Implementation of FOIA falls short

The cover story in the Summer 2009 issue of Administrative & Regulatory Law News by the American Bar Association focuses on the poor state of FOIA. Author Daniel Metcalfe details how the 2007 FOIA amendments and Obama's FOIA policy, however promising they might have seemed, are falling short when it comes to implementation. Individual agencies have not changed their FOIA procedures to include the 2007 changes. For example, the Justice Department's FOIA Reference Guide hasn't been updated since May 2006. It's been particularly confusing for requesters who want records that are held by government contractors. Because of outdated regulations, the requesters don't know whether to send the request to the government agency or directly to the contractor. Metcalfe believes the Holder FOIA Memorandum could have been stronger if it hadn't been put together so quickly. The memorandum does not mention the importance of all agencies updating their FOIA regulations or the long backlogs of pending FOIA requests. Also, Metcalfe writes, "the Holder FOIA Memorandum by its terms applies itself to pending litigation only if a half-dozen lawyerly hedges are first satisfied."

The past eighteen months have been an exceptionally promising time for the Freedom of Information Act and for those who look to it to shine a bright light on the world. First Congress amended the Act with a package of amendments designed entirely to aid FOIA requesters, improve agency FOIA performance, and foster greater disclosure. Then a president who has declared that he wants to run “the most open administration in history” was elected to replace a president whose administration seemingly “never met a secret it didn’t like.” See, e.g., The Nature of Government Secrecy, 26 Gov’t Info. Quarterly 305, 307 (2009).

But as often is said of expected improvements in such areas of administrative law, “the devil’s in the details.” And when it comes to the FOIA, those devilish details are most often found in the quality of the implementation of new provisions and policies, on a governmentwide basis, and the timeliness, comprehensiveness, and effectiveness with which that is achieved. That is where the brightness of promised sunshine can readily fade if a new presidential administration is not pragmatic and careful. In this case, the badly incomplete implementation of the FOIA amendments made by Congress in 2007 foreshadowed no less.

More here.

Judge temporarily halts release school employees home addresses

After Pennsylvania State Education Association's petition to exempt school district employees' home addresses from public records, a state appellate court judge issued a temporary halt and is expected to schedule a hearing, the AP reported. The state's revised Right-to-Know Law exempts the home addresses of judges, law enforcement officers and minors from public records. The state's largest teachers' union wants the same treatment for school employees.

A state appellate court judge has ordered a temporary halt to releasing school district employees' home addresses listed on records requests made under Pennsylvania's new Right-to-Know Law.

The order issued Tuesday by Commonwealth Court Senior Judge Rochelle Friedman was made in response to a petition brought late last week by the state's largest teachers' union.

Friedman was expected to schedule a hearing on the Pennsylvania State Education Association's request to permanently end the release of school employees' home addresses.

More here.

Judge halts release of road builder's records

A Franklin County Circuit judge in Kentucky halted the release of statements that Leonard Lawson, a prominent road builder, made to investigators in a 1983 antitrust case, the AP reported. Lawson is now facing unrelated federal charges of conspiring to steer $130 million in state road contracts to his companies. The Courier-Journal of Louisville, the Lexington Herald-Leader and The AP asked for the 1983 statements, but Lawson asked for the records to be kept from the public so that they wouldn't hurt his chances of getting a fair trial.

A judge issued a temporary injunction Wednesday to halt the release of statements a prominent Kentucky road builder made to investigators years ago.

Franklin County Circuit Judge Thomas D. Wingate cited the privacy interests of the road builder, Leonard Lawson of Lexington, in his ruling. Wingate said if the statements were made public, Lawson could face irreparable harm.

Not releasing them would preserve the status quo, Wingate said in a 16-page ruling.

More here.

Court decides to rehear Texas open meetings law case

The U.S. Court of Appeals in New Orleans will hear a case on the constitutionality of the Texas Open Meetings Act that was previously decided by a three-judge court panel, The Reporters Committee for Freedom of the Press reported. The ruling in Rangra v. Brown essentially said that the open meetings law was in conflict with elected officials' freedom of speech because the law made it a crime for a quorum of them to discuss government business outside of public meetings. Several friend-of-the-court briefs have been filed on behalf of the Texas Attorney General's office, which asked for the reconsideration.

A federal appellate court rightly decided this week to re-hear a case on the constitutionality of the Texas Open Meetings Act.

The U.S. Court of Appeals in New Orleans (5th Cir.) took the unusual and laudable step of granting a petition for en banc review, meaning the full court will now consider a case that a three-judge panel of the court previously decided.

The Texas Attorney General’s office asked the court to reconsider its previous ruling in Rangra v. Brown, which said the Open Meetings Act infringed on elected officials' free speech rights by making it a crime for a quorum of them to discuss government business outside of a public meeting.

More here.

Judge temporarily blocks names of Ref. 71 signers

A federal judge issued a temporary restraining order in response to a Protect Washington Families request to keep the names and addresses of those who signed Referendum 71 from the public, the Seattle Times reported. It will remain until the hearing set for Sept. 3. The Secretary of State Office admitted that it has no statutory authority to withhold the names but didn't pan to contest the TRO effort. However, U.S. District Judge Benjamin H. Settle wrote that the group demonstrated "a reasonable likelihood of irreparable harm if the names are released."

Protect Marriage Washington submitted 138,500 signatures to get Referendum 71, which would repel a law giving gay couples marriage-like benefits, onto the November ballot.

A federal judge in Tacoma has temporarily blocked release of the names and addresses of those who signed Referendum 71, which would repeal a law giving gay couples new marriage-like benefits.

U.S. District Judge Benjamin H. Settle this afternoon granted a temporary restraining order requested by Protect Washington Families to stop the Secretary of State's Office from making the signers' names public.

The TRO will remain in place until a hearing set for Sept. 3.

More here.

Hawaii City Council must cancel closed-door actions

A circuit judge issued a temporary restraining order that essentially forces the Hawaii County Council to cancel a council reorganization plan that it discussed in a private meeting, the AP reported. The council will meet on Aug. 4 to rehear all measures. This order was prompted by a lawsuit filed by West Hawaii Today that alleges that the council violated the Sunshine Law by discussing the plan in private.

Members of the Hawaii County Council violated the state’s open-government law by privately discussing a council reorganization plan, a state judge said.

Circuit Judge Ronald Ibarra on July 23 issued a temporary restraining order, forbidding the council from doing business. But he delayed the start of the TRO until Aug. 5 to give the council time to rectify the situation.

The council has scheduled a special meeting for Aug. 4 to cancel the reorganization. It also plans to rehear all measures it considered after the June 16 changes went into effect.

More here.

Wyo. open meetings/records woes

Shawn Whitman, chief of staff for Wyoming Sen. John Barrasso, said closing a meeting was "an unfortunate misunderstanding on our part of the state statute," the AP reported. A Barrasso staffer told reporters that the meeting at a restaurant was private though it was being attended by a quorum of Fremont County commissioners.

Closing a meeting to the public between staffers for Sen. John Barrasso and Congresswoman Cynthia Lummis and a quorum of Fremont Count commissioners was a mistake. That’s was Barrasso’s chief of staff Shawn Whitman said Wednesday in response to an allegation by open-government advocates that the press was illegally barred from the gathering.

More here.

Update on Wind River Indian Reservation case:

Fremont County Coroner Ed McAuslan said he's bound by federal law to not release details on the deaths of three girls on the Wind River Indian Reservation, KVOW/KTAK reported. Wyoming Sen. Cale Case has said he's drafting legislation to make coroner records open, but McAuslan said that won't affect this case, which is governed by federal law. McAuslan said he will not violate laws and face a fine and/or jail time for releasing information.

Fremont County Coroner Ed McAuslan said he will not risk jail time by divulging information about a federal case involving the deaths of three girls last year on the Wind River Indian Reservation in Fremont County.

His comment comes on the heels of Republican Sen. Cale Case’s recent announcement he’s drafting state legislation that would specify all coroner records be open for public review unless privileged or confidential by law.

McAuslan said Case notified him this week by email of his intentions to draft the disclosure of information bill.

More here.

