butterworth, to the world of FOI...

The state’s new open-records ombudsman office has a mission to help Tennesseans obtain local government records, but the staff will be relying on the power of persuasion if local officials balk.

The new director, Ann Butterworth, and open-records specialist Elisha Hodge haven’t been given authority to enforce the state law that requires most records to be available to the public. They expect, though, that officials who try to withhold records will relent once the law is explained to them.

“We do not intend to just leave it, but I believe we’ll be able to work with them to come to a mutual agreement,” Butterworth said. “If we don’t, then I don’t know, but our goal is to not come to that situation.”

The Public Records Act says all state, county and municipal records are to be available for inspection by any Tennessee citizen — unless the record is specifically exempt. There are hundreds such exemptions in the law, such as medical records, sensitive military documents and investigative records of the Tennessee Bureau of Investigation.

Gov. Phil Bredesen proposed the ombudsman office to help Tennesseans navigate the complex open-records law.

The Legislature approved Bredesen’s budget proposal to create the ombudsman post in the state comptroller’s office, but state law wasn’t changed to give the ombudsman enforcement authority.

More here.

A Great Idea: Grade the Public Notices!

My buddy Joel Campbell out in Utah is involved in a great new project: grading the notice given under the state's open meetings law by local governments. This is a wonderful idea, and one that could easily be reproduced out there (hint, hint)...

A snippet:

When controversy hits in Utah Valley, municipal leaders often hear a singular message from affected residents -- we were not given important information when we needed it.

Razing ancient cedars or building a Wal-Mart feet from homes in Cedar Hills, expanding a sewer lagoon or approving huge housing developments in Santaquin, proposing itinerate housing in Payson, looking to quadruple impact fees or OK a gravel pit in Saratoga Springs, building a freeway in Lehi or a charter school on a residential street in Alpine, local residents have repeatedly expressed frustration with city employees and elected leaders who are supposed to protect their interests.

Because residents in cities across Utah Valley have decried for years the way cities communicate information that affects their lives, the Daily Herald recently collected -- or in some cases, attempted to collect -- meeting agendas and asked two experts to judge them, assigning each a letter grade based on how well cities had communicated to the public the business of the community.

To residents, the consequences of local decisions are real, and sometimes devastating. Eagle Mountain officials admitted recently that had they acted earlier, it would not have been necessary to condemn the front yards of four residents to build a 90-foot-tall power line. But that was little comfort to residents who wept in protest, or to Cedar Hills homeowners who will find themselves living feet from a Wal-Mart when construction begins in the spring, all of whom told city leaders they were not given information about the projects early enough.

Public information on the activities of planning commissions and city councils varies widely across Utah Valley. Some cities provide agendas with extremely minimal information, stating only that "recreation" or undefined jargon terms such as "CDBG" will be discussed, as a recent agenda in Goshen stated, or simply "airport loan" or "center for the arts" listed on a recent Provo agenda. Such opaqueness makes it difficult for residents to know not only how elected officials are spending taxpayer money, but also how city actions may affect residents.

Other cities are much more transparent. Eagle Mountain and Orem both regularly provide agendas reaching 10 pages or more, containing detailed explanations making it easier for residents to know at a glance where money is being spent and on-the-ground consequences of city actions. Most, if not all, cities provide extremely detailed packets of information -- sometimes numbering 100 pages or more -- regarding the agendas to their city leaders, but have sometimes charged the public and media fees to get the same information. Other cities post these packets on their Web sites for free public access.

More here.

Welcoming 2008 With a Bang!

CRAWFORD, Texas - President Bush on Monday signed a bill aimed at giving the public and the media greater access to information about what the government is doing. The new law toughens the Freedom of Information Act, the first such makeover to the signature public-access law in a decade. It amounts to a congressional pushback against the Bush administration's movement to greater secrecy since the terrorist attacks of 2001.

The legislation creates a system for the media and public to track the status of their FOIA requests. It establishes a hot line service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

The law also restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm.

Agencies would be required to meet a 20-day deadline for responding to FOIA requests. Nonproprietary information held by government contractors also would be subject to the law.

More here, including one error: the final version of the bill did NOT reverse the Ashcroft memo...

Now Here is a New Angle: An FOI Request for Video Games!

A national crusader against violent video game is suing Omaha's police chief in connection with the Von Maur shootings.Attorney Jack Thompson said he wants to find out whether Robert Hawkins, 19, played any violent video games.Hawkins shot eight people to death, then killed himself at Von Maur on Dec. 5.

Within hours after the Westroads Mall shooting, police searched Hawkins' residence and seized computer equipment, including a laptop, two computer towers and a hard drive, search warrants show.Thompson, who spoke to KETV NewsWatch 7 by phone from Florida, said he wants to know what kind of video games are on the seized equipment."The public has a need to know, has a right to know, what's on his computer hard drive," Thompson said.

