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 12, 2013 3:30 PM

Press release from MLRC and NFOIC:

By Amaris Elliott-Engel, MLRC Legal Fellow

NFOIC’s third biennial joint study with the New York-based Media Law Resource Center (MLRC) showed a continuation of trends that are troubling to open government advocates.

Just as similar informal surveys in 2009 and 2011 had, the 2013 Open Government Survey found a substantial decline over the last two to five years in the amount of resources devoted by media organizations to FOIA and open government issues.

Additionally, the survey, based on perceptions of leaders of NFOIC member organizations and members of MLRC’s Defense Counsel Section, suggests there is a greater inclination among government officials for gaming the system than complying with existing disclosure and accountability laws. The study also showed a shared perception among both NFOIC members and the access attorneys that recent legislative changes were more often harmful to transparency and accountability rather than improvements.

Some 153 representatives of the two organizations participated in the 2013 survey. It showed a continuation of a trend reported two years ago in a prior survey of people in the field who see a decrease in legal resources being applied to FOIA and open government issues. This year 46.2 percent of surveyed MLRC attorneys ("media attorneys") said media organizations had decreased those legal resources substantially, while 35.6 percent of NFOIC representatives indicated the same.

In 2011, 23.37 percent of surveyed media attorneys reported that open government lawsuits had decreased substantially, while 25.5 percent of those surveyed from NFOIC reported the same.

Other results and findings of the jointly administered 2013 survey included these:

  • 46.2 percent of the surveyed media attorneys said media organizations had decreased those resources substantially, while 35.6 percent of NFOIC representatives indicated the same.
  • 24.6 percent of media attorneys said such resources had decreased slightly, while 25.4 percent of NFOIC representatives indicated the same.
  • 3.1. percent of media attorneys said the resources had stayed about the same in contrast to the 20.3 percent of NFOIC representatives who said such resources had stayed on the same level.
  • The numbers of respondents in both groups who view that such resources had increased slightly or increased substantially were closer in percentage.

More media attorneys than NFOIC respondents reported that interventions on behalf of media clients on open government issues has decreased:

  • 26.2 percent of media attorneys said such intervention has decreased substantially in the last two to five years, and 27.9 percent said such intervention has decreased slightly, while no NFOIC respondents found a substantial decrease and only 3.6 percent found a slight decrease.
  • The reason for the decrease in such legal action by media organizations is due to lack of funds or resources for litigation, 83.3 percent of media attorneys and 56.9 percent of NFOIC respondents said.
  • Another reason for the decrease is a decline in the kind of reporting that requires an assertive legal posture to access information, 29.3 percent of NFOIC respondents said and 13.3 percent of media attorneys said.
  • Only a small percent from each group said that legal actions by media organizations are not continuing to decrease.

A higher percent of NFOIC members reported seeing an increase in government efforts to comply with open government laws:

  • 10.4 percent of media attorneys said governmental compliance in providing access to citizens and to comply with open government laws had stayed about the same in the last two to five years, while 33.3 percent of NFOIC members had that view.
  • 32.8 percent of media attorneys said such governmental compliance had decreased slightly, but 20 percent of NFOIC representatives saw a slight decrease.
  • Those freedom of information advocates and media attorneys who said that such efforts had stayed about the same were closer in percentage: 34.3 percent of media attorneys and 31.7 percent of NFOIC members said compliance efforts had stayed on an even keel.

Media attorneys and NFOIC attorneys were also surveyed on which types of government agencies are the most difficult for private citizens and journalists to get information from:

  • Municipal government: 47.5 percent of media attorneys and 38.6 percent of freedom of information professionals said municipal government is the most difficult to obtain information from.
  • County government: 27.9 percent of media attorneys and 22.8 percent of freedom of information professionals said county government is the most difficult to obtain information from.
  • State government: 31.1 percent of media attorneys and 29.8 percent of freedom of information professionals said state government is the most difficult to obtain information from.
  • Federal government: 29.5 percent of media attorneys and 12.3 percent of freedom of information professionals said federal government is the most difficult to obtain information from.
  • Quasi-public governmental bodies: 24.6 percent of media attorneys and 45.6 percent of freedom of information professionals said quasi-public governmental bodies are the most difficult to obtain information from.
  • Public universities: 29.5 percent of media attorneys and 43.9 percent of freedom of information professionals said public universities are the most difficult to obtain information from.
  • Police departments: 45.9 percent of media attorneys and 57.9 percent of freedom of information professionals said police departments are the most difficult to obtain information from.
  • Local school boards: 21.3 percent of media attorneys and 49.1 percent of freedom of information professionals said local school boards are the most difficult to obtain information from.