N.J. to limit disclosure of child death details

State reports on child-death cases will no longer include details of the Division of Youth and Family Services' prior actions,the Star-Ledger reported. State officials say the federal monitor who oversees child welfare reform provides enough oversight; reports will now simply include trends rather than the histories of the deceased children who were involved with a state program. Officials say the decision was made "out of respect for surviving family members;" however, it was the release of details in the 2003 death case of 7-year-old Faheem Williams that led to DYFS reform. State law does require the department to disclose the name, birthday, date of death and whether the families of fatal child abuse victims were under DYFS supervision. However, the Child Advocate reports provided more details than required, details that often led to policy changes.

Leaders at the agencies most responsible for New Jersey's child-protection agency say the state no longer will publicly disclose the details of DYFS prior actions when a child it has supervised dies from abuse or neglect.

The decision signals a change in policy after the state issued annual reports detailing what happened in each child-death case for the past six years. Instead, the state will issue reports focusing on trends it has found.

State officials say reporting individual cases is not a useful way to assess how the child-welfare system is working and publicizing details could hurt victims' families. They say with a federal monitor overseeing child welfare reform, there is enough oversight.

More here.

Group requests audio/videotapes concerning Gates' arrest

Judicial Watch filed a Massachusetts Public Records Request for any audiotapes or videotapes recorded before, during or after the arrest of Henry Louis Gates, according to Marketwire.

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a Massachusetts Public Records Request with the Cambridge, MA, Police Department regarding the arrest of Harvard Professor Henry Louis Gates. Specifically, Judicial Watch seeks the following records:

Any audiotapes or videotapes recorded prior to, during, or after the arrest of Harvard Professor Henry Louis Gates on July 16, 2009.

On July 16, Sergeant James Crowley responded to a 911 phone call from a passerby reporting two men attempting to force open the door at Professor Gates' Harvard Square home. Professor Gates claims that he had just returned from a trip to China and his front door was jammed. He asked his driver to help him force it open.

More here.

Also, 911 Tape Raises Questions in Gates Case, NYTimes: "The woman who called 911 to report a possible breaking and entering at the home of Prof. Henry Louis Gates Jr. told the dispatcher that she had “no idea” if the two men she saw were breaking in and said that, in fact, they might live there." The recording was released by the Cambridge Police Department.

Florida State sues NCAA for legal fees

Florida State wants the NCAA to pay its legal fees associated with a suit against the university and NCAA for not releasing records related to academic cheating sanctions, the AP reported. The university says it can't make the records public because of an NCAA Web site that forbids downloading or printing.

Florida State is back in court — suing the NCAA.

The school said Friday its wants the NCAA to pay its legal fees and other costs incurred in a suit filed against the university and the athletic governing body for failing to comply with Florida's public records law.

General Counsel Betty Steffen said it has been technically impossible for the school to make records in the case public because an NCAA website prohibits downloading or printing.

More here.

N.J. Government Records Council loses open records suit

The New Jersey Foundation for Open Government won its case against the New Jersey Government Records Council. The council, designed to help enforce open records laws, violated the law itself by refusing to release the e-mail addresses of those who had filed complaints with the council. The foundation had requested acknowledgment notices sent to each person who filed a complaint; the council had released the records but redacted the e-mail addresses on the grounds of privacy.

The New Jersey Foundation for Open Government (NJFOG) announced today that it
has won a lawsuit against the New Jersey Government Records Council (GRC) for violating the Open Public Records Act (OPRA), the very statute the GRC was created to enforce.

NJFOG had requested from the GRC complaint acknowledgement notices that the GRC emails to complainants. In response, the GRC had withheld the individual complainants’ email addresses. On July 17, Mercer County Superior Court Judge Douglas H. Hurd, J.S.C. “ordered that the defendant GRC grants Plaintiff NJFOG access in unredacted form to the requested GRC acknowledgement
notices. GRC shall comply with this Order by August 14, 2009.”

More here.

Appellate court says police internal affairs reports are public

The 4th District Appellate Court ruled that police internal affairs reports are public records, The State Journal-Register reported. The court said this is so no matter what the results of the investigation are. The ruling was in response to a lawsuit filed by a dentist who complained that a sheriff's deputy roughed him up for driving improperly during a kidney-stone attack. The dentist, Mark Gekas, didn't sue for excessive force but only after the department didn't turn over copies of the internal affairs report to him.

Police internal affairs files are public records, even if investigators conclude that accused officers did nothing wrong, a state appeals court has ruled.

The decision came Monday in a lawsuit filed by Springfield dentist Mark Gekas, who says he was roughed up by Sangamon County sheriff’s deputy John Gillette during a 2006 traffic stop.

Gekas sued Sheriff Neil Williamson after the department refused to give him copies of internal affairs reports. The department said the records are part of Gillette’s personnel file and that making them public would violate the deputy’s right to privacy.

More here.

CREW not pleased with release of health care visitors list

The list of White House visits by health care executives released by President Barack Obama indicate that private meeting began shortly after he took office, the AP reported. The list was released after Citizens for Responsibility and Ethics in Washington threatened to sue the White House for the logs, which are maintained by the Secret Service. CREW says it will continue seeking visitor logs from the White House and that the disclosure "in no way satisfies" its request. "The actual visitor records likely would indicate with whom each official met, the administration official who requested clearance for the visitor, the time of the meeting, the duration of the meeting and, in some cases, the purpose of the meeting. In addition, no information was provided regarding any visits to the vice president's residence," the group said in a written statement.

President Obama's administration began holding private meetings with health industry executives and lobbyists at the White House a few weeks after he took office, a visitor list released Wednesday night by the White House shows.

Richard Umbdenstock, president of the American Hospital Assn., was at the White House on Feb. 4 and has been back at least half a dozen times since, most recently May 22. Other industry executives making February visits included health insurance company chief executives Angela Braly of WellPoint Inc. and Jay Gellert of Health Net Inc.

Gellert, a $500 donor to Obama's presidential campaign, was there Feb. 10, twice in March and on May 11. Braly visited on Feb. 13.

More here.

Also, WH list of health exec visits inadequate, group says from Politico
And, Obama hold on records raises hypocrisy charge from Washington Times: "Sending us a letter is not the same as releasing the records. There is a lot of information in those records that is not in the letter," CREW Executive Director Melanie Sloan said. "Releasing names for political expediency is not the same thing as transparency. This is not the type of transparency they promised."

Wyo. senator proposes public review of coroner records

Wyoming Sen. Cale Case has drafted legislation that would make all coroner records open for public review unless they're privileged or confidential by law, the AP reported. This would call for state coroners to redact privileged or confidential information in files so that as much information as possible is disclosed. His legislation is in regards to the death of three teenage girls on the Wind River Indian Reservation. The FBI investigated the case, but the U.S. attorney's office in Cheyenne has refused to comment. The suspicion is that juveniles are facing criminal charges.

The federal government's refusal to say what killed three teenage girls on the Wind River Indian Reservation last year is driving a Wyoming state senator to try to force county coroners to open their records to the public.

Sen. Cale Case, R-Lander, has drafted legislation that would specify that all coroner records would be open for public review unless they're privileged or confidential by law.

Case's proposal calls for directing the state's 23 elected coroners to redact privileged or confidential information in their files to allow the fullest possible disclosure.

More here.

Budget cut will 'gut the progress' of Penn. Office of Open Records

Terry Mutchler, Pennsylvania's first executive director of the Office of Open Records, says the projected budget cuts will defeat the purpose of the newly created office. The office is expecting to be underfunded by $300,000. With such a cut, staff will have to be let go, and more and more citizens will have no option (other than going to court, if they can afford it) for contesting a denial of requested records. Since May 2009, the office has processed about 600 appeals, 2,400 e-mails, 1,200 phone calls and conducted more than 200 FOI training sessions with nine staffers. Some decisions have gone to court, which requires full-time legal attention. "But the reality is that the office is in its infancy and does not have fat to cut. This is not just cutting money -- it's cutting the commitment to ensuring open and honest government."

All is not well at Pennsylvania's new Office of Open Records.

As its first executive director, that is a very difficult but necessary truth to express. I am asking citizens and other open-government advocates for their help. We are at a cross-roads and it is only fair that citizens have an accurate and honest picture of what's happening with this portion of their government.