More here.

Yale Cops Subject to State FOI, Commission Says

If Yale police can make arrests and testify in court — invoking the same powers as a regular police agency — they should also be subject to open records laws, the head of the state Freedom of Information Commission ruled this week.

Yale University has long kept crime reports and other records held by its police department secret, claiming that its private police force is exempt from public oversight.

Janet Perrotti, a New Haven public defender, challenged that policy after two Yale cops arrested her client, a black teenager, for riding his bike on a city sidewalk this past spring.

More here.

Illinois Ombuds: Open Those Warrants!

Search warrants are public records, Illinois Attorney General Lisa Madigan says.

In a written opinion issued Monday, Madigan said the state Freedom of Information Act, which contains dozens of reasons why government information can be kept secret, does not apply to court records.

Rather, she said, the records are open under the Clerk of Courts Act, which says virtually all court documents are public.

“There is no statutory or other authority for a circuit clerk to unilaterally seal or impound files containing complaints for search warrants, associated affidavits, and the search warrants themselves,” Madigan wrote.

More here.

Washington Supremes Reaffirm Attorney-Client Exemption

A sharply divided state Supreme Court reaffirmed attorney-client privilege exemptions from the state's Public Records Act, and said government agencies can challenge records requests in court before releasing any information.

In a 5-4 ruling published Thursday, the high court said documents relating to a child's peanut-allergy death while on a school field trip could be withheld from The Spokesman-Review newspaper of Spokane because of exemptions for attorney-client privilege and attorney work product.

"We conclude that the vast majority of the documents at issue here are protected from disclosure because they are handwritten notes or memoranda about witness interviews created by the legal team, making them protected work product," Justice Bobbe Bridge wrote.

The ruling also found that state or local government agencies can seek a judgment in superior court over whether a particular record is subject to disclosure.

"It's not a good day for public records in the state of Washington," said Duane Swinton, the attorney who represented the newspaper in the case.

The newspaper sought witness accounts of events leading to the death of Nathan Walters, a Logan Elementary third-grader who died on a school field trip in 2001.

More here.

A New E-Mail Flap, This Time in Cali

The issue seems innocuous on its outside.

Tracy Vice Mayor Suzanne Tucker from her home computer sent e-mails regarding a public forum to officials at Lawrence Livermore National Laboratory, who were jockeying to build a federal infectious-disease research facility near Tracy.

In the end, the Tracy City Council voted to oppose the lab's bid, which the lab later lost to other candidates.

But one issue remains unsettled, one some say could have profound implications on the workings of government and public access: When does a public official become a private person?

Attorneys for the Tracy Press, who lost a legal battle for those e-mails earlier this year in San Joaquin County Superior Court, continue to seek an answer to that question.

Their case is now in the hands of the California Third District Court of Appeal, which could rule any day.

The implications go beyond media access, said Cheri Matthews, editor of the Tracy Press.

"This is a huge issue. It is more than a newspaper issue - it is a public issue," she said.

In e-mails to lab officials last year, Tucker sought to rework the framework of a subcommittee's hearing on the research facility, which she assumed would easily be dominated by opponents.

The city maintains Tucker acted as a private citizen when she sent those e-mails, and denied the newspaper access to them.

A loss in the court of appeal could greatly increase the chances public officials will influence or manipulate government affairs and hide it from the public, said Mark Connolly, attorney for the Tracy Press.

More here.

ACLU Tennessee Seeks Info on Dress Codes

The American Civil Liberties Union of Middle Tennessee (ACLU-TN) should soon receive the information it has requested to monitor Metro Nashville Public Schools’ standard school attire policy, according to an attorney with the Metro legal department.

The information request was received by Metro Nashville Public Schools Oct. 15, and ACLU-TN requested a response within 30 days.

Starting this school year, all Metro students are required to wear “standard school attire” — a dress code that includes navy blue, black or khaki slacks, shorts or skirts and white or navy blue shirts with short or long sleeves and a collar. Each school may also select up to four additional colors for shirts.

Students have the right to opt out of standard school attire for medical or religious reasons, and ACLU-TN is working to monitor how the district processes those opt-out requests.

On Oct. 12, ACLU-TN submitted a Freedom of Information Act (FOIA) request to Director of Schools Pedro Garcia about attempts to secure exemptions from the standard school attire (SSA) policy. ACLU-TN asked to receive the information within 30 days of the request and followed up several times by phone, Weinberg said, but received no response until last week.

More here.

The Sheriff Gets Fined for FOI violations...

A heartwarming tale for the holidays, in which the lawman runs afoul of the Sunshine Law...you do the crime, you pay the fine.

