Here's a New One: "Editorial Privilege"

It's new to me, anyway...

When the Federal Communications Commission votes on something at a public meeting, the document they are voting on isn't necessarily for public consumption, the agency said Wednesday.

Commissioners unanimously rejected an appeal by the Associated Press for a copy of a document that was approved by a 4-1 vote at a July 31 public meeting.

The document was an order establishing rules that would govern the conduct of a planned auction of television airwaves that would later raise nearly $20 billion.

While commissioners approved the rules in a public vote, staff requested "editorial privileges." A formal document was not released until Aug. 10.

More here.

FOI Request Nets Video of Police Custody Incident

A handcuffed Kalamazoo teenager struggles with a Public Safety officer as he is led down a hallway toward a booking room when the officer shoves him into a wall, injuring his face, according to video of the incident released Tuesday.

The city of Kalamazoo released video of the May 22 incident after the Kalamazoo Gazette filed a Freedom of Information Act request.

The officer involved, Derek Nugent, has been placed on a 10-day, unpaid suspension, Acting Public Safety Chief Jim Mallery announced Monday.

The teenager, who is African-American, lost three teeth. In a complaint filed with the department, his family has alleged that Nugent, who is white, was harassing the youth because he is black.

The video (EXTREMELY profane and loud...volume control..) is here.

Think You've Waited a While for your FOI Request?

As the Reporters Committee explains, TRAC waited THIRTY YEARS....

A federal judge ruled Friday that the Internal Revenue Service has flouted three court orders dating back to 1976, requiring it to regularly provide requested information to a Syracuse

University professor. Judge Marsha Pechman, of the Western District of Washington in Seattle, ordered the IRS to produce unredacted copies of the requested audit reports within 30 days.

In addition, the IRS must comply with future requests and send the documents electronically to Syracuse School of Management Professor Susan B. Long within 30 days of her inquiries.

Long co-directs Transactional Records Access Clearinghouse (TRAC), a data-research organization through the school that compiles government statistics for the public. She filed a motion in February for compliance with the three previous orders.

The FOIA saga that spanned four decades began in 1974 when Long, then a graduate student at The University of Washington, filed her original request for statistics from the IRS. She received a court order to enforce the request two years later.

Access to Police Disciplinary Hearings Subject of Cali Bill

A state senator hopes to revive a controversial bill that would increase media access to disciplinary hearings and records involving Los Angeles Police Department officers.

The legislation, according to Sen. Gloria Romero (D-Los Angeles), was encouraged by Mayor Antonio Villaraigosa, and has already generated sharp criticism from the union that represents LAPD officers.

Last year, Romero sponsored similar, yet more far-reaching, legislation that sought to overturn a state Supreme Court ruling that effectively barred law enforcement agencies from releasing personnel information.

The legislation passed the Senate, but stalled in the Assembly's public safety committee. Members of the panel refused to discuss it or vote on it after leaders from several influential law enforcement unions spoke vociferously against it.

Union leaders argued that the law would endanger police officers' lives by making it easier for disgruntled members of the public to track them down -- although they could not cite cases in which officers had suffered such harm before the Supreme Court's ruling, when the public enjoyed greater access to disciplinary information.

More here.

Kudos to the Memphis Schools Chancellor

Not everyday do I dole out praise -- but this is well earned!

Chancellor Walter Evans this morning ruled that records of all applicants for the recent vacancy for superintendent of the Memphis City Schools are public records and should be provided to The Commercial Appeal.

The chancellor’s ruling came after the newspaper filed suit against the school board which provided access only to records of the five semifinalists selected by Ray and Associates, the Iowa-based company hired by the board to conduct the search.

Evans said Ray and Associates was performing a governmental function as an agent for the Memphis City Schools in receiving “all applications” for superintendent and that all applications and correspondence must be made available for public inspection.

More here.

White House Office of Administration Not Subject to FOIA...

The White House Office of Administration is not required to turn over records about a trove of possibly missing e-mails, a federal judge ruled Monday.

The ruling by U.S. District Judge Colleen Kollar-Kotelly found the agency does not have "substantial independent authority" so it is not subject to the Freedom of Information Act.

The decision means the White House does not have to disclose documents relating to its troubled e-mail system. That system developed problems that may have caused millions of White House e-mails to be unaccounted for.

The watchdog organization Citizens for Responsibility and Ethics in Washington had sued under FOIA. The group expressed disappointment in the ruling and said it is appealing the decision.

"The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails," said Melanie Sloan, the organization's executive director.