Pennsylvania rewrote its archaic Right-to-Know Law and created an independent office to resolve records disputes. As of Jan. 1, all records of the government were presumed to be open. Gov. Ed Rendell and Sen. Majority Leader Dominic Pileggi championed this cause, and I applaud them for pulling Pennsylvania out of the dark ages.

More here.

See also, Budget cuts threaten disclosure

White House CIO says 'tectonic shift" is needed

White House Chief Information Officer Vivek Kundra knows change will not be easy, especially when trying to reprogram government agencies in terms of transparency, National Journal Online reported. In June, he released a Web-based IT dashboard that showed how government IT projects were progressing. It shed light on 45 Veterans Affairs projects that were lagging behind schedule or over budget. All were temporarily halted.

White House Chief Information Officer Vivek Kundra believes a "huge, tectonic shift" is needed for government agencies to accept a new era of open government, which has become a major mission of the Obama administration. The bottom line, he told a high-tech conference on Tuesday, is that "at the end of the day we're stewards of taxpayer dollars and we need to be open and transparent around using that money." The latest project to launch in that space was in June when he unveiled a Web-based IT dashboard that sheds light on the performance of IT projects across government. As a result of that initiative, the Veterans Affairs Department said it was temporarily halting 45 projects that were found to be behind schedule or over budget.

"It's okay if a project is behind schedule as long as we understand what is causing the delay," Kundra said. "We need to understand the root cause so we can solve the problem." At the VA, the worst offender was 110 percent more expensive than planned and 17 months behind schedule. The agency plans to audit all the projects in question to determine whether additional resources or new management teams can get them back on track. "If we didn't highlight this and make data available, we would be continuing to plow good money after bad money," Kundra explained. Putting data out there through the IT dashboard and other initiatives forces agencies to take action and drive change across government, he said.

More here.

Justice Department argues for protection of Cheney's interview

The Justice Department is arguing that the release of Dick Cheney's interview with prosecutors concerning the CIA leak case could create a chilling effect, Politico reported. Department attorney Jeffrey Smith argued his case in front of Judge Emmet Sullivan in an FOIA lawsuit, which seeks the release of Cheney's interview records. Smith asked that the records be kept secret for five to 10 years so that it would be more likely for the information to be used "for historical purposes and not for political embarrassment." Sullivan has not stated his opinion on the case but did say at one point that the Justice Department seemed to be asking him to create a new vice presidents' exemption to the FOIA.

President Barack Obama’s Justice Department is arguing that former Vice President Dick Cheney’s interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.

“In making public the vice pesident’s interview, you will chill them,” Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.

Sullivan sounded highly skeptical of the government’s arguments, but he said he had not decided how he would rule in the case. "Where do I draw the line? This happened five years ago,” the judge said. “Would there be impediments to putting this information in a time capsule?”

More here.

Also, My Take On the DOJ Argument To Withhold Cheney Interview from The FOIA Blog: "The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply."

And, Saving Dick Cheney from 'The Daily Show'? from Politico: “The government doesn’t want to have what’s in these documents end up on a late-night comedy show,” Sullivan said.

iPods on fire, literally

FOI at Work!
KIRO-TV obtained more than 800 pages of Consumer Product Safety Commission documents detailing iPod-related injuries, including at least 15 incidents of overheating and burning, FOX News reported. The TV station said it took seven months to obtain the documents due to exemptions filed by Apple lawyers. The station requested the information after hearing how an iPod caused a "penny-sized burn" on the chest of Jamie Balderas of Arlington, Wash.

In a report posted on its Web site Tuesday, KIRO-TV says it used the Freedom of Information Act to get more than 800 pages of Consumer Product Safety Commission documents regarding iPod-related injuries and property damage.

Within the documents were details of at least 15 separate incidents where iPods overheated, sparked, smoked, caused burns or caught fire, KIRO-TV said.

The station became interested when Jamie Balderas of Arlington, Wash., was mystified by a penny-sized burn on her chest in Nov. 2008.

More here.

Gov. Kaine's schedule details his travels, sorta

Virginia Gov. Tim Kaine's office released a spreadsheet that details where Kaine was from Jan. 1 to July 18, The Roanoke Times reported. This is after his office had denied an FOI request from the GOP for this data. Although the schedule indicates that Kaine didn't travel farther than Washington, D.C., when the General Assembly was in session, the data doesn't distinguish between when travel was related to his position as governor and when it was related to his position as DNC chairman.

Wonder where Gov. Tim Kaine has been?

Republicans and media outlets have been asking that question for weeks, seeking details about Kaine’s schedule since he became chairman of the Democratic National Committee in January. The governor’s office on Tuesday released a spreadsheet that generally accounts for Kaine’s whereabouts every single day from Jan. 1 to July 18. Kaine’s office had previously denied a GOP Freedom of Information Act request for his travel details.

But Kaine spokeswoman Lynda Tran said the governor “has always responded to questions regarding his work and whereabouts and remains willing to respond to these inquiries.” She said the office will release similar details at the end of each month.

More here.

Group requests information on Wy. deaths

The Wyoming Coalition for Open Government asked U.S. District Judge William Downes for information (at least the docket number) on the case involving the death of three Wyoming teenagers, AP reported. The FBI handled the investigation, and no details of the case, including the cause of death, have been released. At this point, it isn't for certain that a juvenile case related to the deaths exists, but comments made to reporters suggest that it does.

An open-government group has asked a federal judge to acknowledge the existence of a juvenile criminal case related to the deaths of three girls on the Wind River Indian Reservation.

The girls — Ohetica Win Elyxis Gardner, 13; Winter Rose Thomas, 14; and Alexandrea "Alex" Whiteplume, 15 — were found dead in a tribal housing complex south of Riverton on June 4, 2008. The FBI has handled the investigation into the girls' deaths.

The Wyoming Coalition for Open Government asked U.S. District Judge William Downes, chief federal judge for Wyoming, in a letter Monday to reveal at least the docket number in the case so the group could intervene in any proceedings.

More here.

Public health issue raises Sunshine Law questions

The Missouri Department of Natural Resources might have violated the Sunshine Law by not informing the public of a report indicating that dangerously high levels of E. coli were present in the Lake of the Ozarks, the Springfield News-Leader reported. The Lake Ozarks Water Alliance and the Lake Sun Leader newspaper had both asked for the routine reports and were denied access.

Attorney General Chris Koster's office is investigating whether the Department of Natural Resources broke the Sunshine Law by withholding a report showing dangerously high levels of E. coli in the Lake of the Ozarks to protect businesses and tourism dollars from a loss of revenue.

"Open government is in the best interest of Missouri, never more so than when concerns over public health are at issue," Koster, a Democrat, said in a statement.

DNR Director Mark Templeton said his agency turned over related documents to Koster's office Friday, but he declined to reveal their contents.

More here.

Sanford's travel records raise questions

Anderson Independent-Mail is questioning if Gov. Mark Sanford's trips (to China, Germany, Poland, London and Brazil) benefited South Caroline and why they were so over the top, considering that Sanford paints himself as a frugal man.

As evidenced by travel records obtained through a Freedom of Information Act request, Gov. Mark Sanford wasn’t as tight with taxpayer dollars as one might have expected for the man who slept on a cot in his congressional office and spoke so forcefully against accepting federal stimulus money for our state.

During his first campaign for governor, in fact, one of Sanford’s campaign points was criticism of travel expenses for other state officials, according to The Associated Press.

One has to wonder if the question of expenses would have even been raised had there not been so much dismay over how much some of those travels have cost the state in other ways. And how much they have cost him personally.

More here.

Electronic trial proceedings are public records in Fla.

The Florida Supreme Court rejected a recommendation to protect judicial audio and video recordings, the AP reported.

The state Supreme Court has ordered that electronic recordings of trial proceedings are public records.

The court Thursday unanimously rejected a recommendation from a judicial commission that audio and video recordings be protected unless a judge approves their release. The high court cited the state's open government laws in siding for openness.

The ruling comes after an appeals court rejected a request from The Tampa Tribune for audio recordings in a criminal sentencing. At issue was whether privileged conversations that weren't part of the official court record could be heard on the recordings.

