Tennessee Series Generates Huge Response

From Editor & Publisher:

The Knoxville News Sentinel's open-meeting lawsuit against 20 current and former members of the county commission has struck a chord with readers.

Hundreds of them. Too many letters and e-mails to print.

It is the very response the American Society of Newspaper Editors might hope for as it concludes Sunshine Week, promoting open government at all levels.

"There is so much negative feedback in this business. Sometimes you get the feeling that everybody hates you and you never can get anything right," editor Jack McElroy said. "To latch onto something where people are supportive of you and enthusiastically so, it is really nice to feel."

The paper's lawsuit contends that Knox County commissioners made private deals before they appointed eight new members to fill term-limited vacancies Jan. 31 in a process steeped in small-town, good ol' boy cronyism and nepotism.

Three of the eight appointees had relatives on the commission, and 13 of the 19 commissioners either work for the county or have relatives that do. None abstained from voting as they filled the eight commission seats and four county offices following a Supreme Court order to recognize term limits adopted by voters in 1994.

It's illegal in Tennessee and most other states for members of a county commission or city council to meet in private to discuss public matters, except in limited circumstances.

But Tennessee's law has few teeth. News media groups, citizen groups and open government advocates are urging lawmakers to toughen the sunshine law. Among the proposals: Impose fines on public officials who close meetings or withhold documents. And last month, Gov. Phil Bredesen announced his plan to establish an ombudsman to help people denied access to public records.

Meantime, the News Sentinel's lawsuit may not be resolved for months. An initial hearing has yet to be set. And thenew commission appointments only run through 2008.

Sunshine Week Column for You....

In Sunday's Kansas City Star...

Sunshine Week is an occasion for thinking about the importance of access to governmental information — not the sexiest of topics, admittedly, but sometimes the things we take for granted have a way of sneaking up on us.

Every week is Sunshine Week at the National Freedom of Information Coalition, a nonprofit academic center at the University of Missouri School of Journalism. My job consists of helping a never-ending array of requesters with information requests languishing at all levels of government, from federal agencies to local boards.

Think that freedom of information is some special-interest fetish of the press? Think again...

While the Beltway Journalists Sing....

Josh Wolf rots in jail...

The SF Bay Guardian's Bruce Brugmann says it's a shame, and calls out Kurtz:

Marvelous. Simply marvelous. While ten of the l9 witnesses testifying in the Libby trial were singing journalists, and three of them were central to securing Libby's conviction, Howard Kurtz, the media critic of the Washington Post and the voice of the inside-the-beltway media establishment, did not raise any of the obvious issues and questions in this unprecedented mass outing of sources by journalists in federal court in Washington, D.C. It was a "spectacle that would have been unthinkable only a few years ago," as Adam Liptak put it rightly in the New York Times March 8.

Instead, one day after the Libby guilty verdict, Kurtz went after Josh Wolf, the longest jailed journalist in U.S. history for contempt of court, in his March 8 column headlined "Jailed Man Is A Videographer And a Blogger but Is He a Journalist?" Kurtz, who tosses softballs about every Sunday morning in his media show on CNN, hit Josh hard with a lead that said, "He is being cast by some journalists as a young champion of the First Amendment, jailed for taking a lonely stand heavy-handed federal prosecutors."

Then: "But Wolf's rationale for withholding the video, and refusing to testify, is less than crystal clear. There are no confidential sources involved in the case. He sold part of the tape to local television stations and posted another portion on his blog. Why, then, is he willing to give up his freedom over the remaining footage?"

And then he quoted, not a media lawyer nor a journalist with knowledge of
California law, but a professor who ought to be flunked out of law school (Eugene Volokh, a law professor at the University of California Los Angeles). Kurtz quoted Volokh as saying without blushing, "It's one thing to say journalists must respect promises of confidentiality they made to their sources. It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources. When something is videotaped in a public place, it's hard to see even an implied agreement of confidentiality."

To which I ask....whatthe?

FOI Reforms Move Out of Committee!

Big News out of Washington:

The House Oversight and Government Reform Committee today approved HR 1309, the Freedom of Information Act Amendments of 2007, sponsored by William Lacey Clay, D-MO, Todd Platts, R-PA, and Henry Waxman, D-CA.

The bill is intended to force broad changes in government agency performance and response to FOIA requests.

The committee also cleared two other open government bills, one overturning President Bush’s order that blocked release of presidential records, the other requiring disclosure of donors to presidential libraries. All are expected to be offered for floor vote within the next week.

