FOIA as a College Football Reporting Tool

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

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

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

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

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

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

More here.

Federal Judge on Overseas Prisoners: Lemme See Those Records

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

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

More here.

AZ lawmaker: "transparency breeds accountability" in

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

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

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

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

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

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

More here.

South Dakota to join the reform party?

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

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

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

More here.

An Exemption Attempt Worth Watching

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

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

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

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

More here.

Aloha!

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

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

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

More here.

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

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

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

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

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

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

More here.

Public Denied Info Under Mass. Bill...

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

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

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

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

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

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

More here.

Iowa Wants an FOI Office...

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

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

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

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

More here.

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

Missouri E-Mail Flap Results in Lawsuit

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

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

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

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

Among the suit’s allegations:

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

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

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

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

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

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

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

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

More here.

More on Foster Care Records in Ohio...

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

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

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

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

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

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

More here.

OOGA!

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

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

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

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

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

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

More here.

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

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

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

More here.

Interesting Foster Care Case in Ohio...

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

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

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

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

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

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

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

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

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

More here.

Sunshine Week Programming Available!

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

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

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

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

Thank you,

Chris

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

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

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

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

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

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

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

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

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

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

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

More here.

Secretive DA Protecting the Hawkeyes?

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

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

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

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

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

The public records in dispute:

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

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

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

More here.

Meet Tennessee's New Ombudsman...

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

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

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

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

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

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

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

More here.

A Great Idea: Grade the Public Notices!

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

A snippet:

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

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

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

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

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

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

More here.

Welcoming 2008 With a Bang!

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

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

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

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

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