More here.

Wis. S.C. decides newspapers are entitled to state personnel records

The Wisconsin Supreme Court upheld a circuit court decision that provided newspapers access to state personnel records, the State Bar of Wisconsin reported. State agencies had refused to disclose names of state employees to the Milwaukee Journal Sentinel and the Lakeland Times based on a collective bargaining agreement with the Wisconsin State Employees Union. The Supreme Court determined that the Legislature didn't properly amend the Public Records Law to include its agreement with WSEU.

The Wisconsin Supreme Court agreed two newspapers were entitled to access state personnel records after it concluded that the Legislature failed to properly amend the open records laws to prevent such disclosure.

But before the court could even reach these determinations in Milw. Journal Sentinel v. Wisc. Dept. of Admin., 2009 WI 79, it had to find that it was empowered to review the Legislature’s work. A majority of the court concluded that it was, given its mandate to review statutes for compliance with the constitution.

In dissent, Chief Justice Shirley Abrahamson said that the court’s review was unduly interfering in the affairs of an equal branch of government.

More here.

E-mail details how staff responded to Sanford's disappearance

FOI at Work!

The State received almost 600 pages of e-mail and phone records from Gov. Mark Sanford and hi staff during the governor's secret June 18-24 trip to Argentina to visit his lover. Staffers downplayed the governor's disappearance, and chief of staff, Scott English, made 15 calls to the governor's cell -- none of which were picked up. Also, several media organizations pleaded with Joel Sawyer, Sanford's communication director, for an exclusive -- and positive -- interview. (Also see Media Outlets Offered to Spin Sanford Story here.)

Gov. Mark Sanford’s chief of staff, Scott English, called the governor’s cell phones 15 times during the governor’s secret trip to Argentina to visit his lover last month. But the governor never picked up.

Meanwhile Sanford’s communications director, Joel Sawyer, worked to minimize the fact the governor had been out of touch with his staff for about four days.

Records released Monday show Sawyer juggled e-mails and media calls from around the nation, giving a consistent message that was later proven to be untrue.

More here.

Fla. AG sides with public records law, not NCAA

Florida Attorney General Bill McCollum has taken steps to help protect the state's public records law in regards to NCAA records, WCTV reported. Because the records were released to Florida State University, they are considered public records, according to McCollum. However, both the university and NCAA are being sued by news organizations for withholding the files.

Florida's Attorney General wants to join the fight over the NCAA documents released to FSU.

As we reported Tuesday, Attorney General Bill McCollum filed a motion Tuesday that would allow the office to file an amicus brief with the circuit court.

The Attorney General's office says Florida State and the NCAA are part of a lawsuit against a number of news organizations over the release of public documents.

More here.

Maryland AG, SHA block access to key records

From Richard D. Boltuck of Maryland:

Most residents of West Bethesda in the neighborhoods near Whitman High School are well aware of the hazardous and chaotic Braeburn Parkway/River Road intersection used as one of the main entrances to the Whitman parking lot. Many of those turning on or off River before and after school are high school students, among the least experienced drivers anywhere. Many dangerous accidents have occurred at this intersection, including one recently noted on some local listservs; the lack of anyone being killed in such an accident to date is a product of good luck rather than precautionary measures.

For well over a decade, the community has sought installation of a traffic light at the intersection to regulate traffic and tame the hazards. River, of course, hosts numerous traffic signals already, including at the entrances to country clubs and other schools. The community's efforts have always been supported strongly by members of our General Assembly delegation. And as you might recall, last year we collected hundreds of local signatures on a petition urging the Maryland State Highway Administration (SHA) to install a light. Thus far, however, the SHA, which owns River Road, has rejected our pleas.

Typically, when periodic concerted efforts were underway in past years, SHA engineers would meet with the community or its representatives and inform them that a recent scientific engineering study required by law before a signal could be approved indicated that a signal was not warranted. At that point, the community was left with few immediate options, except to request another examination a few years later. In the meantime, students, faculty, and staff at Whitman, together with other drivers, continued to risk life and limb every day. And, of course, the next study by SHA simply echoed the prior one, starting the cycle over again. In short, no progress.

In the past year, I have worked on breaking this unproductive cycle by taking a somewhat different approach -- with great advice and assistance from others, including particularly Peter and Christina Sklarew, and Seth Guggenheim. My hypothesis was that part of our historical ineffectiveness arose from a lack of symmetry in the information we possessed. We had never actually obtained any of the SHA traffic-signal warrant analyses and the accident data on which they were, in part, based, let alone studied them carefully. Consequently, last summer I filed a request for these analyses and data with the SHA, based on the Maryland Public Information Act (PIA), the state's version of the Federal Freedom of Information Act. I had assumed that the analyses were not previously reviewed simply because they had never been requested. I was surprised, however, that my request was rejected on a variety of grounds asserting alleged exceptions to general disclosure requirements of the PIA.

Over the past year, I have challenged this rejection through the administrative review process set out in Maryland's Administrative Procedures Act (APA). Last September, the case was heard before an administrative law judge in the Maryland Office of Administrative Hearings. Shortly before that hearing, SHA partially backed down, sending me copies of the various warrant analyses, but continuing to withold the compiled accident data. These data are important in verifying the validity of that aspect of the analyses, and in better understanding SHA's perception of how dangerous the intersection is.

The administrative review process is now at its tail end, and I am awaiting a "final decision" by SHA Administrator Neil Pedersen no later than the end of August. Last week, Peter Sklarew and I attended a hearing before Mr. Pedersen and I presented oral arguments in favor of disclosing the requested accident data. The PIA case has been interesting in itself as a public-interest project. Maryland's highway and road system, after all, touches all of our lives, and constitutes one of the most significant uses of public tax funds in the state.

Despite the democratic public interest in understanding how our money is used and on what decisions about our road system are based, and despite the fact that the SHA is not a national-security agency, SHA and its legal advisors from Attorney General Gansler's office have devised a theory that they argue prevents them from disclosing a very significant share of public highway records to members of the public. Highway accident data, paid for by taxpayers and relied on in improving highway safety, are among those records. The legal position taken to date by AG Gansler and his staff is at the core of the problem. AG Gansler's office has thus far (up through Mr. Pedersen's "Proposed Decision") adopted a needlessly expansive and unjustified interpretation of a 2003 Supreme Court decision as a key part of its theory, an interpretation directly at odds with the two state appellate courts (in Kansas and New York) that have addressed this exact issue after 2003. In doing so, Mr. Gansler has, in effect, invalidated rights established for Maryland citizens (and others) by the General Assembly, instead preferring an interpretation where Federal law broadly preempts Maryland's own PIA. I would have thought the job of the AG is to defend the state's statutes, and the rights they create, to the greatest extent possible. If I were in the General Assembly, I would be furious that the laws I had participated in passing were being treated in this manner by the state's own chief attorney.

View related case documents here.

Michigan cracks down on tweets

Texters and tweeters in Michigan, beware:

Starting in September, Michigan jurors will no longer be allowed to send text messages, "tweet" or engage in other forms of electronic communication during trials.

The Michigan Supreme Court established the new rule Tuesday in an attempt to prevent distraction and outside information from influencing trial outcomes, according to the National Law Journal. The new rule requires that jurors be instructed ahead of time that electronic devices like Blackberrys and iPhones may not be used in the jury box or during deliberations.

Courts around the country have been grappling with the question of how to keep jurors from using Twitter, Google or text messages to divulge or gather information inappropriately during trial.

More here.

Virginia considers rule to protect juror info

The Virginia Supreme Court will receive public comments until Sept. 1 on a proposed rule that would seal juror information in all criminal trials, the Reporters Committee for Freedom of the Press reported. The Virginia Coalition for Open Government says this is "potentially unconstitutional."

The Virginia Supreme Court has proposed a rule to tighten access to juror information in all criminal trials, expanding on a 2008 state law that gives courts the authority to keep juror lists secret where there is "good cause."

The proposed rule would shield jurors' identities, giving them numbers by which they would be referred to in court. It would allow judges to further restrict disclosure of personal juror information collected by the clerk's office in some cases. Virginia Beach courts have already launched a similarly restrictive policy, closing access to juror information in all cases, according to The Virginian-Pilot.

