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.

Florida Papers Get Attorneys' Fees in FEMA FOIA Flap

The federal government has agreed to pay $105,000 in attorney fees for The News-Press after the newspaper successfully sued the Department of Homeland Security for the release of public records.

The News-Press and its sister Gannett Co. Inc. newspapers, The Pensacola News Journal and Florida Today, sued the agency when it refused to release details on the 1.1 million recipients of $1.2 billion in disaster aid after four hurricanes ripped through Florida in 2004.

The money was distributed by the Federal Emergency Management Agency, a branch of Homeland Security. FEMA refused to detail who received the aid after the newspapers requested that data under the Freedom of Information Act.

The newspapers initially failed in the attempt to get the information from the government, but they prevailed in The United States Court of Appeals for the Eleventh Circuit.

The government was ordered to turn over the addresses of recipients of disaster aid.

Under the Freedom of Information Act, winning a release of the records allowed the plaintiffs to return to court to request attorneys' fees from the government agency.

"It is gratifying that the government finally recognizes some degree of culpability in this case," said The News-Press Executive Editor Kate Marymont. "We view this as further evidence that we did the correct thing — fight for the public's right to know."

The law firm representing the papers, Holland & Knight, had requested $165,000 in attorney fees but the motions were pending while they tried to work out a deal with the government.

"This is an outstanding result for the newspaper," said lead attorney Charles Tobin. "After years of withholding records, the government has agreed to pay six figures. The amount speaks for itself. It's a victory for the First Amendment."

More here.