Media attorneys and NFOIC members were on the same page that state government agencies tend to the most transparent:

  • 53.1 percent of media attorneys said state-government agencies were the most transparent, while 57.8 percent of NFOIC respondents reported the same.
  • Municipal-government entities are the most transparent and cooperative, according to 30.6 percent of media attorneys and 44.4 percent of NFOIC respondents.
  • County governments are the most transparent according to 20.4 percent of media attorneys and 35.6 percent of NFOIC members.
  • The federal government is the most transparent governmental agency, according to 22.4 percent of media attorneys and 17.8 percent of NFOIC respondents.
  • Police departments are the most transparent governmental agencies, according to only 8.2 percent of media attorneys and 20 percent of NFOIC respondents.
  • Local school boards are the most transparent governmental agencies, according to only 4.1 percent of media attorneys and 11.1 percent of NFOIC respondents.
  • Public universities are the most transparent governmental agencies, according to only 8.2 percent of media attorneys and 8.9 percent of NFOIC respondents.
  • Finally, quasi-governmental bodies were reported to be the most transparent by only 4 percent of attorneys and by no NFOIC members.

Both media attorneys and freedom of information professionals reported at a high rate that "emerging forms of public data and proactive disclosures" have not made their services and resources less needed over the last two to five years:

  • 20 percent of media attorneys said their services are much more needed with the rise of public data and proactive disclosure by governmental entities, while 33.9 percent of NFOIC correspondents indicated the same.
  • 18.3 percent of media attorneys said their services are slightly more needed, while 21.4 percent of NFOIC respondents indicated the same.
  • Fifty percent of media attorneys said there was no change, while 41.1 percent of NFOIC respondents indicated the same.

More NFOIC respondents than media attorneys reported that enforcement mechanisms for noncompliance by governmental officials with open government rules were ineffective:

  • 33.9 percent of NFOIC respondents said enforcement measures were not effective at all, while 16.4 percent of media attorneys reported the same thing.
  • 32.2 percent of NFOIC members said enforcement measures were somewhat effective, while 42.6 percent of media attorneys reported the same thing.
  • The number of media attorney and NFOIC respondents who said enforcement measures were somewhat ineffective was very close with 21.3 percent of media attorneys reporting that and 22.0 percent of NFOIC correspondents reporting that.
Other highlights of the survey include:
  • The majority of media attorneys and NFOIC respondents said that "disingenuous rationalization" was the most common reason why government officials deny access to information. Interpretations of statutory language and "inappropriate game-playing" were the next most common reasons for governmental officials to deny access to information, those surveyed reported.
  • The media attorneys and NFOIC members agreed that the three most common obstacles presented by the government in accessing information are: the citation of invalid exceptions, lack of response or delayed responses, and unreasonable fees.
  • Many more media attorneys than NFOIC respondents said the changing landscape of government access has affected the quality of news coverage in their area: 49.2 percent of media attorneys compared to 25.0 percent of NFOIC members.

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December 6, 2013 12:54 PM

From Reuters: Dec 5 (Reuters) - A long-running battle over whether the top U.S. securities regulator should release records about its supervision of Wall Street's arbitration process is about to go another round, this time with input from a vocal consumer advocate.

For nearly four years, a group of lawyers has been pushing the U.S. Securities and Exchange Commission to release documents about its oversight over how the Financial Industry Regulatory Authority selects arbitrators who hear legal disputes between brokerages and investors.

Visit Reuters for more.

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November 15, 2013 10:45 AM

From Firstpost: Search giant Google Inc pushed the US government to be more open about its online spying on Wednesday in the first such testimony before Congress by a major technology company since a series of news leaks began in June.

In written testimony submitted to a US Senate judiciary subcommittee, a Google executive said that the official secrecy was contrary to American values and hurting US economic interests.

Visit Firstpost for more.

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November 6, 2013 11:09 AM

From NFOIC: COLUMBIA, Mo – Do you know which industries spend the most to influence politics in your state?

If not, or even if you think you have an idea, you might be in interested in a report by Mother Jones staffers Alex Jones and Tasneem Raja. Using data on political contributions during the 2012 election cycle that was compiled by Followthemoney.org, the pair produced an interesting report and state-by-state map.

Although it is based on contribution data from the prior election cycle, you might find it interesting while studying and analyzing election results.

Please visit Billmoyer.com for more.

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October 4, 2013 9:15 AM

From Project on Government Oversight: With the government shutdown in full swing, you sort of expect these messages, but actually receiving them is still surreal:

"Out of Office Reply: Due to the government shutdown, OSC is currently closed. I will respond to your email message when OSC reopens. Thank you."

The OSC is the Office of Special Counsel, and it’s responsible for fielding complaints about waste, fraud, and abuse in the federal government, along with protecting our nation’s whistleblowers. But with watchdogs such as the OSC out of the office, who’s watching the “essential” employees, contractors, and industry?

During the shutdown, furloughed employees are not allowed to volunteer at their jobs, even if they want to. We spoke with Special Counsel Carolyn Lerner and she said, “Unfortunately, we are only able to follow up on disclosures of substantial and specific dangers to public health and/or safety.” She added, “We have cases of potentially millions of dollars in taxpayer waste that are just sitting now.” The OSC just had a record-breaking year of results, working incredibly efficiently to issue more corrective actions than ever before. The Project On Government Oversight’s Director of Public Policy Angela Canterbury said, “At a time when we should be celebrating more accountability thanks to the OSC, instead Congress has left taxpayer dollars and civil servants completely vulnerable to wrongdoing.”

Visit Project on Government Oversight for more.

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October 4, 2013 9:04 AM

From National Journal: Thursday morning's New York Times starts with a blockbuster story on Obamacare:

"A sweeping national effort to extend health coverage to millions of Americans will leave out two-thirds of the poor blacks and single mothers and more than half of the low-wage workers who do not have insurance, they very kinds of people that the program was intended to help, according to an analysis of census data by The New York Times."

It's a major revelation for the nation's hotly contested policy, but it wouldn't have come to light without publicly available census data. But right now, because of the government shutdown, that's data that you can't find online.

Visit National Journal for more.

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September 27, 2013 8:50 AM

From Center for Effective Government:  A recent report by the Government Accountability Office (GAO) found that the Office of Government Information Services (OGIS) doesn't have a plan for conducting comprehensive reviews of federal agencies' Freedom of Information Act (FOIA) policies or their compliance with the law.

Oversight of agency FOIA implementation and assistance for people using the law are vital to guarantee that this fundamental aspect of government transparency operates effectively. Indeed, such oversight and assistance were the purposes for which Congress passed the 2007 law creating OGIS within the National Archives and Records Administration. In response to persistent concerns about agency non-compliance with FOIA and difficulties facing requesters, the new office was established as a "FOIA ombudsman" and tasked with assisting the public in using the law to access information. But it is not obvious that Congress necessarily intended for OGIS to conduct comprehensive reviews, as GAO assumes, or that such an approach is necessary for OGIS to exercise effective oversight.

Continue >>

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September 6, 2013 2:31 PM

From OpenTheGovernment.org: Be on the lookout for the upcoming release of the latest version of our Secrecy Report. As regular readers may know, this report includes multi-year tracking and analysis of indicators of openness and secrecy in the federal government. Among the indicators included in the report are: national intelligence spending, responses to Freedom of Information Act (FOIA) requests, classification and declassification, and more.

This year's report will also include an explanation of how some of the revelations made as a result of documents leaked by Edward Snowden throw serious doubt on the validity and meaningfulness of the numbers the government releases about the size and scope of surveillance programs. It will also include what we now understand to be the possible breadth and scope of the National Security Agency's communications surveillance programs as a result of these leaks.

Additionally, this year's report will include a special section outlining specific steps the Administration should take to kick-start a real move towards openness. Similar to results from our prior years’ Secrecy Report (PDF), this year's will show that, while there has been some reduction in secrecy in the federal government, the change is slow. The steps included in our special section are targeted at creating rapid change that would translate into a more open, efficient, and accountable government.

Visit OpenTheGovernment.org for more.

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September 3, 2013 12:30 PM

From The Blog of Legal Times: 

The U.S. Court of Appeals for the D.C. Circuit ruled today that records of visitors to the White House were off limits to requests under the Freedom of Information Act (FOIA). Allowing public access to the information would circumvent Congress' intent to give the president discretion to keep his appointments calendar secret, the court said.

The unanimous three-judge panel, however, did affirm a federal district trial judge's finding that the public could submit requests for visitor records related to other agencies housed within the White House complex, such as the Office of Management and Budget.

Tom Fitton, president of Judicial Watch, the group that sued the U.S. Secret Service for access to the records, said the ruling "punched another hole through FOIA." He said the group's lawyers were weighing whether to ask the full D.C. Circuit to hear the case or to pursue a petition in the U.S. Supreme Court.

Continue >>

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August 30, 2013 9:29 AM

From The Washington Post: U.S. spy agencies have built an intelligence-gathering colossus since the attacks of Sept. 11, 2001, but remain unable to provide critical information to the president on a range of national security threats, according to the government’s top-secret budget.

The $52.6 billion “black budget” for fiscal 2013, obtained by The Washington Post from former intelligence contractor Edward Snowden, maps a bureaucratic and operational landscape that has never been subject to public scrutiny. Although the government has annually released its overall level of intelligence spending since 2007, it has not divulged how it uses the money or how it performs against the goals set by the president and Congress.

[. . .]

Lee H. Hamilton, an Indiana Democrat who chaired the House Intelligence Committee and co-chaired the commission that investigated the Sept. 11 attacks, said that access to budget details will enable an informed public debate on intelligence spending for the first time, much as Snowden’s disclosures of NSA surveillance programs brought attention to operations that had assembled data on nearly every U.S. citizen.

“Much of the work that the intelligence community does has a profound impact on the life of ordinary Americans, and they ought not to be excluded from the process,” Hamilton said.

Continue >>

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August 22, 2013 8:39 AM

From Investigative Reporters and Editors:  Freedom of Information Act advocates have consistently claimed that institutionalizing the right to information will benefit countries, particularly in addressing corruption.

They are not lying.

By comparing indices on corruption, human development, and years of having an FOI law across 168 countries, I found support to the assumption that having an FOI law leads to lower levels of perceived corruption.

Also, countries with older FOI laws tend to have higher levels of human development than countries with younger FOI laws or countries without them.

An intriguing link, however, is between ratings of FOI law effectiveness and the perceived level of corruption in a country.

This article is based on a longer study conducted under the supervision of Dr. Charles Davis, now the dean of University of Georgia's Grady College of Journalism and Mass Communication.

A version of the study will be presented at the Association for Education in Journalism and Mass Communication (AEJMC) Conference in Washington DC on August 10. The study also won first place in the Moeller Student Paper Competition of the association’s Mass Communication and Society Division.

Visit IRE for the rest of the post and read the longer study here (PDF).

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August 21, 2013 9:26 AM

From The Washington Post: A military judge on Wednesday morning sentenced Army Pfc. Bradley Manning to 35 years in prison for leaking hundreds of thousands of classified documents to the anti-secrecy group WikiLeaks.

Manning, 25, was convicted last month of multiple charges, including violations of the Espionage Act for copying and disseminating the documents while serving as an intelligence analyst at a forward operating base in Iraq. He faced up to 90 years in prison.

According to the military, Manning is required to serve one-third of the sentence before he becomes eligible for parole.

[...]

The decision was immediately condemned by the American Civil Liberties Union.

Visit Washingtonpost.com for the rest.

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