The Virginia Coalition for Open Government has come out against the proposed statewide rule.

More here.

Registration for FOIA/Privacy Act training now open

The American Society of Access Professionals will hold its 2009 FOIA/Privacy Act training workshop from Sept. 21-23 in Chicago. The program is designed for those "who are new
to working with the FOI or Privacy Acts; those who have limited experience; those who deal with the Acts as an adjunct responsibility; or those who would benefit from an in-depth refresher course." Special sessions will be held on records management and Department of Defense procedures.

More here.

City Hall floor might be gated

Although the California Public Records Act requires that public records be available during public business hours, Union-Tribune journalists were not allowed to see financial records at the San Diego City Hall, the Union-Tribune reported. The staffers visited City Hall to view checks written by the city after no one responded to their FOIA requests. Marcelle Rossman, the city's financial operations manager, intervened twice when other city employees directed the journalists to the files. Now City Hall has installed an "authorized employees only" sign on the seventh floor and is considering the addition of a gate or doors.

A showdown last month between a pair of Union-Tribune staffers and San Diego city officials over financial records housed at City Hall has led city officials to post "authorized employees only" signs on the seventh floor.

The journalists, reporter Brooke Williams and data specialist Danielle Cervantes, went to City Hall on June 17 to view checks written by the city.

Williams said she and Cervantes had made at least three requests to see the checks with no response from the Mayor's Office. They decided to go to City Hall -- armed with a copy of the state Public Records Act -- and ask to see the checks in person. To read Williams' full account, go here.

More here.

Records detail abuse of Detroit's emergency checks

FOI at Work!
Detroit city officials used 900 emergency checks in just two years, most of them for questionable expenses, the Detroit Free Press reported. The newspaper obtained records through FOIA that indicated these checks were used to hire a public relations expert by Mayor Kwame Kilpatrick during his scandal, to pay rent for the Coleman A. Young Municipal Center and even to buy fuel for city cars. Often paperwork was not filled out, which means it's unclear who authorized the spending.

The City of Detroit has regularly used emergency checks to cover hundreds of routine or questionable expenses, including thousands of dollars for a public relations expert hired by former Mayor Kwame Kilpatrick in the midst of the text message scandal last year.

The emergency checks also were used to pay off credit cards for Kilpatrick, make nearly $1 million in rent payments for the Coleman A. Young Municipal Center and purchase fuel for city vehicles. Experts say the actions suggest a cash flow problem for the city because money should be set aside in the budget for basic expenses such as rent.

The actions also are an abuse of an accounting practice known as quick checks, a process to provide same-day checks to cover emergencies.

More here.

MU says it complied with Columbia Dispatch's request

The University of Missouri says it complied with the Columbus Dispatch's records request and maintains records as it should according to NCAA terms, the Columbia Missourian reported. MU says it didn't "refuse to provide any information to protect privacy" involving the records of complimentary tickets for athletes and it does keep records on athletes' summer employment. The university said it informed reporters that the ticket data would cost $300 to compile into a compatible form, but the reporter no longer wanted the information. Similarly, MU says it keeps employment records but the reporter didn't want them unless athlete names were included. MU redacts students names in these records.

The Columbus Dispatch said that the University of Missouri, like other NCAA schools, misinterpreted privacy rules and violated NCAA terms by hiding public records.

However, MU said that it complied with the Dispatch's request and does keep all the records it should.

As part of a six-month investigation, the Columbus Dispatch found MU "refused to provide any information to protect privacy" involving the records of complimentary tickets for athletes, and "the school did not keep these records" about the athletes' summer employment.

More here.

Missing e-mails show up in criminal investigation

E-mails not provided to The Palm Beach Post in regards to a request for e-mails sent and received by former Florida House Speaker Ray Sansom turned up during his criminal investigation, Post on Politics reported. The House had told the newspaper that Sansom didn't send or receive a single e-mail in the 11-day period for which records were requested. However, prosecutors' files included correspondence from that time. Officials say those "non-existent" e-mails might have come from Sansom's personal e-mail account or they might have been deleted e-mails that investigators uncovered.

A criminal investigation of former Florida House Speaker Ray Sansom, recently indicted on charges of falsifying the state budget, has turned up e-mails related to the scandal that supposedly did not exist when The Palm Beach Post requested the documents from the legislature.

The Post asked Sansom’s office Dec. 10 to turn over the previous 20 days of e-mails that the Destin Republican had either sent and received. The request was made to gauge public reaction to news that Sansom may have received a six-figure job from Northwest Florida State College in exchange for funneling millions of state dollars to the school.

The Post also sought messages between Sansom and then-college President James “Bob” Richburg about the scandal.

More here.

Computers seized from U of I Chancellor's Office

The University of Illinois removed two computers from the chancellor's office so that officials can obtain all e-mail relevant to the online admissions controversy, The News-Gazette reported. The university released 123 pages of e-mail messages in response to FOIA requests from The News-Gazette and the Chicago Tribune. It's unknown whether the newly released documents were intentionally withheld or just overlooked.

The University of Illinois legal office removed two computers from Chancellor Richard Herman's office Thursday as part of a new "protocol" to ensure all e-mail relevant to an ongoing admission inquiry are recovered.

UI spokesman Thomas Hardy said the protocol allows officials to capture e-mail on computers and servers and search the messages for relevant keywords, rather than relying on individuals to provide the information themselves.

"It's not the process that is typically used in searching for documents," he said Friday.

More here.

La. governor's schedule still secret under new law

A Louisiana bill passed last week opens up some of the governor's documents previously exempted but still keeps most information under wraps, the AP reported. Sen. Robert Adley of Benton said the legislation doesn't improve access to the governor's records but takes the state "from sunshine to moonshine." The Times-Picayune of New Orleans and The Advocate of Baton Rouge editorialized against the bill which shields for six months some budget-related documents that were considered public record under the current law. The signed bill will allow some documents concerning the governor's travel to be public but will keep his schedule secret.

A bill that opens some but not all of the governor’s records to public scrutiny won final legislative passage in the Senate last week after weeks of debate and negotiations in which Gov. Bobby Jindal’s allies deflected efforts to make his schedule public or preserve his documents for the archives.

The bill, S.B. 278, will keep out of the public eye any governor’s office documents related to the “deliberative process” or intra-office communications among his top staffers. And it puts budgetary advice that state departments submit to the governor off-limits for six months.

Jindal pushed the bill as an alternative to others aimed at lifting a decades-old exemption the governor’s office has enjoyed from the state open-records law. The Senate voted 28-8 on June 24 to approve the bill that had already passed the House. The president of the Senate and the speaker of the House signed the measure June 25.

More here.

Release Defense documents still redacted

Although the Department of Defense released 12 documents related to detainee abuse, the redaction of key details is still pretty heavy, The Public Record reported. Some of what the Obama administration redacted had been previously released under Bush. One page is fully redacted. What wasn't redacted, however, suggests that Bush player a larger role in prisoner interrogation than he has admitted to. "I got my marching orders from the president," Maj. Gen. Mike Dunlavey said.

The Department of Defense released redacted documents Thursday related to abuse and torture of detainees held in U.S. custody at Guantanamo Bay and other overseas prisons.

The 12 documents were released as part of the American Civil Liberties Union's long-running Freedom of Information Act (FOIA) lawsuit against the government.

The Obama administration agreed to reprocess the documents, but it continues to withhold many key details related to the Defense Department's use of torture methods. In some documents, the Obama administration has withheld details that were previously disclosed by the Bush administration.

More here.

Missouri becoming more proactive in FOIA

In addition to the educational efforts of the newly formed Missouri Sunshine Coalition, the state's attorney general, Chris Koster has contacted all 114 counties to discuss the Sunshine Law, Kim Wrinkle of The News-Leader reported. "We have truly needed less apathy and more action towards those in power who have abused the Sunshine Law or simply ignored it," she wrote. "With the help of the Missouri Sunshine Coalition and the Attorney General's office, I hope that Missouri can become much more proactive with holding our elected officials accountable for their actions."