Madison County (Va.) Sheriff Erik J. Weaver must pay a $250 fine and the plaintiff’s court fees for willfully violating the state’s Freedom of Information Act, a judge ruled Tuesday in Madison County General District Court.

Experts are calling it a potentially precedent-setting case regarding how public officials are punished for failing to comply with open records requests.

Leigh Purdum, a former office employee under Weaver, brought suit when the sheriff refused to identify the people he had appointed to a newly formed citizens advisory board.

Purdum also sought other information about the board, including its meeting dates, the criteria for choosing members, topics of discussion, goals and objectives, and copies of previous minutes.

After Tuesday’s ruling from Judge Robert H. Downer Jr., specially appointed from Albemarle County, Weaver produced the names of the 13 board members.

Maria J.K. Everett, executive director of the state-run Virginia Freedom of Information Advisory Council, believes this is the first time a judge in district court has ruled an elected official willfully violated Virginia FOIA laws.

Everett, who has served in her position since the office was created in July 2000, called the ruling “pretty significant.”

Jennifer Perkins, executive director of the Warrenton-based Virginia Coalition for Open Government, said it’s “a huge step in the right direction.” She said similar cases have always resulted in no monetary punishment.

“It’s a statement,” Perkins said. “The thing we’ve been really frustrated with is (judges’) reluctance to find willful violations when it’s clear to everyone else. … What’s great in this case is that you actually got the punishment.”

More here.

The FBI, Arguing With Itself

It's somewhat heartening to know that there were pretty heated discussions going on between FBI types over whether a court order was needed here...but then again, it's deeply troubling that this needs an argument. Check out the original story here, complete with PDF links to the original FBI e-mails.

By now it's well known that FBI agents can't always be troubled to get a court order before going after a surveillance target's telephone and internet records. But newly released FBI documents show that aggressive surveillance tactics have even caused friction within the bureau.

"We deal mostly with the fugitive squad here, and, like in many other offices, these guys have a reputation for cutting corners," a surveillance specialist at the FBI's Minneapolis field office complained in an internal e-mail last year. "I'm not bashing them; it's the way they do business. Getting a court order is the absolute last step, if they have to.

"Before I had a blowup with a particular agent ... we were constantly asked to call our contacts at service providers to see if we could get various information without having to get a court order," the message continues. "This gets old, believe me. ... Doing this once or twice to help out turns into SOP (standard operating procedure) ... It's expected, and you're criticized as a tech agent if you refuse to do this later on."

The revelation is the second this year showing that FBI employees bypassed court order requirements for phone records. In July, the FBI and the Justice Department Inspector General revealed the existence of a joint investigation into an FBI counter-terrorism office, after an audit found that the Communications Analysis Unit sent more than 700 fake emergency letters to phone companies seeking call records. An Inspector General spokeswoman declined to provide the status of that investigation, citing agency policy...

Videotaping a Public Meeting: Yea or Nea?

A Vienna, Virginia, resident may pursue legal action against Fairfax County Public Schools after being told he had to turn off his video camera or leave Westfield High School during a meeting on the western county high school boundary study Dec. 3.

Bruce Bennett had started to record one of 50 small group discussions taking place in classrooms at the event when a police officer summoned him to the hall and asked him to put his video camera away.

When Bennett refused to stop filming, school officials and police officers escorted him to the entrance and asked him to leave the building, he said.

"They publicly humiliated me when they removed me from [the] room especially in light of the fact that I was just doing what I have a right to do," said Bennett, whose neighborhood would be affected under some redistricting proposals...

Bennett he intends to try and film the third boundary study meeting Dec. 18. He was able to film the first boundary meeting on Nov. 26 in its entirety, he said.

If he informs the school system ahead of time, officials would be happy to find Bennett a room with people who are not uncomfortable around the camera, said Regnier.

It can often be a better tactical move to give officials a heads up when you will want to record or videotape a meeting, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

More here.

Editor First Winner of GA Coalition's FOI Award

Veteran Ledger-Enquirer reporter and editor Jim Houston is one of two recipients of the Charles L. Weltner Freedom of Information Award for 2007, the Georgia First Amendment Foundation announced Tuesday.

Houston, who retired from the newspaper in August, was lauded for his commitment to open records, use of open records laws during his reporting and mentoring of young reporters about the Freedom of Information Act. Robert Rothman, banquet chairman, called recipients Houston and former Georgia Attorney General Michael Bowers champions of the public's right to know.

"It's the highest honor I could get," Houston said. "I had no concept I would win that award."

Houston's name was launched onto the state stage three years into his career in the 1970s, when he attempted to gain records from Muscogee County Jail. The records were denied, and the newspaper appealed to the Georgia Supreme Court, which ruled that public records are "all documents, papers and records prepared and maintained in the course of the operation of a public office." The definition is still used today.

The sheriff was ordered to hand over the documents, though the city attorney claimed he had lost them. The newspaper never received the information.