Also next week, Sens. Patrick Leahy, D-VT, and John Cornyn, R-TX, will introduce the 2007 version of their OPEN Government Act. The major difference between the House and Senate bills may be the final section of the House bill, which creates a presumption of openness for government records and direct agencies to release information if they do not reasonably foresee that disclosure would be harmful.

In effect, this reverses the Ashcroft memo – withhold information if there is any legal basis to do so. This still stands as Justice Department guidance to all federal agencies. Rep. Lamar Smith, R-TX, who sponsored FOIA reform in the last Congress, introduced a bill identical to Clay”s except for this section. At Thursday’s hearing, Republicans tried but failed to strike this section.

Here’s what else the “Freedom of Information Act Amendments of 2007” does:

-- Put pressure on the agencies to meet the 20-working day response deadline by waiving search and copying fees if the deadline isn’t met.

-- Requires agencies to establish FOIA hotlines and request tracking systems.

-- Creates an independent ombudsman, located in the National Archives, to help requesters resolve disputes without resorting to litigation.

-- Establishes the requester’s right to recover legal fees if they obtain disputed records from an agency after filing suit.

-- Broadens the definition of a journalist for fee waiver purposes to include most freelancers and bloggers.

-- Mandates broader and more specific performance reporting to heighten agency accountability for service quality.

-- Direct agencies to indicate the specific exemption being cited at the location of any redaction in a document.

-- Makes clear that government records held by private entities are covered by FOIA.

-- Requires that any bill amending the Freedom of Information Act include a clear marker declaring that intent.

-- Directs the Office of Personnel Management to report on the adequacy of FOIA staffing.

He's Baaaaaaack.....

From the Coalition of Journalists for Open Government:

Once again, an urgent request for action in response to efforts by Sen. Jon Kyl, R-AZ, to criminalize the leaking – and publishing – of classified information.

Sen. Kyl first sought to attach to a data mining bill being considered by the
Judiciary Committee what can only be described as a backdoor approach to an official secrets act. When the bill was held over, at least in part because its sponsor considered the amendment unfriendly, Sen. Kyl withdrew it and then submitted a rewritten version as a floor amendment to Senate Bill 4, which would enact recommendations of the 9/11 commission. That bill could be voted on as early as mid-week.

The modified amendment is not as sweeping as the earlier version but it is still dangerous revision of the Espionage Act and its chill would inevitably extend far beyond the classified information included. The new amendment makes it a crime to leak or “publish” any classified information contained in reports provided to Congress. These required reports -- 28 in all -- are detailed in three statutes identified in the amendment. (A copy is attached.)

Even as modified, the amendment is a dangerous overhaul of the espionage statutes and dramatically lowers the burden that the government must meet in order to prosecute a government leaker. Instead of proving, as required by current law, that the individual has reason to believe the information could be used to the injury of the United States, the government would only have to prove the individual used the information "in any manner prejudicial to the safety or interest of the United States". This lower standard could lead to a chilling of daily communications between the government and the media.

In addition, amendment makes it a crime to “publish” any classified information in the reports. If one of these reports says that a particular US port is vulnerable because local officials have been negligent in providing adequate security, and that is reported in the local newspaper, the reporters and publisher could be prosecuted for informing local citizens that they may be at risk,

Once again, Sen. Kyl seeks to use the amendment procedure to avoid the give and take of hearing and debate and a full and thoughtful discussion of whether any new law involving leaks are needed.

From our soundings on the Hill, there is considerable concern that if the amendment is added to the 9/11 bill it could be approved by the Senate.

This is not the time to wait and see what happens. Please share this and impress on your members the urgency of raising all our voices.

Latest on Espionage Act stuff

From my pal Rick Blum for the Sunshine in Government Initiative:

The markup on S. 236 was postponed.

Senator Kyl dropped his original broad language yesterday afternoon and last night circulated narrower language that he intended to bring up. Feingold, the sponsor of S. 236, the data mining bill, postponed consideration of it until the next meeting. The narrower language is still problematic.

Here is the new language:

SEC. 4. PROTECTION FOR CLASSIFIED INFORMATION CONTAINED IN AN ANNEX TO A DATA MINING REPORT.