If we polled 100 people walking down any street in southwest Missouri, my guess would be that 75 of them would have no idea what the Sunshine Law is about or that it even exists.

Missouri has been given a great opportunity by a group of people who know the importance of open, transparent government and believe that any citizen should have access to public information.

The Missouri Sunshine Coalition was formed this year with the mission of educating Missouri about the Sunshine Law. Members of the coalition believe in a form of government that operates in a free and open environment with access to information and is working to make sure the citizens of our state can get such information in a simple way.

More here.

Release of CIA torture report delayed

The ACLU is challenging the delayed release of the CIA's 2004 inspector-general report, The Washington Independent reported. The 200-page report, which is supposed to be declassified as part of an FOIA lawsuit agreement, will not be released before Aug. 31, according to the Justice Department. The ACLU says that the CIA and Justice Department have missed three deadlines already for the disclosure during the five months they've had to review the report.

Word’s coming now that the Obama administration is seeking to withhold the CIA’s 2004 inspector-general report on the implementation of its former “enhanced interrogation regime” until August 31. The ACLU, which had an agreement with the administration to declassify the report as part of a Freedom of Information Act lawsuit, is going to challenge the administration’s efforts. More soon.

Update: Just got a hold of the court documents. Check them out after the jump.

The Justice Department argues that the volume of material it needs to go through in the CIA’s 2004 inspector general report is just too great to meet any pre-August 31 timetable. Not only is the IG report itself 200 pages, that’s just one of 319 documents under review as part of the case.

More here.

N.C. lobbyists argue against creating an open government unit

The North Carolina House Finance Committee heard arguments on a bill that would create an open government unit with the Department of Justice, the AP reported. The department would issue advisory opinions and provide mediation services. However, Paul Meyer with the North Carolina League of Municipalities says the unit could slow down information access because the more than 1,500 state and local government agencies would feel forced to ask the open government unit for an opinion rather than their own attorneys.

City and county lobbyists argued Wednesday that a proposal to create a new state office to handle open government disputes and a change in how legal fees are awarded could delay further the release of documents.

The "Open Government Unit" with the Department of Justice would issue advisory opinions about public records questions and attempt to work out public records and open meeting issues without going to court.

The bill, heard but not voted on by the House Finance Committee, also attempts to make it easier for news media outlets and individuals suing in public records lawsuits to collect attorney fees if the documents are released.

More here.

First Amendment Foundation pleased with vetoes

The First Amendment Foundation is pleased with Florida Gov. Charlie Crist's two vetoes, the Reporters Committee for Freedom of the Press reported. The group had opposed the first bill, which would have kept sealed any "proprietary business information" the Department of Management received from a telecommunications company. The second bill, for which the organization recommended a veto, would have exempted "information identifying a donor or prospective donor to a publicly owned building."

Florida Governor Charlie Crist last week barred two new exemptions from being added to the state's public records law when he vetoed a pair of bills approved by state lawmakers.

The first would have shielded from public disclosure any "proprietary business information" the Department of Management received from a telecommunications or broadband company. According to The Associated Press, Crist found the term "proprietary business information" too broad to define an exemption, but he encouraged lawmakers to rewrite the bill next year.

The First Amendment Foundation in Tallahassee opposed the bill and tried to get it narrowed during the legislative session. But the group did not recommend the governor veto the measure.

More here.

Mainstream media led expensive fight

Lucy Dalglish outlined the accomplishments of the mainstream media for the past 50 years and the threats to open records laws in an address to the Association of Alternative Newsweeklies,the Columbia Journalism Review reported. "I'd give anything to once again have a big bad-ass Knight-Ridder Washington Bureau out there doing what it takes to find out what really happened when we went to war in Iraq," she said. "They were far ahead of the game. And they launched a federal FOIA battle early on in the war on terror to find out how we've been treating out wounded veterans."

Last week, Lucy Dalglish, the executive director of the Reporters Committee for the Freedom of the Press, gave a disquieting address to the Association of Alternative Newsweeklies focusing on the danger to our open records and access laws as regional newspapers and other media organizations pare their legal budgets.

In the address, Dalglish outlined major advances in open government and press freedom achieved in the last 50 years: the Freedom of Information Act, open courts, case law preventing prior restraint and spurious libel claims, shield laws and whistleblower protections, countless state and local statutes that require open records and meetings.

And how does Dalglish say America won those fights?

More here.

Full text of speech here.

Jon & Kate's divorce record will be sealed

Jon and Kate Gosselin have shifted their divorce case out of their hometown in Berks County to Montgomery County, which is 50 miles away, the AP reported. It could be because divorce records are open in Berks but sealed in Montgomery. The policy in Montgomery might be open to a legal challenge, however, because the Pennsylvania Constitution declares that "all courts shall be open."

Jon and Kate Gosselin don't live in Montgomery County, Pa. So why are the stars of "Jon & Kate Plus 8" getting divorced there?

One likely answer: to take advantage of an unusual local rule that keeps prying eyes away from divorce records. In Montgomery County, a wealthy enclave outside Philadelphia, divorce filings are automatically placed under seal — barring access to the media and the public and allowing fractious couples like the Gosselins to dissolve their broken marriages in private.

The rule was written decades ago, before no-fault divorce became an option and at a time when divorce petitions tended to be more explosive and salacious than they are today, said Richard Hodgson, the county's president judge.

More here.

Fla. governor vetoes two public records exemptions

Gov. Charlie Crist vetoed one bill that would have "exempted 'propriety business information' obtained from a telecommunications or broadband company by the Department of Management Services," the AP reported. The other bill he vetoed would have exempted the identification of a donor or prospective donor to a publicly owned building who wished to remain anonymous. He signed into law a bill that allows commercial entities (including the media) to obtain Social Security numbers to verify someone's identity.

Gov. Charlie Crist on Wednesday vetoed two bills that would have created new public record exemptions.

One measure (HB 7093) would have exempted "proprietary business information" obtained from a telecommunications or broadband company by the Department of Management Services.

Crist wrote in his veto message the term used was overly broad and suggested that lawmakers try again next year to craft language that protects business interests "while still respecting the state's strong public policy for open and transparent government."

More here.

Nestle denied FDA access to certain records

FDA investigators were denied access to Nestle complaint logs, pest-control records and other records from 2004-2007, the AP reported. An FDA spokeswoman said companies are allow to decide what they will permit during an inspection.

Inspection reports from a Nestlé USA cookie dough factory released yesterday show the company declined several times in the past five years to provide Food and Drug Administration inspectors with complaint logs, pest-control records and other information.

The records, which date to 2004, were made public after Nestlé's Toll House refrigerated, prepackaged cookie dough was discovered to be the likely culprit in an E. coli outbreak that has sickened 69 people in 29 states, according to the latest estimates from the federal Centers for Disease Control and Prevention. The CDC and the FDA are investigating the outbreak.

According to the reports released by the FDA, the company declined to allow agency investigators access to certain documents in at least 2004, 2005, 2006 and 2007.

More here.

U.S. Government CIO speaks about plans for Data.gov

Wired published a Q&A with Vivek Kundra, the U.S. government's first-ever chief information officer, in this month's issue. Kundra spoke about his plans for Data.gov and navigating privacy issues. Wired also has its own Wiki where people can report government data that is not accessible and can suggest how accessibility to government data could be improved.

The Obama administration's most radical idea may also be its geekiest: Make nearly every hidden government spreadsheet and buried statistic available online, all in one place. For anyone to see. Are you searching for a Food and Drug Administration report that used to be obtainable only through the Freedom of Information Act? Just a mouseclick away. Need National Institutes of Health studies and school testing scores? Click. Census data, nonclassified Defense Department specs, obscure Securities and Exchange Commission files, prison statistics? Click click. Click. Click.

The man in charge is the US government's first-ever chief information officer, Vivek Kundra. Previously CTO of the District of Columbia, Kundra, 34, knows that the move from airtight opacity to radical transparency won't be a cakewalk. Until now, the US government's default position has been: If you can't keep data secret, at least hide it on one of 24,000 federal Web sites, preferably in an incompatible or obsolete format.

More here.