More here.

Congress Passes FOIA Reforms...NFOIC Celebrates

Yesterday's HUGE vote was a watershed event for the FOI community in the United States -- my thanks to all of you who wrote and called and spurred your members into action!

Our release:

The passage of important bipartisan reforms to the Freedom of Information Act (FOIA) is a victory for citizens seeking access to information about their government. The National Freedom of Information Coalition – comprised of representatives of 48 state and regional freedom of information groups – applauds work of all who worked to make these critical reforms a reality.

The NFOIC joined dozens of non-profits to spearhead the reform, and its member FOI coalitions played a vital role, working at the grass-roots level across the country to advocate for changes to the federal Freedom of Information Act.

“This is a victory for the American people, and a welcome example of bipartisan compromise that reconciled differences between the House and Senate bills,” said Charles N. Davis, executive director of the National Freedom of Information Coalition and an associate professor at the University of Missouri School of Journalism. “It’s important for us all to remember whom the federal Freedom of Information Act, and indeed all open government laws, were created for.”

If signed by President Bush, The new OPEN Government Act would:

• Penalize agencies, for the first time, if they missed the 20-day statutory deadline for responding to a FOIA request. The penalty for delays would be a waiver of the processing fee.
• Create an Ombudsman to assist FOIA requestors and provide an alternative to costly and lengthy litigation.
• Clarify that FOIA applies to government records held by outside private contractors;
• Establish a FOIA hotline service for all federal agencies and electronic tracking of all requests.
• Reestablish the right of requesters to recover legal fees if they file suit and “substantially prevail,” without the case going to final court judgment.
• Improve the reporting requirements to create greater performance accountability.

“This bipartisan legislation is an early Christmas present for the citizenry, as it would greatly speed up the process that thousands of taxpaying Americans have invested in and use daily,” Davis said.

Senator Patrick Leahy (D-VT), Sen. John Cornyn (R-TX), House Oversight and Government Reform Chairman Henry Waxman (D-CA), Rep. Tom Davis (R-VA), Rep. William Lacy Clay (D-MO), Rep. Todd Platts (R-PA) and Rep. Lamar Smith (R-TX) led the effort to pass this legislation. Senator Jon Kyl (R-AZ) also played a key role in getting this legislation over the finish line.

NFOIC members contacted several key players in the reform movement and provided sign-on letters for coalition members to join. The national headquarters worked with an array of non-profit advocacy groups on the issue and wrote repeatedly to leaders in Congress, calling for change.

“The people spoke, and this time Congress listened,” Davis said. “Freedom of information is an elemental component of a representative democracy, enabling citizens to serve as civic watchdogs.”

The National Freedom of Information, headquartered at the University of Missouri, is funded through a grant from the John S. and James L. Knight Foundation.

Established in 1950, the John S. and James L. Knight foundation makes national grants in journalism, education and arts and culture. Its fourth program, community initiatives, is concentrated in 26 communities where the Knight brothers published newspapers, but the foundation is wholly separate from and independent of those newspapers.

Hillary Sits On Records...

The National Archives is withholding from the public about 2,600 pages of records at President Clinton's direction, despite a public assurance by one of his top aides last month that Mr. Clinton "has not blocked the release of a single document."

The 2,600 pages, stored at Mr. Clinton's library in Arkansas, were deemed to contain "confidential advice" and, therefore, "closed" under the Presidential Records Act, an Archives spokeswoman, Susan Cooper, told The New York Sun yesterday.

An official who oversees the presidential libraries operated by the federal government, Sharon Fawcett, said in a recent interview that the records were withheld in accordance with a letter Mr. Clinton wrote in 1994 exercising his right to hold back certain types of files and another letter in 2002 about narrowing the scope of his earlier instructions. Asked by National Journal whether Mr. Clinton had "total control" over the closure of records under the confidential-advice provisions of the law, Ms. Fawcett said he did.

More here.

Hillary Sits On Records...

The National Archives is withholding from the public about 2,600 pages of records at President Clinton's direction, despite a public assurance by one of his top aides last month that Mr. Clinton "has not blocked the release of a single document."

The 2,600 pages, stored at Mr. Clinton's library in Arkansas, were deemed to contain "confidential advice" and, therefore, "closed" under the Presidential Records Act, an Archives spokeswoman, Susan Cooper, told The New York Sun yesterday.

An official who oversees the presidential libraries operated by the federal government, Sharon Fawcett, said in a recent interview that the records were withheld in accordance with a letter Mr. Clinton wrote in 1994 exercising his right to hold back certain types of files and another letter in 2002 about narrowing the scope of his earlier instructions. Asked by National Journal whether Mr. Clinton had "total control" over the closure of records under the confidential-advice provisions of the law, Ms. Fawcett said he did.

More here.