Exec Privilege Argument Rejected in New Jersey Gov E-Mail Case

A judge on Friday ordered Gov. Jon S. Corzine to publicly release hundreds of e-mail messages he exchanged with a state union leader he once dated.

In his ruling, Judge Paul Innes of State Superior Court said the messages were public records.

The decision is a blow to Mr. Corzine, who wanted to keep private the e-mail messages he exchanged with Carla Katz, a former companion, during state worker contract talks in 2006 and 2007.

“The relationship created a clear potential for conflict,” Judge Innes wrote. “These types of communications would be the sort of communications the Supreme Court felt the public had the right of access to understand and evaluate the reasonableness of the public body’s actions.”

Tom Wilson, the New Jersey Republican Party chairman, sued to make the e-mail messages public, contending that the personal relationship could have affected negotiations.

Mr. Corzine, a Democrat, contends that the e-mail messages are private under privileges accorded governors.

More here.

Judge Smacks Down Higher Records Fees in MO

A Cole County judge on Friday voided a fee increase for Missouri driver and motor vehicle records.

Several companies that routinely purchase the records sued the Department of Revenue earlier this month, alleging that the new fee structure violated open-records law and raised constitutional concerns.

On May 1, per-record fees rose to $7, from $1.25. The department also eliminated bulk discounts, which had allowed purchase of database files containing tens of thousands of records for fractions of a penny per record.

The lawsuit contends that the Department of Revenue violated the Sunshine Law by raising fees above the actual cost of providing the record. According to the law, fees must cover only the cost of copies and the staff time needed to provide the copy, not the creation or maintenance of the record.

Department of Revenue officials have said the fee increase is intended to finance the purchase of a new, multimillion-dollar database system. They argue, however, that driver and motor-vehicle records are not open records and thus not covered by the Sunshine Law.

Judge Richard Callahan slapped down the department’s defense in open court on Thursday, telling lawyers that he interpreted the phrase “public records” to include all government records, whether they were open to the public or not.

More here.

NC Bill Would Shift Fees...

Government agencies would be required to pay citizens' lawyer bills when they illegally deny access to public records, under a legislative proposal the sponsor says was spurred by several recent newspaper lawsuits.

The bill, introduced by Sen. David Hoyle, D-Gaston, would ensure citizens and groups receive money to cover their legal costs when they sue for access to public records under the state's open records law.

Hoyle, a longtime proponent of open government laws, said the measure would make government agencies think twice about denying access to public records.

"I think this may cause them to pause and say, 'Wait, why did I want this, and if I happen to lose in this situation, it could cost me some money,'" Hoyle said. "I think you'll see less litigation."

Many government organizations have opposed similar proposals in the past, citing fears that they will be hit with big legal bills for unintentionally blocking access to public records.

Current state law leaves legal fee awards up to a judge's discretion. That means courts can decide to award no money or part of the victors' legal tabs if it decides the agency had "substantial justification in denying access" or there were circumstances which would make awards "unjust."

The bill would make payment of "reasonable" legal fees, as determined by a judge, mandatory, Hoyle said.

More here.

New NC Bill Adds Fees, Ombuds

People or organizations who win public records lawsuits would be awarded legal fees to cover expenses for their litigation under a bill filed in the N.C. Senate.

Current law allows a judge to award reasonable attorneys fees to plaintiffs in a public records lawsuit, but doesn't require it. The proposed new law, sponsored by state Sen. David Hoyle, D-Gaston, would entitle successful plaintiffs to such fees.

"Give them the information," Hoyle said in encouraging local governments to be more willing to give the public access to records they collect. "I mean, it's public."

John Bussian, a lobbyist for the N.C. Press Association and an attorney for Freedom Communications, said that while judges currently can award reasonable attorney's fees, doing so is the exception to the rule.

"They make it effectively a long shot to recover legal expenses," Bussian said.

He said that most states either provide for the automatic recovery of legal fees in open government cases or provide criminal penalties for violations of such laws.

"North Carolina does neither one," Bussian said.

More here.

Good 'Ol Rocky Top!

It was touch and go all spring. Would Tennessee make public records more accessible to its citizens or put up more roadblocks?

This time, the people won out.

For the first time in a quarter century, public records will be more open to the people. That should translate into greater accountability from government.

The legislation, which Gov. Phil Bredesen is expected to sign into law, creates an Office of Open Records Counsel. The ombudsman will serve as a resource if citizens run into roadblocks regarding access to public records. The office will develop a reasonable fee schedule for records requests that take longer than five hours to fulfill.

It gives records custodians no more than seven days to respond to requests or explain why they need more time. Currently, there is no deadline for responding to requests.

A committee also will be created to consider problems such as excessive fees and long delays that people might encounter from less-than-helpful public servants.

More here.

The Missouri E-Mail Soap Opera: Chapter...Well, Who Knows?

Under investigation for alleged Sunshine Law violations, Gov. Matt Blunt's administration is retaliating with its own use of Missouri's open-records law.

When attorney general's investigators sought records from Blunt, he responded likewise. When Blunt was sued for those records, he renewed his own Sunshine Law demands. And when a lawmaker spoke poorly of the governor, Blunt's team quickly slapped him with an open-records request.

Blunt's point is that others are playing politics with the Sunshine Law. To any critic who questions his Sunshine Law compliance, Blunt is essentially saying: Put your records where your mouth is.

But several Sunshine Law experts, who track open-records disputes around the nation, describe Blunt's actions as both troubling and unusual.

"They're responding to an investigation in the executive office of the state of Missouri by sort of using public-records laws to create their own investigative powers, and I think that's a pretty inappropriate use of public records laws," said Charles Davis, executive director of the National Freedom of Information Coalition, based at the University of Missouri-Columbia.

More here.

Louisiana FOI Bill Passes House

Legislation passed out of the state House of Representatives on Wednesday would put a time limit on how long the governor and his key staff get to keep their public records private.

House Bill 1100, as amended on the House floor, would allow the governor, his chief of staff and his executive counsel to keep their records confidential for up to three years.

State Rep. Wayne Waddell, R-Shreveport and sponsor of HB1100, said he is happy with the bill’s new language because it would require the Governor’s Office to keep its records and would open them within the governor’s term of office.

On the floor, Waddell commended Gov. Bobby Jindal on his legislative package for stronger ethics and a better image for Louisiana. Waddell said Jindal has said more than once that he wants transparency in every state agency.

“Members, we are now gold plated,” Waddell said. “It’s time that we become solid gold.”

Existing law allows for everyone in the Governor’s Office to keep the records they generate and use secret, as well as the employees of about 60 agencies that are considered part of the Governor’s Office, such as the Office of Civil Rights, the Pet Overpopulation Advisory Council and the poet laureate.

HB1100 would require everyone — except the governor, his two top advisors and their staffs — to make their records immediately available for inspection by the public.

Now THIS is a piece of FOI-driven reporting...

From a favorite former student at the Orange County Register:

What do $3.70 lattes, an Indian casino and a BMW dealership have in common?

An obscure California agency thinks they're all public benefits worth tax-free money.

The agency, the California Statewide Communities Development Authority, issued about $4.2 billion in tax free bonds in 2007, ranking behind only the states of California, Ohio and New York.

County supervisors and city council members statewide formed the agency. Last year, their political associations pocketed $4 million from it.

The Bay Area businessmen who staff it made even more. They collected $10 million.

For 20 years, they have operated out of the public view, using a public agency to help finance their special interests while siphoning off tax revenue for projects of dubious public value.

They have taken a public agency and made it a private benefit.

"This is the ultimate in invisible government," said Orange County Supervisor Chris Norby, who's been suspicious of the agency since he was a Fullerton City Councilman in the 1990s. "It's kind of the worst of both worlds," he said, "public and private."

More here.

A Secrecy-Laden Deal in Virginia...

A troubling article in the NYT today on a trend worth watching: secret deals for research between universities and those who fund them...

On campuses nationwide, professors and administrators have passionately debated whether their universities should accept money for research from tobacco companies. But not at Virginia Commonwealth University, a public institution in Richmond, Va.

That is largely because hardly any faculty members or students there know that there is something to debate — a contract with extremely restrictive terms that the university signed in 2006 to do research for Philip Morris USA, the nation’s largest tobacco company and a unit of Altria Group.

The contract bars professors from publishing the results of their studies, or even talking about them, without Philip Morris’s permission. If “a third party,” including news organizations, asks about the agreement, university officials have to decline to comment and tell the company. Nearly all patent and other intellectual property rights go to the company, not the university or its professors.

“There is restrictive language in here,” said Francis L. Macrina, Virginia Commonwealth’s vice president for research, who acknowledged that many of the provisions violated the university’s guidelines for industry-sponsored research. “In the end, it was language we thought we could agree to. It’s a balancing act.”

But the contract, a copy of which The New York Times obtained under the Virginia Freedom of Information law, is highly unusual and raises questions about how far universities will go in search of scarce research dollars to enhance their standing. It also brings a new dimension to the already divisive debate on many campuses over whether it is appropriate for universities to accept tobacco money for research.

More here.

Virginia Coalition Announces Awards

Two people will be honored with awards from the Virginia Coalition for Open Government, the group announced.

Leigh Purdum of Madison County will receive the group’s Laurence E. Richardson award for individual citizen contributions to open government after winning a court case against the Madison County Sheriff, according to a release from the group.

Lawrence Hammack of The Roanoke Times will receive the group’s media award for a series of stories he wrote on a former city councilman’s spending.

More here.