Except as specifically authorized by paragraph (b)(8) of section 3 of this Act, whoever, being an employee of the United States House of Representatives or Senate, or being entrusted with or having lawful possession of, access to, or control over, any classified information contained in an annex made available pursuant to paragraph (b)(8) of section 3 of this Act, and who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available such information to an unauthorized person, shall be fined under Title 18 of the United States Code or imprisoned not more than ten years, or both.

Delaware Bill Would Make Legislature FOIA-able

DELAWARE BILL WOULD OPEN LEG RECORDS: Republican lawmakers today unveiled new legislation to make the General Assembly subject to Delaware's Freedom of Information Act, although the bill carries no penalties for noncompliance.

In other "good government" proposals, G-O-P legislators presented a bill requiring candidates for public office to disclose any delinquencies on taxes or child support obligations, and proposed that live audio webcasts of House proceedings be carried on the General Assembly's Web site.

The bills were unveiled amid heightened scrutiny of legislative ethics and the secrecy with which the General Assembly now operates, including closed-door discussions of budget bills.

New FOIA Report Card Is Grim....

Fuel for the fire of FOIA reform....

Back in December of 2005 with the White House coming under increasing criticism for its secrecy, President George W. Bush ordered federal agencies to speed up their responses to requests under the Freedom of Information Act (FOIA).

A new FOIA report card by a coalition of journalists groups makes it clear that Bush's directive did not produce a "surge" in the response rate by the agencies.

The study by the Coalition of Journalists for Open Government concludes the Bush directive did nothing to speed up responses by agencies that have been systematically cutting back the personnel assigned to FOIA work, even as backlogs of requests grow and the cost of fulfilling requests increases.

"Requests remain heavily backlogged," the study says. "Requesters still have long wait times for a response from many agencies. And people seeking records and information remain less likely to get the information they seek than in the past."

The coalition assembled the FOIA performance reports from 15 Cabinet-level departments and 15 agencies dating back to 1998, when agency reporting was first required. The 13 agencies that had reported 2006 performance by Feb. 9 were also included in the study.

Overall, the groups said, FOIA performance remains at the lowest point since 1998.

One of the biggest problem is the growing backlog of requests. In 2005, the overall backlog was a record 31% of the requests, a percentage that was 138% above the 1998 level. And the agencies that have so far reported 2006 results are showing an even higher average backlog, the coalition said.

Here is a model worth looking into...

Open Congress is a brand-new project of the Sunlight Foundation and the Participatory Politics Foundation -- kind of a MySpace for legislation, or a Digg.com for Congress, if you will...

Check it out -- it's an amazing new participatory device, one that tracks all legislation, news about legislation, news on Congress the institution, and much more.

CD

Official Secrets Act is Back...

Well, a demon from the not-so-distant past has reared its ugly head again...

OFFICIAL SECRETS ACT REDUX

There's a new effort to create an Official Secrets Act, and this one is even more dangerous than Sen. Kit Bond's effort in the last session. Sen. Jon Kyl, R-AZ, plans to introduce an amendment to a totally unrelated bill when it goes to committee markup on Thursday. That bill, S 236, deals with data mining and has nothing to do with classified information

Kyl proposes to expand Section 798 of the Espionage Act of 1917 to make it a criminal act to communicate or publish any classified information "concerning efforts by the United States to identify, investigate, or prevent terrorist activity" and expand the penalty to 20 years in prison.

That's about as broad and vague as a piece of legislation can be. It would give the government tremendous power to silence its critics and to limit the debate and discussion on the techniques it elects to use in the war on terror.

THE TEXT

The proposed amendment would change 18 U.S.C. Sec. 798(a) to read as follows (Changes in boldface)

TITLE 18, PART I, CHAPTER 37 § 798

§ 798. Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes or
(5) concerning efforts by the United States to identify, investigate, or prevent terrorist activity” and shall be fined under this title or imprisoned not more than twenty years, or both.

MY TAKE:

This is a cheap imitation of the British "Official Secrets Act," and a poorly written one, at that. It criminalizes any disclosure of classified information, regardless of lack of intent, even lack of knowledge that the information was classified, and contains no recognition of any public interest in such disclsoures. The community of press freedom advocates -- and the institutional press of the United States -- should fight this as hard as they can. It is a disastrous idea.

FOI at work...

The Columbus Dispatch takes a look at school bus driver safety, thanks to FOI...

The state handed Robert R. Casey a license two months ago to drive a big yellow school bus and collect kids in Cambridge.

The 49-year-old had been convicted nine times for driving under the influence of alcohol, and once for public intoxication, between 1980 and 1990.

Anton Mantz, 50, has ushered schoolchildren around Newark since 1996. His six DUIs and a drug-abuse conviction from the 1980s went undetected.

In Bridgeport, along the Ohio River in Belmont County, John Knight, 36, is a substitute driver with a record that includes five DUIs, two of them as recent as 2003 and 2004.

"That’s ridiculous," said Doug Scoles, executive director of the central Ohio chapter of Mothers Against Drunk Driving. "That should be a red flag for the citizens of Ohio."

The safety of thousands of Ohio schoolchildren has been entrusted to more than 150 bus drivers with histories of drunken driving or drug abuse, a Dispatch investigation found.

The near-universal reaction of school officials when informed that they had hired drivers with checkered pasts: "We didn’t know."

State laws, practice and policies make it virtually impossible for school officials to review complete driving histories maintained by the state.

The shortcomings have placed more than 150 schoolbus drivers on the road who might otherwise have been barred from delivering children between their homes and classrooms.

The Dispatch checked the driving records of school-bus drivers in 36 counties in central, eastern and southeastern Ohio. The newspaper examined public records from municipal courts, the Ohio Bureau of Motor Vehicles and Nexis, a subscription service that collects public records across the country.

The newspaper found 167 drivers with DUI or drug-related license suspensions who drive, or drove recently, for 106 school districts, schools for the developmentally disabled and Head Start programs.

The majority have one drunken-driving conviction, most before 2000. But six drivers have three DUI convictions, and 14 have been nailed twice. The records of six other drivers reflect drug-related license suspensions.

The newspaper compared driving records to a state database that listed the names of bus drivers, as submitted by school districts last summer...

Minnesota Coalition, Blog now online

We're pleased to see that the Minnesota Coalition's web site is now looking quite lovely, and they have a blog, too!


Minnesota is in the process of revitalizing a pre-existing FOI group into an NFOIC-style coalition, and we applaud their progress!

CD

FOI Summit 2007: Seattle!

We've put together one heck of a show for you in Seattle -- FOI Central from May 11-12!

All the information is now online at our web site....

A cool new effort at Congressional sunshine...

From the Sunlight Foundation:

Today, the Sunlight Foundation is announcing the creation of the Open House Project, a collaborative and bipartisan effort on open government. The purpose of the project is to study how the House of Representatives currently integrates the internet into its operations, and to make public recommendations to its leadership on how to make the House of Representatives’ work more available to citizens on the Web.

“The Internet is an incredible vehicle for transparency, honest leadership and open government,” said Speaker Pelosi, in response to the project’s launch. “I am encouraged by this working group and look forward to recommendations on how the House can be as open and accessible to citizens as possible.”

The Open House Project working group will meet online via list-serv, blog and wiki. It is being led by Matt Stoller (of MyDD.com) and John Wonderlich (lead coordinator of the Congressional Committees Project on DailyKos) with Sunlight’s senior strategists Andrew Rasiej and Micah Sifry providing ongoing support.

The group, which includes renowned technologist Clay Shirky, Bush/Cheney 2004 eCampaign Director Mike Turk, Govtrack creator Joshua Tauberer, and leading blogger Markos Moulitsas-Zuniga of the Daily Kos, will be regularly consulting leaders in congressional process and the Internet as well as civically engaged citizens for their assistance in creating consensus on short-term reforms that can be implemented in the House. Expertise and research on many different aspects of Congress—ranging from video content, committee documents, and legislative support agencies, to lobbyist disclosure, and the use of structured information—will be integrated into a report to be presented to the Speaker of the House Nancy Pelosi in March.

A great idea. And some really interesting people involved.

FOI AT WORK: The Rehnquist Files

If you haven't seen it yet, Slate's Hot Document feature is a riveting look at a record unveiled from the dark recesses of government -- and FOIA almost always plays a key role. Today's offering:

The memos, released recently under the Freedom of Information Act, were written prior to the late jurist's Senate confirmation as associate justice of the Supreme Court in 1971 and as chief justice in 1986. (For previous Rehnquist "Hot Documents" gleaned from the release, see here and here.)

Today's memo (see below and on the following 11 pages) preceeded Rehnquist's first Senate confirmation. It addressed the question of whether Rehnquist, who was then working in President Richard Nixon's Justice Department, was a racist. That the issue even had to be raised gives you some sense of how abysmal Rehnquist's civil rights record was.

It's a heck of a read.

Post-Katrina Analysis, Thanks to FOIA

FOI AT WORK: In the neighborhood President Bush visited right after Hurricane Katrina, the U.S. government gave $84.5 million to more than 10,000 households. But Census figures show fewer than 8,000 homes existed there at the time.

Now the government wants back a lot of the money it disbursed across the region.

The Federal Emergency Management Administration has determined nearly 70,000 Louisiana households improperly received $309.1 million in grants, and officials acknowledge those numbers are likely to grow.

In the chaotic period after two deadly hurricanes, Katrina and Rita, slammed the Gulf Coast in 2005 Katrina making landfall in late August, followed by Rita in late September federal officials scrambled to provide help in hard-hit areas such as submerged neighborhoods near the French Quarter.

But an Associated Press analysis of government data obtained under the federal Freedom of Information Act suggests the government might not have been careful enough with its checkbook as it gave out nearly $5.3 billion in aid to storm victims. The analysis found the government regularly gave money to more homes in some neighborhoods than the number of homes that actually existed.

The pattern was repeated in nearly 100 neighborhoods damaged by the hurricanes. At least 162,750 homes that didn't exist before the storms may have received a total of more than $1 billion in improper or illegal payments, the AP found.

The AP analysis discovered the government made more home grants than the number of homes in one of every five neighborhoods in the wake of Katrina. After Rita roared ashore, there were more home grants than homes in one of every 10 neighborhoods.

A Troubling Idea....

From today's Yankton, South Dakota Press & Dakotan:

The cause of open government took a potential step backward Monday when House Bill 1201 advanced in Pierre.

The bill, which passed the House 60-7 and now moves to the Senate, creates an opening in South Dakota's open meeting laws by allowing two or more governing boards to meet in order to "provide information" or "observe" proceedings. According to the provision, if a quorum of members are present (or involved in a teleconference) for such a purpose, "it does not constitute an official meeting," therefore requires no public notice or agenda.

This is a bothersome development in the current atmosphere, in which many school districts are exploring the idea of consolidating or sharing services with neighboring districts. If HB1201 becomes law, the members of two boards could meet without the public's prior knowledge and away from media scrutiny. It would have impacts on other board and commission proceedings, too.

Look for this one to start making the rounds, as our elected leaders tell us that they are just saving time and money...plus, no one really cares if they get together and "provide information" without notice or public attendance, do they? Of course not! Heck, why burden our public officials with all of these onerous rules....

Broad theme here: "Trust Us."

Not this old boy....

A Huge Victory in Libby Case...

A huge victory for openness in the Libby trial. This was a courageous decision, even if it was a slam-dunk legally.

From Editor & Publisher:

News organizations praised a judge's decision Monday to release tapes of former White House aide I. Lewis "Scooter'' Libby's grand jury testimony, saying it would open a window into court proceedings.

U.S. District Judge Reggie Walton said he would make public the eight-hour recordings, which were played in open court as part of the Libby trial, even though he was worried that jurors could be influenced by outside media buzz.

Federal law supports the public release of evidence presented to a jury. But judges in high-profile cases occasionally have released only written transcripts or have delayed public disclosure until the trial's end.

"This is a victory for the public's right to know,'' said Karen Magnuson, president of the Associated Press Managing Editors and editor of the Democrat and Chronicle newspaper in Rochester, N.Y.

It's a Dam. It's Leaky. You Don't Need to Know...

An interesting piece by the excellent environmental reporter James Brugger in the Louisville Courier-Journal:

Back-pedaling on a promise to make Cumberland River flood maps widely available, the Army Corps of Engineers has settled on a strategy of providing copies to selected libraries downriver from the leaky Wolf Creek Dam.

David Hendrix, the corps official responsible for overseeing $309 million in repairs at the dam, said the libraries will be required to sign an agreement that they won't allow the public to take photos or otherwise copy the maps.aps.

My favorite quote:

Davis said it's public knowledge that there are population centers downriver from the dam.

"It doesn't take Osama (bin Laden) in a cave to figure this out."

Send me your greatest denial of 2006...

As part of Sunshine Week, a friend is seeking the worst, most outlandish, hilarious, sad, pathetic denials of FOI requests from 2006. Come on: I know all you FOI warriors out there have a story to tell!

Send your greatest hits to me at daviscn@missouri.edu

I'll make ya famous....

CD