In January, the White House said it cannot rule out that it may have lost certain e-mails. The possibly lost e-mails are from a period in which the United States decided to go to war with Iraq, White House officials leaked the identity of CIA officer Valerie Plame and the Justice Department started a criminal investigation into who leaked the information.

More here.

Secret Divorce Filings, And the Former Law Partners Who Grant Them

In early February, (Speaker of the House) Glenn and Susan Richardson walked into the Paulding County Courthouse, filed for an uncontested divorce and got their case sealed from public view.

The handling of the divorce raised questions as to whether the speaker of the state House received preferential treatment from Judge James Osborne, who was not initially assigned the case but signed the order placing it under wraps. The judge, once the speaker's law partner, is now weighing a request to unseal the divorce file. He said Thursday that he has treated the Richardsons' request like any other.

he case is being closely watched, particularly by divorce lawyers across the state. They say if the speaker succeeds in keeping the file sealed, it could lead to an avalanche of requests to close the files of other broken marriages.

"If they carve out an exception for him, I guarantee you we'll all be trying to seal divorce records," said John Lyndon, a family law attorney in Athens. "There's no doubt about it."

Lyndon has had mixed results sealing divorce records and said judges more often than not refuse to do it. When successful, he said he gives clients this caveat: "If challenged, I wouldn't expect it to hold up."

More here.

Man Bites Dog...

An elected official demands more openness...

Citing serious concerns about the “extreme secrecy” surrounding the Transportation Corridor Agency (TCA) participation in a key federal interagency committee (formally known as the South Orange County Transportation Infrastructure Improvement Project – SOCTIIP – Collaborative), Lt. Governor John Garamendi sent a strongly worded letter to Jane Luxton, general counsel at the Department of Commerce’s National Oceanic and Atmospheric Administration requesting a more open, public process.

One of the main functions of the federal committee is to coordinate federal agency evaluation of alternatives to the Toll Road proposed to go through the Donna O’Neill Conservancy and San Onofre State Beach Park. As such, this important committee is in a position to determine whether or not new information regarding alternative is objectively considered.

In this June 11, 2008, letter, Lt. Gov. Garamendi stated, “My concern is that these deliberations, so critical to your [NOAA and the Dept. of Commerce’s] final analysis, are being finalized in an environment where ONLY the project applicant examines, presents, evaluates and comments upon evidence. There is no opportunity for the public to participate in or even witness discussions and deliberations.” “TCA is not a collaborative member, but an observer. The structure of the SOCTIIP Collaborative has created an untenable situation: a project proponent with interests that are potentially adverse to the public or in contravention of law, is provided exclusive permission to communicate freely with federal regulators sheltered from public scrutiny. This set up frustrates the purpose of open government and public records law,” added Lt. Gov. Garamendi.

More here.

Florida Judge: Go Get The E-Mail From Home...

In an extraordinary move, a circuit judge ordered three Venice City Council members to let a computer expert retrieve government-business e-mail from their home computers.

Judge Robert Bennett did not specify how Mayor Ed Martin and council members John Moore and John Simmonds must comply with his ruling, which came at the conclusion of an unusual one-and-a-half-hour emergency hearing involving Venice's top public officials.

But he required the three council members to provide access to their private computers to ensure preservation of records that are at the heart of a suit over alleged violations of Florida's open government laws.

Council members Sue Lang, Vicki Noren, Rick Tacy and Ernie Zavodnyik testified that they had turned over e-mail requested as part of the lawsuit and had not deleted any city government e-mail from their home computers. Bennett did not order them to provide access to their private computers.

More here.

The Supremes Weigh in on a FOIA Case..

In case you missed it, Dan Metcalfe's Collaboration on Government Secrecy brings word that the United States Supreme Court weighed in on a rather narrow federal FOIA issue this week:

The Supreme Court issued its decision in Taylor v. Sturgell, in which it reversed the lower court's decision (written by Circuit Judge Douglas H. Ginsburg of the Court of Appeals for the District of Columbia Circuit) and ruled that, as a sound general rule, courts "should not proscribe or confine successive FOIA suits [i.e., for the same records] by different requesters."

Writing for a unanimous Court, Justice Ruth Bader Ginsburg rejected the D.C. Circuit's "broad theory of virtual representation," concluding that while "it is theoretically possible that several persons could coordinate to mount a series of repetitive [FOIA] lawsuits," there is insufficient "risk" of "vexatious litigation" or "abusive FOIA suits" to warrant such a harsh preclusive rule for successive lawsuits brought under the FOIA. This is the thirtieth FOIA case decided at the Supreme Court level (and, putting aside the commonality of the two jurists' names, might be the first time in which the Supreme Court has reversed a decision written by a failed nominee to the Court.)