New Jersey Bill Bans Confidential Settlements

Taxpayers shouldn't have to sue to find out how much they are paying to settle lawsuits - lawsuits that are sometimes settled for big bucks because government officials botched their jobs.

But that's exactly what's been happening in the case of confidential settlements involving public agencies. The Press twice has gone to court - and won - to overturn the confidentiality provisions of settlements involving public agencies. Courts ruled in such cases that the public has a right to know what it's paying in settlements. But without a law, taxpayers were forced to hire a lawyer to pry these settlements open.

That unfairness would end, if a bill sponsored by state Sen. Nia H. Gill, D-Essex, Bergen, becomes law. Gill's bill, which cleared the Senate Judiciary Committee last week, would ban confidential settlements when a public agency is involved.

More here.

North Carolina Access: A Report Card

Good to see state-based evaluations of transparency like this report from North Carolina's John Locke Foundation -- thanks to Mark Tapscott for the heads up...

Seven state agencies earn failing grades, when it comes to making budget and spending information available online. Twenty of 22 agencies studied earned no better than a D-plus grade, according to a new John Locke Foundation Spotlight report.

The report assigns F’s to the departments of Commerce, Correction, Environment and Natural Resources, Insurance, Justice, Transportation, and the State Treasurer. The only state agencies to escape a D or F grade were the Clean Water Management Trust Fund, with a C, and the Department of Public Instruction, C-minus.

Those poor grades are not unique to state agencies. The JLF Transparency Report Card 2008 highlights transparency problems at all levels of North Carolina government, said report co-author Chad Adams, JLF Vice President for Development and director of the Center for Local Innovation. “The average grade for a state agency covered in this report is a D-minus,” he said. “No North Carolina city or school system in this report earns better than a C grade, and no county earns more than a C-minus.”

The report card is designed to spur improvement within state and local governments, Adams said. “This state, home to national banks that update their customers’ accounts instantly anywhere around the world, woefully lags in making spending transparent at every level,” he said. “North Carolina and its local governments need to do more.”

Adams and JLF Fiscal Policy Analyst Joseph Coletti evaluated the Web sites of 22 state agencies, North Carolina’s 10 largest cities, 10 largest counties, and 10 highest-spending school districts. Each earned a letter grade from A to F based on the “degree of difficulty” presented to citizens hoping to find line-item budgets, annual financial reports, and information about government contracts, grants to non-profit groups, and personnel data.

As a group, the cities earned the highest marks with an overall grade of C-minus. Counties earned an average D-plus grade; local school districts, D; and state agencies, D-minus.

The report noted some bright spots. The Department of Public Instruction, Community College system, and University of North Carolina system all earned B grades for presenting school enrollment and graduation rate information. The Clean Water Management Trust Fund earned a B for documenting its grants to nonprofits. The clean water fund, departments of Labor and Revenue, and the Office of State Budget and Management all earned B’s for presenting detailed budget information.

But 10 agencies earned more F’s than passing grades. The departments of Justice and Transportation earned F grades in every category.

More here.

Government Contracts -- A Market Approach

This is pretty cool stuff...

INPUT, the authority on government business, announced that it has opened its electronic library containing thousands of federal and state and local contract documents to the public.

“We have over three thousand government contracts and task orders acquired under the Freedom of Information Act (FOIA) available now with more added every day,” said Ashlea Higgs, senior manager, INPUT Network. “Government FOIA offices are overloaded and requests often take several months to complete. By making our library available, we hope to offload some of the volume of requests to FOIA offices and provide immediate access to these documents to citizens and organizations that have a need.”

By providing access to government contracts, INPUT expects to help government agencies and contractors make better decisions as it relates to government planning and acquisition. Contractors may get the benefit of understanding the work currently being performed on a contract as a means to better understand the needs of that agency.

Government contractors don’t have the luxury of waiting for the government to release an RFP to decide if they should bid,” said Higgs. “Having access to an existing contract prior to release of an RFP can help a company decide much earlier whether it has the skills and resources to pursue an upcoming contract.”

A Little Transparency Down On The Bayou, Please...

Gov. Bobby Jindal wants less sunshine for his office than the type of transparency that he touted on the campaign trail and that he used to call lawmakers into a special legislative session three months ago on the need for openness in government.

Jindal is opposing a bill that would require nearly all of his office to comply with the same public records laws as other state agencies. He cites a need to hide from the public papers and records, as part of executive privilege.

Other governors have opposed similar attempts at openness over the years. But they didn't campaign, as Jindal did, on ethics and cleaning up Louisiana's image. Jindal fails to mention that Louisiana ranks dead last on a list of the public's ability to scrutinize documents in the governor's office.

More here.

Somewhere in Iowa, a Government Official Wants to Charge You...

for reviewing records requests.

Not fulfilling them, mind you, but merely for processing them.