Recycled rubber might be dangerous

FOI at Work!
The recycled rubber used to cushion children's playgrounds could be contaminated with lead and other toxins, USA Today reported. The advocacy group Public Employees for Environmental Responsibility learned of this potential danger through internal EPA documents obtained via an FOIA request. A 2008 EPA memo said "there are insufficient data to assess the full spectrum of those risks." Rubber-chip surfaces, however, do prevent injuries better than bark mulch of concrete surfaces.

There's a growing debate about the safety of the recycled rubber chips used to cushion falls on many children's playgrounds.

The Environmental Protection Agency has endorsed rubber play surfaces since 1991, both to protect children from head injuries and prevent tires from ending up in landfills, where they can catch fire or become breeding grounds for mosquitoes.

Yet EPA officials say they can't vouch for the safety of recycled rubber, which can be contaminated with lead and other toxins, according to internal documents released under the Freedom of Information Act to the advocacy group Public Employees for Environmental Responsibility, or PEER.

More here.

Are personal e-mails sent via a work computer public?

The Wisconsin Supreme Court will consider whether personal e-mails sent on work computers are public, the AP reported. A citizen requested e-mails sent by Wisconsin Rapids School District teachers to determine how much time they were spending on personal business during school hours. A judge ordered the e-mails to be released, but the teachers appealed.

The Wisconsin Supreme Court will decide whether personal e-mails sent by public employees are subject to the state's open records law.

The case involves five teachers in the Wisconsin Rapids School District. A citizen asked for e-mails sent from their work computers to determine if they were spending too much time on personal business.

The employees did not object to releasing work e-mails but filed a lawsuit to keep their personal messages private. A judge ordered the e-mails made public, but the teachers appealed.

More here.

U. of I. trustees used clout system for their benefit

FOI at Work!
The Chicago Tribune obtained new records that show almost 100 instances in which University of Illinois trustees "backed" applicants -- including their relatives, colleagues' children and "key employees" -- in the past three years. Between 2003 and 2008, more than 800 applicants were "flagged for special treatment" at the Urbana-Champaign campus. Every member of the Board of Trustees took part in the process, except for new trustee Edward McMillan. "All (trustees) are political contributors, with some having close political ties or a record of generous contributions to the impeached governor." The trustees maintain that they weren't meddling in the admissions process but were serving as intermediaries between applicants and the university.

In September 2006, the dean of the University of Illinois' law school e-mailed a colleague in admissions to say that a U. of I. trustee had "just called me about getting his [relative] into law school here next year."

Dean Heidi Hurd asked the administrator to walk the board member, Dr. Kenneth Schmidt, through "all the variables and considerations to the admissions process."

"Needless to say, this one takes velvet gloves," Hurd wrote, public records show. Schmidt's relative was admitted.

More here.

Records show Conn. officials were warned about dangerous chimp

FOI at Work!
Through an open-records request, the AP obtained records showing that Connecticut officials had been warned since 2003 about a chimpanzee that attacked a woman in February. A Stamford citizen sent an e-mail to the state Department of Environmental Protection asking for a thorough investigation after the chimp escaped from his owner's car in 2003. Someone who ran a primate rescue operation suggested that the chimp be placed in a sanctuary in 2004. The general public began contacting the department with safety concerns. The DEP said no calls or letters presented "specific information indicating that Travis (the chimp) had threatened the public safety or was exhibiting behavior that could lead to such a threat."

Connecticut officials were repeatedly warned about the dangers posed by a chimpanzee who later mauled and blinded a woman and were urged — more than three years before the attack — to take action, but failed to do so, according to records obtained by The Associated Press.

The 200-pound chimpanzee named Travis attacked Charla Nash of Stamford in February, ripping off her hands, nose, lips and eyelids. She has been hospitalized for months at the Cleveland Clinic, where her condition late last week was listed as stable.

The state's response could affect a high-stakes lawsuit the victim's family filed against the chimp's owner, Sandra Herold of Stamford, seeking $50 million in damages. Attorneys are weighing whether to sue others as well, but declined to comment further.

More here.

Newsweek: Obama opts against public disclosure

David Sobel, a lawyer who specializes in FOIA cases, told Newsweek that "nothing has changed" since Obama promised a new era of openness. Instead, the Bush administration's policies are being continued. FOIA experts say Obama's directive for federal agencies to presume disclosure of FOIA requests contained a loophole. The memo "said the new standard applies 'if practicable' for cases involving 'pending litigation.'" The recent controversy of over the denial of White House visitors logs falls into this category due to a pending Bush-era lawsuit for such records.

As a senator, Barack Obama denounced the Bush administration for holding "secret energy meetings" with oil executives at the White House. But last week public-interest groups were dismayed when his own administration rejected a Freedom of Information Act request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies. One reason: the disclosure of such records might impinge on privileged "presidential communications." The refusal, approved by White House counsel Greg Craig's office, is the latest in a series of cases in which Obama officials have opted against public disclosure. Since Obama pledged on his first day in office to usher in a "new era" of openness, "nothing has changed," says David -Sobel, a lawyer who litigates FOIA cases. "For a president who said he was going to bring unprecedented transparency to government, you would certainly expect more than the recycling of old Bush secrecy policies."

The hard line appears to be no accident. After Obama's much-publicized Jan. 21 "transparency" memo, administration lawyers crafted a key directive implementing the new policy that contained a major loophole, according to FOIA experts. The directive, signed by Attorney General Eric Holder, instructed federal agencies to adopt a "presumption" of disclosure for FOIA requests. This reversal of Bush policy was intended to restore a standard set by President Clinton's attorney general, Janet Reno. But in a little-noticed passage, the Holder memo also said the new standard applies "if practicable" for cases involving "pending litigation." Dan Metcalfe, the former longtime chief of FOIA policy at Justice, says the passage and other "lawyerly hedges" means the Holder memo is now "astonishingly weaker" than the Reno policy. (The visitor-log request falls in this category because of a pending Bush-era lawsuit for such records.)

More here.

Medical records of minor cancer patient are public

A Brown County district judge ruled that the medical records of Daniel Hauser, 13, are public, City Pages reported. Hauser's case has been in the public eye after he and his mother fled the Minnesota to avoid chemo for his Hodgkin's lymphoma. The judge said the boy's parents have spoken to the media and the case has been in the public thus far. Therefore, it wouldn't make sense to reverse the course now.

He might be a minor and the issue might be medical records, but that doesn't mean this family will have any medical privacy in their case as their boy has forced chemotherapy treatment for his cancer.

A judge denied their request to seal the medical records of Daniel Hauser, 13, who made national headlines when he fled the state with his mother to avoid chemo for his Hodgkin's lymphoma.

More here.

Enviro groups ask for list of 'high hazard' disposal sites

A band of environmental groups filed an FOIA request after the EPA declined to provide information on which coal ash sites have been deemed a national security risk. Apparently, the Department of Homeland Security has designated 44 massive coal ash piles as high hazard, but the EPA was informed not to release the site locations due to national security risks.

A coalition of environmental groups today formally asked the Department of Homeland Security, the Army Corp of Engineers and Environmental Protection Agency to make public the list of 44 "high hazard" coal ash disposal sites across the country. The Freedom of Information Act request was submitted by the Sierra Club, Earthjustice, the Environmental Integrity Project, and Natural Resources Defense Council after the EPA refused to disclose which of the hundreds of coal ash sites pose such a threat to nearby communities that they have been deemed by the Obama administration to be a national security risk.

"The Department of Homeland Security has designated 44 massive coal ash piles as 'high hazard' because they present a clear and present danger to the people living near them," said Bruce Nilles, Director of the Sierra Club's Beyond Coal Campaign. "People have a right to know if mountains of toxic coal ash are threatening their communities so they can take action and put pressure on their local utilities to demand clean up."

The EPA was instructed by the Department of Homeland Security not to release information about the location of high hazard dams containing coal ash. Unspecified national security concerns were cited as the reason for withholding this critical information from the public, even though the locations of other hazardous sites, such as nuclear plants are publicly available.

More here.

Concealed-weapon permit data: privacy vs. public interest

The News Media and the Law provided a comprehensive report on the increasing frequency of bills to close concealed-weapon permit data. Ginger Stanley of the Virginia Press Association said most legislative proposals to seal away this data can be traced back to a newspaper's use and/or publication of it. Sheriffs have had difficulty finding instances in which crimes were committed due to public access to permit data. However, there have been a slew of instances in which the data was used to inform the public when permitting failed, thereby risking the community.

It’s tough to call it a trend, exactly, when lawmakers in various states have long set their sights on sealing concealed-weapon permit data. But their efforts seem to be paying off more than ever: Since the beginning of 2008, at least seven states have considered legislation yanking permit-holder information from public files. Only one such battle looks to have yielded a complete win — for now — for open governance.

Newspapers from Oregon to Virginia, meanwhile, have inserted themselves or been thrust into the center of fiercely polarized debates over privacy, personal safety and the constitution. It was the Medford Mail Tribune’s 2007 request for the Jackson County, Ore., sheriff’s roster of local permit-holders that touched off a statewide rift between law enforcement and transparency advocates. It culminated in a legislative measure generally sealing the permits.

More here.

FOIA used to obtain photos of plane without wheel

FOI at Work
WIVB News 4 in Buffalo, N.Y. obtained photos of a Colgan Air plane that lost a tire when landing on May 12 via an FOIA request. The FAA report also indicated that a passenger had notified a flight attendant about smoke coming from the wheel but the cockpit crew wasn't told about the safety concern.

News 4 has obtained exclusive photographs of the Colgan Air plane that lost a tire when it landed in Buffalo on May 12. The photographs were obtained through a Freedom of Information Act request to the Federal Aviation Administration.

The photos show the extent of damage to the wheel and brake assembly. A News 4 Investigation recently uncovered new information. An FAA report obtained by News 4 indicates that the cockpit crew had no idea that there was a problem after take-off from New Jersey. A passenger, according to the FAA report, notified a flight attendant that he saw smoke coming from the “wheel” in question.

More here.

Tenn. Senate votes against closing access to handgun permits

A proposal to prevent access to the names of people who have handgun permits failed 14-13 in the Tennessee Senate, the AP reported. A compromise amendment that would have still closed the database but allowed some inspection of records also failed.

A measure to close access to the names of people holding state permits to carry loaded handguns failed last night in the state Senate. Opponents called the vote a victory for open government.

The proposal sponsored by Republican Senate Majority Leader Mark Norris of Collierville was defeated 14-13 in the Senate when it failed to get a majority vote. Norris didn't say whether he would try to revive the proposal, H.B. 0959, which passed the House 83-12 last month.

"This is not a gun bill, it's an open-records bill," said Senate Minority Leader Jim Kyle, D-Memphis. "This is about your open records and your open government. It has nothing to do with guns."

More here.

FBI releases Watergate planner E. Howard Hunt's file

The FBI files on E. Howard Hunt, who orchestrated the Watergate break-in, are thin, according to the AP, which received the data after filing an FOIA request. About 100 pages of his file weren't released because they're National Archives property. What was released included FBI background checks from when he joined the CIA and when he was hired as a White House consultant. Most of the files, however, concern Hunt's request for a presidential pardon from President Ronald Reagan.

Watergate break-in planner E. Howard Hunt sought a presidential pardon by saying he thought the infamous burglary had "executive authorization," according to FBI documents released two years after his death. He died without getting a pardon.

The FBI released 167 pages of Hunt's files following a Freedom of Information Act request by The Associated Press. Wednesday marks 37 years since police caught the burglars in the Washington break-in. The case ultimately made Hunt a household name and led to the resignation of President Richard Nixon.

Despite working as a CIA agent for more than two decades and his role in Watergate, Hunt's file is remarkably thin. As a CIA agent Hunt was involved in a U.S.-backed coup in Guatemala in 1954 and the botched Bay of Pigs attempt to overthrow Fidel Castro. He worked in China, Mexico, Japan and Spain, among other places.

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ProPublica requests list of businesses trying to hide flight plans

Who other than General Motors is trying to prevent the public from tracking its corporate jets? ProPublica filed an FOIA request for a list of the companies that had requested the FAA to remove their planes' tail numbers from records. The Block Aircraft Registration Request Program allows companies to request for their flight plans to be kept private. Flight plans collected by the FAA on all planes that use public airspaces are typically public. The FAA concluded that ProPublica's requested information was public, but the National Business Aviation Association filed a motion for a temporary restraining order. Now, the FAA will withhold the list until a judge hears arguments from both sides.

Remember last fall when the CEOs of General Motors, Ford and Chrysler flew on corporate jets [2] to Washington, D.C., to plead for a taxpayer bailout? The resulting bad publicity prompted GM to try to prevent the public [3] from tracking its planes in databases compiled by the Federal Aviation Administration.

That got ProPublica interested in how many other companies had asked the FAA to excise their planes' tail numbers from records tracking private flights. So in December, ProPublica filed a request under the Freedom of Information Act for a complete listing.

Earlier this month, the FAA concluded that the information was public and planned to release the list on Tuesday. But on Monday, an organization representing corporate jet users went to court to block the release of the records.

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Groups win access to Calif. lawmakers database

The California First Amendment Coalition and MAPLight.org won access to a machine-readable state lawmakers database in its settlement with the Office of Legislative Counsel of California, the California Chronicle reported. The previous form of the database hindered analysis. After the lawsuit was filed, the Office of Legislative Counsel unrolled a "structured database" on its Web site, which can be downloaded by anyone at www.leginfo.ca.gov. MAPLight.org plans to use the structured database to create MAPLight.org California, which will "combine all money given to members of the California state legislature with how each politician votes on every bill, revealing patterns of money and influence never before possible to see."

The California First Amendment Coalition (CFAC) and MAPLight.org, a nonpartisan, nonprofit research organization that shows the connection between money and politics, announce today that they have settled their freedom of information lawsuit against the Office of Legislative Counsel of California, having gained the object of their suit: a machine-readable database of how state lawmakers vote.

"It shouldn't take a lawsuit for the government to realize its data belongs to the people," said Daniel Newman, MAPLight.org's executive director. "In this new era of highlighting transparency, we hope this settlement serves as an example to city and state governments across the country to provide public access to public information."

California Legislative data, including how lawmakers vote, legislation in progress, and laws, was previously available to the public only in a plain-text format on the California Legislative Information website. That data was suitable for viewing and printing, but only allowed access to Legislative data at a rate of one bill at a time, making analysis lengthy and cumbersome.

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Chicago Tribune sues for data on clout applicants

The Chicago Tribune has filed a lawsuit against the University of Illinois after officials declined to disclose ACT test scores and GPAs for applicants who were given preferential treatment. The data was originally requested in April while the newspaper was conducting its investigation. The university president says FERPA prevents the release of those details even if student names would be redacted.

The Chicago Tribune filed a state lawsuit Tuesday against the University of Illinois demanding the immediate release of grade point averages and standardized test scores of the hundreds of college applicants placed on an internal list of well-connected students.

The Tribune originally sought the information in April for an ongoing series of stories about the clout list, in which it reported that students whose applications were pushed by public officials or university trustees received preferential treatment by the admissions office despite concerns about some applicants' qualifications.

In response to an Illinois Freedom of Information Act request by the Tribune, the university released about 1,800 pages of documents -- including e-mail exchanges expressing worry about the "terrible" and "weak" academic records of some applicants -- that have been the foundation of the Tribune's "Clout Goes to College" series.

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Obama embraces another Bush secrecy policy

The Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration after Secret Service rejected requests for White House visitor logs, the Washington Post reported. CREW specifically sought data on the visits of coal company executives but had submitted a broader request for logs that was also denied. Obama's administration says the policies are being reviewed.

President Obama has embraced Bush Administration justifications for denying public access to White House visitors logs even as advisers say they are reviewing the policy of keeping secret the official record of comings and goings.

In recent days, the Secret Service has rejected requests from two organizations for the logs, which document the West Wing meetings that have helped shape Obama's policies on banking regulation, economic recovery, foreign policy and the auto industry.

Today, Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration seeking release of the visits of coal company executives to the White House. Msnbc.com reported today that their broader request for logs since Jan. 20 was also denied.

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