Interesting FOI Developments in AZ....Well Worth a Read

How close did I come to getting arrested by Maricopa County sheriff's deputies today? As Maxwell Smart would say, "Missed it by that much."

The problem: I had the nerve to want to look at the same public records that sheriff's deputies were scouring at the City of Phoenix public records counter.

First, a little background.

You'll recall that Phoenix Mayor Phil Gordon has been putting a lot of political heat on Sheriff Joe Arpaio in recent months, ripping Arpaio for conducting "crime-supression sweeps" that are really intended to find illegal immigrants. At a luncheon in March to honor Cesar Chavez, Gordon said the Sheriff's Office was doing little more than locking up "brown people with broken tail lights." He reiterated the theme in a May 2008 Latino Perspectives Magazine article, writing that Arpaio has "created a 'Sanctuary County for Felons' with his reckless priorities–that target brown skin and cracked tail lights– instead of killers and drug dealers."

Pretty harsh words, and when the sheriff gets attacked, he bites back. In late April, the Sheriff's Office put in a public records request for every e-mail obtained or received from the mayor and a bunch of his staff members, including City Manager Frank Fairbanks. Arpaio also wants to see the mayor's meeting calendar and cell phone records. As New Times columnist Sarah Fenske wrote last month, the request appears to be a fishing expedition for any records that could harm the mayor politically.

More here.

Missouri E-Mail Saga Just Gets Better and Better...

The Kansas City Star and two other Missouri news organizations asked Wednesday to intervene in a lawsuit to obtain copies of e-mail messages to and from members of Gov. Matt Blunt’s staff.

The Star, the St. Louis Post-Dispatch and the Associated Press filed a joint motion to join the lawsuit filed by independent investigators appointed by Attorney General Jay Nixon. The three-member investigative team is trying to determine whether Blunt destroyed public records that the law says must be retained.

The governor’s office had previously refused to disclose to the three news outlets many of the same documents now sought by the independent investigators.

The governor’s office last year either denied the news outlets’ requests outright or demanded thousands of dollars in fees before the requests would be considered. The motion says the denial and demands for excessive fees violate the Missouri Sunshine law, which gives the public access to government records with limited exceptions...

Blunt's office issued a statement saying he was disappointed that the two newspapers “would join forces with the campaign of Jay Nixon, the Democrat candidate for governor.”

More -- much more -- here.

No Public Interest in Iraq PTSD Cases? Really?!?

From the CREW website:

Today, CREW received a truly remarkable response from the Department of Veterans Affairs (VA) to its FOIA request for documents relating to the VA’s abhorrent practice of under-diagnosing PTSD in veterans to save money. According to the VA, CREW is not entitled to a fee waiver -- meaning it has to pay for the costs of finding and copying responsive documents -- because there is no longer any public interest in this issue! Ignoring the wealth of news articles triggered by CREW’s and VoteVets.org’s release of an internal VA e-mail and the congressional hearing that release prompted, the VA claims that any records CREW requests “would not reveal anything new.”

We know what that means -- fee waiver or not, the VA has no intention of letting any more incriminating e-mails out of its clutches. Let’s hope there are more courageous VA employees willing to blow the whistle on what the VA is, and is not, doing for our veterans.

The VA also claimed it could not respond to the request as written because CREW failed to identify the specific VA offices and employees that would have responsive records. As CREW made clear in its response, we are committed to shining the brightest light possible on the VA’s treatment of veterans suffering from undiagnosed PTSD and we will not back down from these shameless excuses that the VA has offered.

More here.

An Interesting Persepctive From An Historian...

In today's Post:

Giving Americans back their history may not rank with ending the war in Iraq or balancing the budget, but it should be high on the to-do list of the next president. Our declassification system has broken down. Historians are waiting an average of seven years for replies from presidential libraries to their Freedom of Information Act requests. The White House cannot locate millions of e-mail records created during the months immediately before and after the 2003 invasion of Iraq.

The problem goes far beyond the Bush administration or its immediate predecessors. Tens of thousands of pages of previously declassified top-secret documents that I read and photographed two years ago at the Naval Historical Center at the Washington Navy Yard, while researching a minute-by-minute narrative of the 1962 Cuban missile crisis, were closed to researchers in March pending an indefinite security "review." The ostensible reason for pulling the records is the 1999 Kyl-Lott amendment that requires the rescreening of millions of documents for supposedly sensitive nuclear secrets. But it is difficult to explain why the Navy waited nearly a decade before acting.