My pal Al Cross over at The Rural Blog has the scoop:

The latest proponent of this bad idea is Democratic Gov. Chet Culver of Iowa, whose office started charging such fees after The Des Moines Register made "two unusually large and unconnected requests for public e-mails" in March, Lee Rood of the Register reported last week. "The requests also came after the governor’s office had mulled for more than a year about rare requests for large numbers of public information that take a lot of agencies’ time to compile," Rood writes, quoting Culver General Counsel James Larew as saying that charging fees to retrieve public documents is supported by case law and has prompted requesters to scale back their requests, and the new fees were intended to “discipline” requesters, not restrain them. "The charges can be levied when a request for records is estimated to take more than three hour of lawyers’ time, Larew said."

This stinker of an idea is worth watching. As Al said, bad ideas like this have a way of germinating...

USDA Seeks the Mother of All FOIA Exemptions

Talk about attacking a molehill with a nuclear weapon...without public notice or debate, a provision secretly tucked into the Farm Bill Conference Report (Sec. 1619, "Information Gathering") nullifies a recent, major federal appeals court decision under the Freedom of Information Act that ordered USDA to make public large amounts of data crucial to monitoring the economic and environmental impacts of multi-billion-dollar farm subsidy and conservation programs.

Mulch -- a great blog on all things farm-y, does such a great job on this that I am just going to take you there...

Watching Them, Watching US

An interesting access question posed by a father in Colorado:

Every day, about 6,000 children take a bus to and from school in Greeley. On most of those buses are video cameras capturing their actions. The tape gives the district a tool to determine what to do if inappropriate behavior occurs.

Parents, however, aren't allowed to review the tape, and that leaves Mike Moskalski outraged. After his son was involved in a physical altercation on a bus in April and received a 10-day suspension from the bus, he wanted to review the tape.

Moskalski said his son was defending himself and did not start the fight. The other student received the same punishment. He wanted to see the tape to make sure. But Greeley/Evans School District 6 officials told him no.

"This is not really fair," he said.

Citing a federal student privacy law, the Family Educational Rights and Privacy Act, officials from Greeley-Evans School District 6 say they cannot release the footage from buses to the public.

District officials would not comment about any specific case.

District 6 began retrofitting buses with video cameras about seven years ago. About 80 percent of the district's buses are fitted with cameras, with a cost of about $1,200 for each vehicle.

"Bus safety is very important," said Wayne Eads, chief operations officer for District 6. "Cameras are a way to protect students, to monitor what happens."

He said to allow a parent to view any footage, the district would have to either get releases from the parents of the other children on the tape or digitally blur out their faces, both of which are not financially realistic.

"This is about protecting the child," Eads said.

But wait a minute...this is not really the sort of record protected by FERPA....and come to think of it, are there not school bus videos I have seen in any number of states made public by FOI?

Of course, if police are involved, that's another matter, like here. Or here.
Help! If you have examples, send them along!

The rest of this story here.

North Carolina Panel Urges Training...

Members of panel appointed by Gov. Mike Easley appears headed toward approval of a plan that would require training on the public records law for most state employees and improvements to government e-mail servers that would archive e-mails for a number of years.

However, a majority of the group expressed concern about creating a system that archived all government e-mails automatically and voiced support for allowing state employees the continued discretion to decide which of their e-mails should be preserved for posterity and which ones are zapped.

Though news reports of the administration’s public information officers and even Easley himself trashing public records triggered the panel’s creation, several of those the governor appointed to review the matter said Thursday state employees should be trusted to do the right thing.

More here.

More from 2008 FOI Summit

A former USA Today reporter facing fines for failing to reveal her sources for stories about the 2001 anthrax attacks said Saturday that news organizations need to go on the offensive in the fight to protect the First Amendment.

"As we all know, the news business is on a collective nervous breakdown," Toni Locy told a coalition of open-government and press groups. "It's time to stop running. It's time to turn and fight. If we don't fight for the First Amendment, who will?"

Locy, who now teaches journalism at West Virginia University, spoke at the annual convention of the National Freedom of Information Coalition.

She said the country needs a shield law that would protect reporters from having to reveal their sources.

"The First Amendment needs some help," she said. "In this environment that we're in now, it needs some help."

More here.

Idaho Citizen Wins FOI Award

Curtis Massood, owner of Canyon Outdoor Media, has been named the winner of the 2008 Max Dalton Open Government Award sponsored by the Idaho Newspaper Foundation.

Massood earned the award and an accompanying cash prize of $2,000 for his successful lawsuit against Ada County in which a judge said the county's e-mail storage system made it inaccessible for the average citizen. Massood has donated the prize to The Shepherd's Home, a children's group shelter in McCall.

The Max Dalton Open Government Award has been given each year since 1999 to a citizen or group judged to be an outspoken advocate of openness in either public records or public meetings on the state or local level.

More here.