FOI Advocate Blog

The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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December 10, 2013 10:47 AM

From Courthouse News Service: MANHATTAN (CN) - Two New York Times reporters sued the Department of Homeland Security for records on their interrogations at JFK Airport this year.

The DHS claims the records do not exist, though one reporter claims his interview was entered on a computer.

Mac William Bishop and Christopher Chivers sued the Department of Homeland Security in Federal Court.

Both filed FOIA requests for information about their questioning at the airport; both were brushed off.

Visit Courthouse News Service for more.

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December 6, 2013 1:03 PM

Press release from ACLU: SAN FRANCISCO – The American Civil Liberties Union and the Center for Popular Democracy today filed a lawsuit under the Freedom of Information Act (FOIA) to compel the Federal Housing Finance Agency (FHFA) to provide details about the agency's relationship with the financial industry and its efforts to block municipalities from using eminent domain to prevent foreclosures.

Banks have foreclosed on millions of homes, and vast numbers of homeowners remain at risk of losing their homes to foreclosure because their mortgages are "underwater," meaning homeowners owe more than their properties are now worth. Communities with large African-American and Latino populations such as Richmond, Calif., and Irvington, N.J., have been particularly hard hit.

"For years, communities of color across the nation were targeted by banks peddling subprime toxic mortgages, greatly contributing to the current foreclosure crisis," said Udi Ofer, executive director of the ACLU of New Jersey. "Now communities are responding by considering novel approaches to help save their neighborhoods. Municipalities should be able to consider all of their options."

[...]

The complaint, Alliance of Californians for Community Empowerment, et al. v. Federal Housing Finance Agency, was filed in the U.S. District Court for the Northern District of California. It was brought by the ACLU, the ACLU of Northern California, the ACLU of New Jersey, and the Center for Popular Democracy on behalf of a number of community groups across the country.

Visit ACLU for more.

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December 6, 2013 12:58 PM

From Courthouse News Service: SACRAMENTO, Calif. (CN) - The CIA properly handled a man's demand for records on his 1966 interrogation regarding telepathy and espionage, a federal judge ruled.

Phillip Mosier had sued the agency in San Francisco under the Freedom of Information Act last year, but his case was removed this past April to the Eastern District of California.

The complaint is sparse on details about the nature of the CIA's alleged interview with him nearly 50 years ago in Lebanon, Mo.

Visit Courthouse News Service for more.

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November 26, 2013 3:31 PM

From PC World: The Federal Bureau of Investigation should make public a legal opinion it used to justify a past telephone records surveillance program because other agencies may still be relying on the document for surveillance justifications, the Electronic Frontier Foundation argued in court Tuesday.

EFF lawyer Mark Rumold asked a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to order the FBI to disclose a 2010 legal opinion from the U.S. Department of Justice’s Office of Legal Counsel, telling the judges that the OLC report amounts to final policy that agencies are required to disclose under open-records law. The EFF filed a Freedom of Information Act request for the OLC opinion in February 2011 and later filed a lawsuit after the DOJ rejected its request.

Visit PC World for more.

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November 22, 2013 1:50 PM

From Courthouse News Service: SAN FRANCISCO (CN) - Immigration officials will no longer fight a lawyer who claimed that quality representation hinged on accessing the notes asylum officers took on his clients.

San Francisco-based immigration attorney Jeffrey Martins sued the U.S. Citizenship and Immigration Services and its director, Alejandro Mayorkas, as well as the Department of Homeland Security and then-DHS Secretary Janet Napolitano under the Freedom of Information Act. While immigration officials made good on some of Martins' recent requests, they specifically withheld the notes officers took at asylum interviews, contained in alien records known as "A-files."

Visit Courthouse News Service for more.

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November 22, 2013 1:36 PM

From Sunlight Foundation: Today the Sunlight Foundation filed its very first Freedom of Information Act (FOIA) lawsuit. In May 2013, we sent a FOIA request to the General Services Administration (GSA) requesting a copy of all contract notices that had been posted on FedBizOpps.gov since 2000. These notices would allow members of the press, researchers and our developers to analyze government spending patterns, to look for inaccuracies, corruption and waste.

FedBizOpps.gov is a government website where contracting opportunities and awards are posted. It also includes notices when something is sole-sourced without competition. However, most of these notices are archived soon after their posting and the FedBizOpps advanced search requires knowledge of the exact solicitation to really find what you're looking for. This prevents the public from researching the original solicitations when a contract goes bad. One notable example is Healthcare.gov. The Centers for Medicare and Medicaid Services originally signed a contract for “Enterprise System Development” back in 2007, which eventually came to include work on the recently-launched health exchange website. Now that the contract has come under scrutiny, many want to examine the original solicitation. Some smart Googling might bring it up, but historical data on this site is pretty difficult to find. Additionally, there's no machine readable bulk export option to allow for broad analysis of patterns in contracting over time.

Visit Sunlight Foundation for more.

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November 22, 2013 1:17 PM

From NFOIC:  A few state FOIA and local open government news items selected from many of interest that we might or might not have drawn attention to earlier in the week. While you're at it, be sure to check out State FOIA Friday Archives.

Minnesota high court: Business not subject to open-records laws

image of Access keyThe Minnesota Supreme Court ruling reversed a Court of Appeals decision in case involving an Ely newspaper. The Minnesota Supreme Court ruled Wednesday that a private business that contracted with a northern school district to renovate buildings isn’t subject to state open-records laws. The ruling means that Milwaukee-based Johnson Controls doesn’t have to reveal to Timberjay Newspapers of Tower, Minn., details of its subcontract with a Minnesota architectural firm to build schools in St. Louis County. The high court reversed the Appeals Court’s October ruling, which had been viewed as a victory for public access to government contracts.

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Vanderbilt rape records request denied again, Tennessee

Nashville officials on Thursday again denied a request for records related to the investigation of a June 23 incident in which four football players at Vanderbilt University are accused of raping an unconscious female student. The Tennessean and its attorney are weighing their response.

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N.M. Judge says state can keep audit secret

LAS CRUCES, N.M. (AP) — The state can keep secret an audit that prompted it to freeze payments to providers of mental health and substance abuse treatment, a state district judge ruled Thursday. Judge Douglas Driggers rejected a request by the Las Cruces Sun-News and New Mexico In Depth to order the Human Services Department to release the audit under state open records laws. But he did leave open the possibility of a new hearing in six months to see if more of the 300-page document can be released later.

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Clinton records trial delayed to Jan. 30, IA

CLINTON — A trial on the enforcement actions related to the city of Clinton not releasing records of closed sessions has been continued. In a summary judgment issued Tuesday, the city was found to have violated the state open records law in not releasing the records of a series of six closed meetings held regarding the lawsuit filed over the ambulance service billing practices. The Wednesday trial was to present arguments on the penalties and enforcement.

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Conservative thinktank wants emails of outspoken UNC law professor

The Civitas Institute, a Raleigh-based conservative group, has filed a public records request for emails and correspondence of Gene Nichol, a tenured University of North Carolina at Chapel Hill law professor who has been critical of McCrory Administration policies. The public records request for Nichol’s emails was reported Thursday afternoon by Sue Sturgis of the Institute for Southern Studies, a group which has closely tracked spending by Art Pope, a wealthy Republican donor serving as McCrory’s budget director. Civitas is funded almost entirely by a family foundation run by Pope.

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Another View: FOIA fixes would help, Michigan

A committee in the Michigan House has sent a bill making essential improvements to the state's Freedom of Information Act to the full chamber for consideration, likely later this year. That is good news for media organizations that fight battles to get public information on a regular basis. But it's even better news for citizens, who are entitled to see records that let them evaluate the quality of their government.

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PA local agencies may have violated law

Two local government entities may have violated the state's Open Meetings Law, also known as the Sunshine Act, related to how officials handled executive sessions in October. The Express documented how local government handled executive sessions during October. During that time period, Keystone Central School Board and Wayne Township's Board of Supervisors went into executive sessions during public meetings and the boards may have violated the Sunshine Act after potentially failing to offer proper explanation for the executive sessions, according to case law and a legal expert's interpretation of the law.

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Sterling cancels mediation hearing in FL public records case

A hearing set for this morning in a lawsuit involving a public records request for a town official’s emails was cancelled Wednesday afternoon.
Sterling Palm Beach had asked for mediation in hopes of resolving key issues prior to a Dec. 13 hearing involving documents related to lease negotiations for the Royal Poinciana Playhouse. However, Sterling cancelled the hearing, which was a request to set mediation. Calls to John Little, Sterling’s attorney, were not returned.

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Wyo. Supreme Court hears arguments in records case involving frack chemical trade secrets

CHEYENNE, Wyoming — The state Supreme Court heard arguments Wednesday over whether a trade secrets exemption in Wyoming's public records law may be invoked to shield from disclosure many of the chemicals the petroleum industry uses in hydraulic fracturing. The landowner group Powder River Basin Resource Council and environmentalists including the Wyoming Outdoor Council argued that individual ingredients in the various chemical products used during hydraulic fracturing can't be considered trade secrets. Therefore, they say, the information on file with the state must be disclosed to the public.

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Colorado couple sues town for records in February police shooting

The ACLU and a Castle Rock couple whose car was hit by a police officer's bullet while he was responding to a burglary in February are suing town officials for records related to the shooting and the officer's conduct. Town and police officials have repeatedly denied Michael and Susan Cardellas' open-records requests for documents detailing the internal investigation into the Feb. 21 shooting, according to the lawsuit filed Wednesday. The couple also wants information concerning Officer Terry Watts' conduct about 1 p.m. that day, when he fired his rifle at fleeing burglary suspects in a Ford Explorer.

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University of Central Florida ignores FOIA request

A federal judge has ordered UCF to release documents involved in a same-sex parenting study, but UCF has obtained legal counsel in efforts to block the release. More than 50,000 documents relating to the parenting study, which appeared in Social Science Research — a publication housed at UCF — have been requested, but not submitted.

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Journalism background expected to serve new asst. attorney general in Washington well

OLYMPIA – Washington State Attorney General Bob Ferguson announced on Monday that he has selected Olympia attorney Nancy Krier to serve full time as the office’s Open Government Assistant Attorney General. Prior to pursuing her law degree at the University of Washington, Krier worked several years as a reporter.

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CT lawmaker scrambles after political consulting revelations

Rep. Geoffrey Luxenberg tried to skirt open-government laws by directing a state legislative aide to communicate with him by text message to his personal cellphone or to a personal email account. The Democrat from Manchester also asked legislative staffers to draft “talking points” to help him and his “surrogates” in interviews with reporters. The staffers told him they couldn’t do that because the issue involved his private business, not his actions as a state representative.

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Idaho open government group objects to closed Twin Falls meetings

TWIN FALLS • Idahoans for Openness in Government filed a complaint against the city of Twin Falls Tuesday, claiming city officials have repeatedly violated the state’s open meeting law. The complaint stems from the city’s use of closed subcommittees. The panels are made up of fewer than four City Council members, plus city staff and citizens. The groups make recommendations on who should fill open city positions and on city finances, for example.

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November 15, 2013 10:30 AM

From The Washington Times: The Department of Homeland Security (DHS) must disclose its plans for a so-called Internet “kill switch,” a federal court ruled on Tuesday.

The United States District Court for the District of Columbia rejected the agency’s arguments that its protocols surrounding an Internet kill switch were exempt from public disclosure and ordered the agency to release the records in 30 days. However, the court left the door open for the agency to appeal the ruling.

Visit The Washington Times for more.

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November 14, 2013 3:29 PM

From Portland Press Herald: (Nov. 14, 2013) The Maine Supreme Judicial Court has ruled unanimously in favor of the Portland Press Herald’s appeal requesting authorities to release transcripts of 911 calls in a Biddeford murder case, opening the door on whether other 911 recordings are public record.

The decision overturns a ruling by a Superior Court judge earlier this year that releasing the transcripts of three 911 calls in the case against James Pak, 75, who is accused of killing two people on Dec. 29 and wounding a third, could interfere with the ongoing legal case against Pak.

[...]

Six groups joined the Portland Press Herald in the lawsuit, each filing amicus briefs with the Maine Supreme Judicial Court: The Reporters Committee for Freedom of the Press, the New England First Amendment Center, the Maine Association of Broadcasters, the Maine Freedom of Information Coalition, the Maine Press Association and The Associated Press.

Patrick Strawbridge, a lawyer who represented that coalition, called the decision “a substantial victory for access in the state of Maine.”

“The decision puts Maine within the mainstream of states that allow access,” he said by telephone Friday.

[...]

Thirty-nine states have no restrictions on the release of 911 calls or the information in them, according to the National Conference of State Legislatures.

Five states, including Maine, impose some restrictions. Six states keep 911 recordings confidential.

Kenneth Bunting, executive director of the National Freedom of Information Coalition at the University of Missouri School of Journalism, said state access laws regarding 911 tapes and transcripts are “all over the map.” The general rule, though, is that they are public.

“And they should be public,” he said.

Bunting said fights like these are a big reason the National Freedom of Information Coalition exists.

“The amount of advocacy by news media, who were once stewards, has been going down,” he said. “News organizations are less interested and less inclined to take these fights on. So when they do, it’s important.”

Bunting cautioned that the ruling may not necessarily last long. He said the Maine Legislature could proposed amendments to the state’s access laws that effectively reverse the decision. In Connecticut, he said, where news organizations have been fighting for access to 911 calls associated with the school shooting at Sandy Hook, lawmakers are discussing ways to keep those records confidential.

Visit Portland Press Herald for more.

The Maine Freedom of Information Coalition and the New England First Amendment Coalition are members of NFOIC. --eds

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November 11, 2013 9:22 AM

From TheCalifornian.com: A San Francisco law firm is jumping on a local bandwagon asking the California Supreme Court to review an appellate court’s decision that would ultimately close all conservatorship hearings to the public.

In a Thursday amici letter to the Supreme Court, Duffy Carolan of Davis Wright Tremaine LLP, argues the Sixth District Court of Appeals relied on a faulty understanding of the law to rule that all Lanterman-Petris-Short Act proceedings ought to be closed.

[...]

On Thursday, Carolan joined in with a petition of her own on behalf of the First Amendment Coalition, the California Newspaper Publishers Association, Los Angeles Times Communications LLC, The Center for Investigative Reporting and The McClatchy Company.

Visit TheCalifornian.com for more.

The First Amendment Coalition is a member of NFOIC. --eds

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November 8, 2013 10:56 AM

From NFOIC:  A few state FOIA and local open government news items selected from many of interest that we might or might not have drawn attention to earlier in the week. While you're at it, be sure to check out State FOIA Friday Archives.

Brevard corruption case morphs into public records battle

image of Access key(Nov 8, 2013) In hopes of avoiding involvement in a public corruption case, an economic development operation in Brevard County contends it is not subject to the state’s open records laws. The nonprofit Economic Development Commission of Florida’s Space Coast (EDC) in Rockledge has denied records requests, arguing that it is not a public entity. That debate is now in front of a judge, and the decision in the case could set a precedent in how economic development agencies are viewed in terms of Florida’s transparency laws.

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Florida investigation highlights public-records conflict

(Nov 8, 2013) An attempt by state insurance regulators to listen to a reporter’s un-aired recordings highlights potential for tension between legal protections for journalists and laws that guarantee the public’s right to access government records. Last week, WFSU reporter Lynn Hatter produced a story about people who were marketing health insurance plans in Tallahassee under the banner of the “Obamacare Enrollment Team.”

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Editorial: Expanded open records law key to restoring Penn State's credibility: Lowman S. Henry

(Nov 7, 2013) Penn State University is fighting efforts in Harrisburg to place it and the other state-related universities - Temple and Lincoln universities and the University of Pittsburgh -- under provisions of the commonwealth's Open Records law. This would require the folks in Happy Valley to provide the same transparency as other beneficiaries of the taxpayers' largess. As the botched search for a new president of the state's marquee institution illustrates, the need for such a law clear and compelling.

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Jacksonville judge hears arguments over public records access in Dunn case

(Nov 7, 2013) JACKSONVILLE, Fla. -- Circuit Judge Russell Healey heard arguments Thursday morning regarding his plan to delay the release of public documents in the Michael Dunn case until he can review them. Healey's decision followed the highly publicized release of Dunn's jailhouse letters, which many considered racially inflammatory.

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Documents show no actual threat of litigation

 

(Nov 6, 2013) Conflicting legal opinions on an issue don’t constitute a “real and tangible threat” of litigation for which a governing body may close a meeting, as the Richmond County Board of Elections did last week, two attorneys who work on behalf of open government said Wednesday. In response to an open records request for documents showing an actual threat of litigation, the city’s General Counsel Andrew MacKenzie and Senior Counsel Wayne Brown provided only legal opinions and existing law as to why the meeting was closed. What they provided didn’t show that, said David Hudson, attorney for Georgia Press Association and The Augusta Chronicle, and Hollie Manheimer, executive director of Georgia First Amendment Foundation.

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Big Isle committee rejects Hawaii Sunshine Law change

(Nov 6, 2013) KAILUA-KONA, Hawaii (AP) — The Big Island's council is poised to block an attempt to change Hawaii's open meetings law. A Hawaii County Council committee rejected a proposal from Maui County to create an exemption to the Sunshine Law, allowing more than two council members to meet without having to take minutes or make reports on the discussion, as long as meetings are open to the public.

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Elliot Spitzer ‘necessary party’ to FOIA action filed by former AIG officer, N.Y. App. Ct. Rules

(Nov 6, 2013) NEW YORK — Former New York attorney general Elliot Spitzer is a necessary party to a case in which a former AIG officer seeks emails generated from Spitzer’s private email account regarding allegations that AIG and its officers engaged in fraudulent reinsurance transactions, a New York appellate court has ruled. On Oct. 17, the New York Supreme Court, Appellate Division, remanded the case to a trial court for a determination of whether the court has jurisdiction over Spitzer.

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Judge finds Mississippi auditor defied her public records order; AG Jim Hood appeals to keep DMR records secret

(Nov 6, 2013) Acting in concert with the U.S. attorney for Mississippi's Southern District, the State Auditor's Office defied a court order by whisking away public records the Sun Herald was granted the right to review, the judge in the case concluded. Judge Jennifer Schloegel ordered the State Auditor's Office on Oct. 31 to return business records to the Mississippi Department of Resources so they could be copied for public inspection. Her ruling came in a lawsuit the Sun Herald filed almost 10 months ago to secure the records.

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Elbridge village denies request to make public resolution suspending fire chief

(Nov 6, 2013) Elbridge, NY - An executive with the state Committee on Open Government says the Village of Elbridge was wrong to deny Syracuse.com's request to see a resolution suspending the Elbridge fire chief that was voted on at a public meeting. Syracuse.com last week asked to read the resolution or the minutes of the Oct. 14 public meeting in which the village board voted to suspend Fire Chief Bill Champlin for 30 days pending a judicial committee's determination of his status with the fire department.

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University of Central Florida: Fraternity discipline records protected by FERPA

(Nov 6, 2013) FLORIDA — Responding to a public records lawsuit filed earlier this year, the University of Central Florida told a judge this week the school cannot provide student journalists unredacted records relating to Greek fraternities’ disciplinary hearings because the records are protected under a federal education privacy law. In UCF’s answer Monday to the lawsuit KnightNews.com, a student-run online news organization, filed in February, attorney Richard Mitchell said the school has given the news organization all of the records it is allowed to under FERPA, the Family Educational Rights and Privacy Act, even though reporters submitted “overly-broad” public records requests and did not follow university policies while doing so.

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PA. Office of Open Records sides with Times Leader

(Nov 6, 2013) The Pennsylvania Public Utility Commission has 30 days to provide an anonymous letter alleging wrongdoing by PPL during a 2011 storm response over to The Times Leader or file an appeal with the state’s Commonwealth Court, the state’s Office of Open Records has ruled. The letter, written by a person alleging to be a PPL employee though he or she did not sign their name, was used as the basis for a settlement agreement between the electric company and the state’s PUC. The settlement, approved by the commission last Thursday, included a $60,000 civil penalty levied against the Allentown-based utility.

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Nebraska lawmakers set to double-team records of arena board

(Nov 5, 2013) OMAHA — “We tried,” City Attorney Paul Kratz tells Nebraska Watchdog. Tried, but came up short nearly a decade ago, to open up the books of the powerful arena board. Now, following a series of reports by Nebraska Watchdog, at least two lawmakers are ready to take their shot. State Sen. Brad Ashford’s office is writing a “sunshine bill” which, according to Ashford, will be introduced by Sen. Ernie Chambers when the legislature returns in January.

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Investigator: Missing Utah AG records 'troubling'

(Nov 5, 2013) SALT LAKE CITY (AP) — Investigators working for a panel of Utah lawmakers have uncovered a "very disturbing pattern" of records missing from Attorney General John Swallow's work and personal computers, the panel's special counsel said Tuesday. Attorney Steven Reich told the House Special Investigative Committee that a large number of Swallow's electronic records, including emails, are missing.

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November 7, 2013 2:18 PM

From Standard Newswire: WASHINGTON, Nov. 6, 2013 /Standard Newswire/ -- Judicial Watch announced today that on October 17, 2013, thanks to Judicial Watch litigation, the public gained access to more than 57,000 pages of previously withheld documents from the Clinton Presidential Library related to the National Taskforce on Health Care Reform, a "cabinet-level" taskforce chaired by former First Lady Hillary Rodham Clinton during the first term of the Bill Clinton presidency.

The release of records came more than seven years after Judicial Watch filed an April 4, 2006, Freedom of Information Act (FOIA) request asking for "any and all" records pertaining to the Taskforce on Health Care Reform. On November 2, 2007, Judicial Watch was forced to file a FOIA lawsuit in the U.S. District Court for the District of Columbia against the U.S. National Archives and Records Administration to obtain the records (Judicial Watch, Inc. v U.S. National Archives and Records Administration (No: 1:07-cv-07-1987)).

Visit Standard Newswire for more.

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