More here.

Anonymous Donors & FOI: A Tough Issue

A nice look at a contentious issue:

With only so much taxpayer funds available to pay for a lengthy wish list of capital projects, the town is increasingly relying on the generosity of a wealthy citizenry to fund everything from a proposed Byram pool to improvements at the municipal golf course.

Some gifts have come with a catch, with the donors requesting their anonymity from the town. A number of elected officials acknowledge that the practice could raise questions about transparency and donors currying favors. Most say the benefits outweigh the risk with so many projects competing for funding and limited funds to go around, however.

"I think from my point of view there's a tremendous list of things that need to get done and we live in a community where there are so many generous citizens who are committed to making Greenwich better, and they deserve our gratitude and our respect," Selectman Lin Lavery said.

Lavery, who promised during her campaign to champion a new public swimming pool in Byram Park, received $100,000 in commitments from private donors for a site survey and for the project's initial design. The donors' names have been a tightly guarded secret by Lavery, an ardent supporter of public-private partnerships from her days as president of the nonprofit Junior League of Greenwich.

"For some people, they like anonymity because it protects them from excessive requests," said Lavery, who also doesn't want to release any names until the money is actually spent on the project. "So there's no point publicizing the donor who has made a commitment but has not yet made the donation."

Some in town government are discouraging the practice of withholding the names of donors and said it could set a bad precedent.

"My personal opinion is that it's preferred to know who the donor is, so there is no conflict of interest," said Pamela Frederick, chairman of the Representative Town Meeting's Finance Committee.

Frederick said she realized that in the nonprofit world it is customary to receive anonymous donations but feels it inappropriate for the town.

More here.

Detroit Mayor Ordered to Move Forward With FOI Lawsuit

A Detroit judge has refused Mayor Kwame Kilpatrick's request to delay a Freedom of Information Act lawsuit by the Detroit newspapers until his criminal case has resolved.

Wayne County Circuit Judge Robert Colombo Jr. said Friday he allowed Kilpatrick to intervene to protect his rights but not to postpone proceedings. He says Kilpatrick and former Chief of Staff Christine Beatty will undergo depositions.

The Detroit Free Press and The Detroit News have sought depositions as well as the release of text messages between Kilpatrick and Beatty. The Free Press published excerpts of some messages in January.

More here.

Rhode Island FOI Reform?

Rhode Island's Senate has voted to strengthen the state's freedom to information law by requiring government agencies to respond to information requests faster.

The bill passed unanimously Thursday afternoon. It now heads to the House.

If adopted, Sen. Michael Lenihan's proposal would be the first major change to the state Access to Public Records Act in a decade. It would ban government agencies from forcing people who seek government documents to divulge their identities or reasons for seeking the information.

The bill would also require the government to respond to open records requests within seven days, instead of 10. Police departments would have to release basic information about arrests within 24 hours of receiving an inquiry.

Louisiana FOI Reforms Down In Smoke...

Louisiana's popular new governor speaks with forked tongue when it comes to openness?

A Senate panel defeated legislation Wednesday that would have dramatically increased the number of governor’s office records available for public scrutiny.

The state Senate and Governmental Affairs Committee voted 3-2 against approving the House-passed measure aimed at improving the state’s ranking as one of the worst in the nation when it comes to transparency of records in the governor’s office.

Proponents noted how much Gov. Bobby Jindal says he likes good rankings when it comes to disclosure laws and transparency.

But Jindal’s executive counsel Jimmy Faircloth told the panel that the administration favored a Senate bill that keeps more governor’s records off-limits to the public.

More here.

A Bit Off Topic, But Well Worth the Read...

A different tack on the need for a federal shield law: to protect the rest of the world from us...

Here.

Now THAT is some redacton....

From the ACLU's excellent work on the CIA files comes this gem:

After CIA Director Michael Hayden publicly admitted that the CIA has, in fact, waterboarded detainees, the agency could no longer cling to its last excuses for covering up the use of the very word “waterboarding” in CIA records. As a result, yesterday we obtained several heavily redacted documents in response to an ongoing Freedom of Information Act (FOIA) lawsuit brought by the ACLU and other organizations seeking documents related to the treatment of prisoners in U.S. custody overseas.

While the documents do, in fact, reveal the word “waterboarding” or some variation, they leave pretty much everything else to the imagination. The pages that haven’t been completely withheld (many of them contain the words “Denied in Full” instead of any actual content) have the clandestine blacked-out look that’s become a sort of trademark of this administration. This is my favorite: