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February 9, 2007 Vol. 5, No. 5

"A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty."

“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
-- Justice Louis Brandeis, 1928

TOP OF THE NEWS

“Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found."
-- Judge Alvin K. Hellerstein in Federal District Court in Manhattan, ordering the Pentagon and other agencies to release another series of documents and videos on the detentions at Abu Ghraib prison.

BIG NEWS FROM SUNSHINE WEEK 2007: Journalists Ben Bradlee, Tom Brokaw and Judy Woodruff are the honorary chairs of Sunshine Week 2007, March 11-17.

Bradlee is former executive editor and now vice president at large of The Washington Post. Brokaw is former anchor and managing editor of NBC Nightly News and now a contributing reporter and producer for NBC News documentaries. Woodruff is special correspondent for the NewsHour with Jim Lehrer and anchor of Conversations with Judy Woodruff on Bloomberg Television.

Sunshine Week is an open government initiative spearheaded by the American Society of Newspaper Editors. Entering its third year, the program encourages newspapers, broadcasters, online content producers, schools, libraries, civic groups and others to engage in discussions about the importance of protecting public access to government information and meetings. It is supported by a grant from the John S. and James L. Knight Foundation.

As honorary chairs, Bradlee, Brokaw and Woodruff will serve as spokespeople for Sunshine Week 2007 and support the initiative's efforts to empower and educate people about their right to know what government is doing, and why.

"Open government laws are absolutely essential to getting the information officials might prefer to see locked away in a safe," Bradlee said. "People may not think about Sunshine Laws every day, but when you need them, you need them. When you're trying to get information, you know that with these laws you're on the side of right. Sunshine Week is a good opportunity for journalists, the public and government officials to reinforce the importance of these laws and the foundations they're built on."

"If we present ourselves to the world as patrons of democracy, then we must be vigilant stewards at home of the oxygen that it requires - access to what our government is doing and the right to speak freely about it," Brokaw said. "Those who comprised what I call the Greatest Generation fought valiantly to preserve and protect those freedoms. It is up to us to ensure during Sunshine Week and all year that their sacrifices were not for naught."

"Government decision making in the United States should be as transparent as possible. Ours is a democratic system - of, by and for the people - and we ought to know what's going on," Woodruff said. "While I don't think you can create a blanket policy covering every situation, the default position should be for disclosure, for openness. We're a stronger society because information - good and bad - flows freely. Sunshine Week is a time to celebrate and protect that strength."

PERVASIVE SECRECY IN EAVESDROPPING SUIT: The Bush administration has employed extraordinary secrecy in defending the National Security Agency's highly classified domestic surveillance program from civil lawsuits. Plaintiffs and judges' clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies.

Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.

But now the procedures have started to meet resistance. At a private meeting with the lawyers in one of the cases this month, the judges who will hear the first appeal next week expressed uneasiness about the procedures, said a lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.

Justice Department officials say the circumstances of the cases, involving a highly classified program, require extraordinary measures. The officials say they have used similar procedures in other cases involving classified materials.

In ordinary civil suits, the parties' submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.

At the meeting this month, judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records.

In response, Joan B. Kennedy, a Justice Department official, submitted, in one of the department's unclassified filings, a detailed seven-page sworn statement last Friday defending the practices.

"The documents reviewed by the court have not been altered and will not be altered," Ms. Kennedy wrote, and they "will be preserved securely as part of the record of this case."

Some cases challenging the program, which monitored international communications of people in the United States without court approval, have also involved atypical maneuvering. Soon after one suit challenging the program was filed last year in Oregon, Justice Department lawyers threatened to seize an exhibit from the court file.

This month, in the same case, the department sought to inspect and delete files from the computers on which lawyers for the plaintiffs had prepared their legal filings.

The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted him to conduct unusual research.

"Sometime during all of this," Mr. Eisenberg said, "I went on Amazon and ordered a copy of Kafka's 'The Trial,' because I needed a refresher course in bizarre legal procedures."

ANTITERROR, IRAQ, ETC

“The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent."
-- The ACLU quoting a 1972 United States Supreme Court opinion in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), which re-emerged in the news recently after Justice Department lawyers blacked it out in filings in a Patriot Act case. See the evidence.

YOU'VE GOT MAIL: The American Civil Liberties Union and the Center for National Security Studies have filed three Freedom of Information Act requests seeking the immediate release of records related to President Bush's asserted authority to search Americans' mail without a warrant. The President claimed this unprecedented authority in a "signing statement" attached to a statute that expressly prohibits opening First Class mail without a warrant.

The groups say there are major facts that need to be made public, including whether and how often this asserted power has been used, whether people whose mail is searched are notified after the fact, and what policies have been put in place to conduct the searches.

"No president has the authority to decide on his own what the law is," said Anthony D. Romero, executive director of the ACLU. "From Pentagon and FBI surveillance of peace activists to unchecked NSA wiretapping, the executive branch is trampling on the privacy and free speech rights of Americans. The public needs to know if the president is undermining the democratic process by abusing his power and violating the Constitution."

The Freedom of Information Act (FOIA) requests were filed with the U.S. Postal Service, the Department of Justice, and the Office of the Director of National Intelligence. The requests seek any rules, regulations, policies, procedures, practices, or guidance from 2001 to the present concerning warrantless searches of mail originating from within the United States. The ACLU and CNSS are specifically seeking statistical data and any information on whether the government has authorized warrantless searches; who is allowed to conduct these searches; any actual or potential violations of policies on warrantless searches; and all legal analysis on the constitutionality of warrantless searches.

GENERAL FOIA NEWS

“One of the things that almost never works is secrecy--particularly secrecy in defense of dumbness."
-- Former Speaker of the House Newt Gingrich, speaking to ASNE

CREW SUES FOR WHITE HOUSE VISITOR LOGS: Citizens for Responsibility and Ethics in Washington (CREW) sued the National Archives and Records Administration (NARA) for its failure to adequately respond to CREW's Freedom of Information Act (FOIA) request for documents related to the destruction of Secret Service visitor record logs.

On September 27, 2006, CREW filed a FOIA request with NARA asking for communications with the Secret Service in which NARA ordered the Secret Service to stop destroying White House visitor logs. The Secret Service maintains the logs until they are transferred to the White House. CREW filed suit because NARA has refused to provide these records.

CREW became aware of NARA's order through a lawsuit CREW had filed against the Secret Service, requesting records of visits Jack Abramoff and Abramoff associates had made to the White House and the residence of the vice president.

In a related case, the Secret Service and the White House have claimed that all of the visitor records are presidential, not federal agency records and, therefore, are not subject to public disclosure under the FOIA. NARA is the agency responsible for ensuring that both federal agencies and the President comply with record keeping laws.

"NARA's blatant refusal to respond to CREW's FOIA regarding the destruction of important historical documents makes it clear that this administration is intent on keeping the public in the dark about how the White House is conducting the people's business," Melanie Sloan, executive director of CREW, said today. "What is the White House trying to hide?"

SENATE CONSIDERS A LITTLE WEB TRANSPARENCY: Several senators of both parties want to put more of their campaign and legislative information online.

Legislation introduced Jan. 9 would require senators to file campaign finance reports electronically, as other candidates for federal offices must do. The Senate Campaign Disclosure Parity Act (S. 223) is an exact copy of bills introduced in the previous two Congresses, but not did not become law.

"The Senate should catch up with the House, the president and the many senators who already voluntarily file electronically by passing this reform," said Sen. Russ Feingold (D-Wis.) in a statement.

Currently, political parties, political action committees, presidential candidates and candidates for the House are required to file electronic finance reports with the Federal Election Commission.

FOI AT WORK: BEHIND THE LEAK INVESTIGATIONS, AMBIVALENCE: A lack of cooperation from one or more intelligence agencies led the FBI to abandon several recent criminal investigations into leaks of classified information to the press, records obtained by The New York Sun indicate.

In January 2005, a top FBI official asked the Justice Department to close three pending leak inquiries because the "victim agency" repeatedly refused to assist the probes. The FBI's contact at the agency "has been uncooperative with the investigating field office and on numerous occasions failed to return phone calls or provide the case agent with requested documents pertinent to the investigation," the memo said, adding that the agency "cancelled personnel interviews, security briefings and meetings at the last minute and failed to reschedule for another time."

"None of the cases can proceed without the cooperation of the substantive unit at the victim agency, therefore the FBI considers all logical leads covered," the FBI official wrote. Within days or weeks, the cases were closed.

The memo, which was among more than 300 pages of leak investigation files released to the Sun this week under the Freedom of Information Act, was heavily redacted by the FBI, which removed the name of the writer, the identity of the intelligence agency involved, and nearly all details about the alleged leaks.

The documents provide a rare window into the Bush administration's effort to combat leaks of classified information that the administration has said are damaging national security in wartime. "At some point in time, it would be helpful if we can find somebody inside our government who is leaking materials, clearly against the law, that they be held to account," the president said at a press conference last month. "Perhaps the best way to make sure people don't leak classified documents is that there be a consequence for doing so."

SCIENTIFIC CONTROLS

THEY BLINDED US WITH SCIENCE: Scores of federal scientists say they have been pressured to tone down scientific findings related to climate change, two nonprofit advocacy groups reported Tuesday.

In a report presented to the House Oversight and Government Reform Committee, the groups said scientists had been pressured by government officials to eliminate phrases like "climate change" and "global warming," and in some cases had seen their findings changed.

The Union of Concerned Scientists and the Government Accountability Project said their report was based on a questionnaire sent to scientists in several agencies, plus 40 "in-depth interviews."

They said broad political interference in climate research has increased during the past five years, and urged Congress to protect climate scientists from intimidation. Separately, three senators said Tuesday they plan to introduce measures to cut carbon dioxide emissions.

"We need reforms that affirm the right of scientists to fully communicate their research and to blow the whistle when important science is suppressed," said Francesca T. Gifio, an official of the Union of Concerned Scientists.

The committee's chairman, Rep. Henry Waxman, D-Calif., said "it appears there may have been an orchestrated campaign to mislead the public about climate change."

"Have they ever supported anything a Republican administration has done?" asked Rep. Tom Davis, R-Va., the former chairman of the committee. "They opposed the Vietnam War. They are against nuclear energy. They are against an antiballistic system. I think that's an agenda."

Nonetheless, Davis has joined efforts by Waxman to obtain more than 10,000 White House e-mails and other documents surrounding a 2003 incident in which Philip A. Cooney, a Council on Environmental Quality official, reportedly watered down a global warming report by the Environmental Protection Agency.

IN THE COURTS

AFFIDAVIT SECRECY UNDER FIRE: The Superior Courts in Los Angeles and Orange counties have for years allowed police to keep the only version of the sealed affidavit they use to obtain a search warrant without filing a copy with the court, a practice that defense attorneys said was rife with potential abuse...

Asked by a reporter, Los Angeles County Superior Court officials said this week that judges there also allowed officers to keep the sealed affidavits.

To get a search warrant, authorities provide a judge with an affidavit to convince him there is probable cause.

A defendant can challenge the affidavit when the case comes to trial, but a 1994 California Supreme Court ruling bars defense attorneys from reviewing the document if the judge has sealed it.

If a defendant challenges the affidavit, the judge reviews the document in chambers, in the presence of the prosecutor and the officer who swore out the affidavit. The prosecution team can advocate for its position, but the defense attorney is not allowed in the meeting. After reviewing the document, the judge determines whether police had probable cause.

Normally, a sealed affidavit is placed in the court file - which is a public record - and removed if someone asks to see the file. In an unknown number of cases, police, rather than the court, keep the affidavit.

That practice was disclosed when Anthony Andrew Galland appealed an Orange County judge's decision to deny his motion to suppress the evidence uncovered in a search. The appellate court ruled that police had no authority to keep the documents. Galland's drug conviction was overturned on grounds that his rights were violated because the judge failed to keep an adequate court record.

The Orange County public defender's office, which represented Galland and tried for more than 10 years to persuade Superior Court officials to change the practice, declined to comment. What is unclear is why no defense attorney had challenged the practice until then.

Laurence Benner, a professor at California Western School of Law in San Diego, said the 1994 California Supreme Court ruling - banning a defendant from a hearing in which the sealed affidavit is reviewed - limits the defendant's right to a fair trial. Allowing police to keep the affidavit adds a layer of secrecy and erodes the defendant's 4th Amendment right against unreasonable search and seizure, he said.

IN THE STATES

"It's not the public's meeting. It's the school board's meeting."
-- Hampshire County, W.Va. School board attorney Norwood Bentley From the First Amendment Center

THE PUBLIC CAN COME, IF THEY ARE LUCKY ENOUGH TO FIND OUT: Today's meeting of the partners who are deciding the fate of a controversial civic center is open to the public.

But that doesn't mean the public was invited. In fact, the public has not been notified of other meetings among the government, education and business institutions that have joined to build the Partnership Center, even though they all signed an agreement pledging to follow the state's open-government laws.

Despite the written agreement, some officials say they are under no obligation to provide advance notice of meetings or keep a record of the proceedings. Others say they aren't sure.

"My personal opinion is I don't know why it would be noticed," said Peter McCarthy, vice president for administrative services at Daytona Beach Community College and a member of the project's operating committee. "There are only two elected officials on the operating committee and neither one of them is from the same city."

The Partnership Center in Orange City is a collaboration between the college, Deltona, Orange City, DeBary, Volusia County and the Chamber of Commerce of West Volusia.

They have contributed land, money and time with the goal of building a center where people across the region can gather for graduations, conferences and concerts.

Early on, the center's cost was estimated at $23 million. But the project has stumbled. Not enough money has been raised. Now, the cost estimate is more than $27 million.

The idea almost died last month after Deltona decided it would not approve handing over part of its share. City leaders later changed their minds.

At a meeting Tuesday, financial backers appeared to want to renew the plan. They are scheduled to gather at 2 p.m. today at Deltona City Hall, 2345 Providence Blvd., to talk about what kind of building they now can afford.

FOI AT WORK: Former state Parole Board member Lary Zeno made lewd sexual remarks to a female state employee and had off-color jokes and nude photographs of men and women stored on his state-owned computer, according to an investigative report released Thursday.

Zeno, an appointee of former Gov. Mike Huckabee, resigned from the board in May amid the probe into what Parole Board chairman Leroy Brownlee said at the time was Zeno's professional conduct.

Huckabee, who left office Tuesday, had claimed an exemption to the state Freedom of Information Act in refusing to release the documents. His successor, Gov. Mike Beebe, released the investigative report Thursday afternoon after announcing earlier in the day he would drop Huckabee's appeal of a judge's order to make the documents public. Last spring, Huckabee denied media requests for the investigation report and for Zeno's letter of resignation, declaring the information "working papers" exempt from the FOI.

The Arkansas Democrat-Gazette sued Huckabee and the Parole Board for withholding the documents, and in June Pulaski County Circuit Judge Chris Piazza ordered that the documents be released.

FASTEST DESTRUCTION OF A PUBLIC RECORD EVER? A security video showing Atlanta Falcons quarterback Michael Vick surrendering a water bottle to a security screener at Miami International Airport was erased after The Atlanta Journal-Constitution requested it under Florida's public-records law.

The Jan. 17 video was part of the investigation into the water bottle with a hidden compartment that an initial police report said contained a "small amount of dark particulate" and an odor consistent with marijuana.

Authorities this week said lab tests showed no evidence of drugs, and the bottle is no longer considered evidence in an investigation. Vick was cleared by police of any wrongdoing.

In a report on its Web site, the Atlanta newspaper said it requested a copy of the video on Jan. 18 from the Miami-Dade Police Department, under the state's public-records law. Police spokesman Robert Williams said at the time that police had decided they would not release it because it was part of an open investigation.

On Jan. 23, after authorities said the case was closed, the newspaper said it again requested a copy of the video and was told that it had been erased.

Williams told the Associated Press yesterday that he had consulted with department attorneys about releasing a flash drive that contained video from a Transportation Security Agency camera at the airport. Those attorneys consulted with the TSA, which refused to release the contents of the flash drive because of security concerns and ordered that it be returned to the TSA, Williams said.

The matter became moot anyway, Williams said, because he then discovered that the investigating officer had erased the flash drive after being informed by the State Attorney's Office that there would be no criminal charges against Vick.

Williams said the newspaper would have to take up the matter of releasing the videotape with the TSA.

According to the newspaper, Williams wrote in an e-mail: "That information was shown to the State Attorney's Office and it was determined by them that no criminal act was committed, and no charges were filed. Therefore this video was deleted from the flash drive since it was not being used in a criminal case."

IN VERMONT, A CASE WORTH WATCHING: A recent judge's ruling on the South Burlington School Board's violation of Vermont's open-meeting law is the latest in a series of decisions that have upset free-speech advocates.

Judge Matthew Katz in December ruled that even though the board violated the law by holding an emergency, closed-door meeting to craft a goodbye deal with the then-superintendent, the board remedied its actions by holding a public meeting a few days later when it voted on the agreement.

Although he said that the board did not show proof that it complied with the law, Katz, as he did in a similar ruling in 2005, said it was unlikely that the board would violate the open meeting law in the future. He assigned no punishment to the board and left the plaintiff to pay for his legal fees. (The board, for its part, said in an opinion piece published by a local newspaper that had the case gone to trial, it would have proved it acted legally.)

The judge's action has free-speech advocates wondering what will deter other boards from meeting in secret and who will want to challenge their government when, even if in the right, they will have to pay their own legal costs.

VIRGINIA CITY CREATES FOI OFFICE: Acquiring information from city government could soon get easier for Suffolk residents.

The city plans to create an office that will handle requests for documents that are available to the public under the Freedom of Information Act.

Officials expect the office to open in March, and they hope it will make it easier for local residents to request and receive the records they're looking for.

A city employee who is trained in Freedom of Information guidelines will ensure that all requests get responses, and a city attorney will determine which documents don't have to be released.

The executive director of the Virginia Freedom of Information Advisory Council will train City Council on the Freedom of Information Act in March.

FOI AT WORK: CITY CAN'T FIND $1 MILLION: Harvey, Illinois, officials simply can't find records documenting how nearly $1 million was spent during Mayor Eric Kellogg's first year in office, according to a sworn affidavit.

The missing or incomplete records involve city payments made to Kellogg, his niece, his brother, friends, double-dipping city employees, local religious leaders and campaign contributors. Without the documents it's unclear exactly what those people did to deserve payment from the cash-strapped city.

An independent audit of Harvey finances during that first year of Kellogg's reign concluded officials didn't have a firm grasp on how much money the city had on hand or had spent.

"The city's cash accounts were not accurate by fund, nor were accounts reconciled against supporting detail," the audit found. "Accounting personnel failed to perform routine analyses and reconciliations that would alert management about possible missing transactions."

The audit also stated there was often no paper trail left to track city disbursements, and suggested officials start writing down when vendors were paid and why.

The acknowledgment by Harvey leaders that they can't fully explain how taxpayer money was spent comes a full year after the Southtown started requesting financial documents from the city under the Illinois Freedom of Information Act. The paper asked for information about a relatively small portion of the roughly $25 million believed spent by the city during the fiscal year after Kellogg's election in April 2003.

City officials essentially ignored the requests for information and later disregarded the Illinois attorney general's office, which urged them to comply. Last month, a Cook County judge ruled in the Southtown's favor in an lawsuit filed by the paper and ordered the city to turn over all the requested documents.

In a sworn affidavit submitted Jan. 17 in response to that court order, Harvey human resources director Roberta Lyles stated she had found only some of the documents that had been requested.

"As of this date, I am unable to locate the remaining documents and records that may satisfy the Freedom of Information Act requests at issue in the instant action," Lyles stated.

City records show that during Kellogg's first year in office, Harvey made payments to 393 different vendors. The payments varied from big-ticket expenditures for essential city services to a few thousand dollars paid to a novelties company for rulers, pens and erasers -- all emblazoned with Kellogg's name -- urging schoolchildren to stay off drugs.

The Southtown asked for information about payments to 80 of those 393 vendors. Ultimately, city officials said they had no information whatsoever about payments made to 23 of the vendors.

DELAWARE AG LOOKS AT DINNER CHAT: The state Attorney General's office is asking members of Delaware State University's Board of Trustees to provide sworn affidavits about a dinner some attended the night before the Jan. 11 regular board meeting. State officials are investigating the dinner in response to a complaint by government watchdog group Common Cause, which is accusing the Board of Trustees of violating Delaware's Freedom of Information Act.

The letter dated Jan. 23 from deputy Attorney General W. Michael Tupman asks each member who attended the Jan. 10 gathering at the University and Whist Club in Wilmington to detail "how they came to be invited to the dinner, what they believed the purpose of the dinner was and any subjects discussed during the dinner."

Tupman also asked which of their spouses attended or were invited to the gathering, who paid for the dinner and whether any members of the Board were reimbursed for time, travel or other expenses.

Trustees who were at the dinner said the Schwartz Center for the Arts was among the topics discussed that evening. The board voted 9-4 at the regular meeting the next day to spend $1.5 million for part ownership in the downtown Dover theater.

UNDER THE DOME: FOI LEGISLATION

SEEKING OPEN GOVERNMENT, BEHIND CLOSED DOORS: Open government is a theme of the House Republican agenda for the first month of the legislative session, but GOP lawmakers plan to talk about freedom of information behind closed doors.

After hearing complaints during last year's election campaign about how the legislature operates, including secret discussions by committees that craft budget bills, GOP lawmakers said they would consider ways to make the General Assembly more transparent.

In passing the state's Freedom of Information Act several years ago, the legislature exempted itself. House Republicans say they now plan to address the FOIA issue as it applies to the General Assembly, but they want to do so out of the public spotlight.

Instead, they plan to form an internal working group "to research best practices in other states with regard to public access to legislative information and activities."

House Majority Leader Wayne Smith said the activities of the internal working group would not be open to the public.

"When legislation is proposed, as is true with any legislation, that will be something that will run through the committee process, and those (hearings), of course, will be open to the public and available for comment at any time during the process," he said.

Republicans said the working group would be charged with making recommendations "to improve the transparency of the General Assembly operations," and that the GOP hoped to pass legislation this year.

YES, VIRGINIA, THERE ARE A FEW PRIVACY BILLS: Legislators have introduced a slew of privacy-related bills this year.

Many of them deal with requirements to remove personal information from documents that could be public under the Freedom of Information Act.

A search of the state's legislative Web site shows 64 bills relating in some way to privacy issues, including one that would ensure the anonymity of those who carry out state executions.

But most privacy bills this year seem related to the growing problem of identity theft, and are aimed at preventing identity thieves from finding targets within government and court documents.

For example, there's a bill to remove Social Security numbers from court documents and land records. Another would remove Social Security numbers from voter records before those records are sold to anyone in another state. A third just makes it generally illegal to make publicly available someone else's Social Security number, even if the number was gotten from public documents...

THE EXECUTIONER'S EXEMPTION PROPOSED IN VA: The identities of those who carry out executions would be kept confidential under legislation that advanced Friday.

The Senate Rehabilitation and Social Services Committee passed a bill to exempt the identities of "persons designated to carry out an execution" from the Virginia Freedom of Information Act and from becoming evidence in a court proceeding.

"It would protect those that have the certainly unpleasant professional responsibility of carrying out the orders of the court from having their identities and their information made available," said Sen. Thomas K. Norment, R-James City.

Virginia Press Association lawyer Craig Merritt said the bill was written so broadly that it could include everyone from the guard who transports a prisoner to the person who injects the lethal chemicals. There also would be no accountability in the case of a botched execution, he argued.

INTERNATIONAL DEVELOPMENTS

AN INTERESTING Q&A WITH ALASDAIR: FOI scholar Alasdair Roberts - the author of "Blacked Out," which recently won the National Academy of Public Administration's Brownlow Book Award, sits down with Blogger News for an interesting chat. Way to go, Alasdair!

NEW FOI LAW IN HONDURAS: IS IT ALL THAT IT WAS SUPPOSED TO BE? The Transparency and Access to Public Information Law (Ley de Transparencia y Acceso a la Información Pública), which was approved on 27 November 2006, was published on 30 December, in number 31,193 of "La Gaceta", the official record of Congress, with substantial modifications that may well limit its effectiveness.

Some of its articles and definitions seem to imply that the law will apply only to lower public servants, not to ministers, Congress members, nor to the presidents of the three branches of the state: the Executive, the Legislative and the Judicial branches. This is contrary to what was agreed upon during the debates of the law, which took into account the international norms defining who are considered to be public servants. With the final definitions contained in the version published in "La Gaceta", it is now unclear if citizens will be able to verify the salaries of ministers, Congress members and the heads of the three branches of the state.

As well, Article 39, which stipulates when the law will come into effect, states that only public information generated after the law comes into effect in 2008 will be subject to the norms of the law, which will make it impossible to investigate anything that took place before 2008. Honduran jurists have indicated that the addition of this brief proviso violates the conventions dealing with the fight against corruption, as well as international treaties on freedom of expression and access to information.

The published version also states that "information that undermines the governability" of the country will also remain confidential. The wording leaves a broad margin for the discretion of public officials in defining what would constitute information to be kept confidential on those grounds, since they will be able to argue that the information compromises national security without that term being clearly defined.

As well, Article 19, referring to the period of time until confidential information is eventually declassified, mentions 10 years as the period, which evidently contradicts Article 32, which refers to mechanisms for the "purging" of information from files after five years. Thus, there is a risk that when the declassification of previous confidential information is requested 10 years after the information was originally generated, the information will have already been purged, as provided for under Article 32.

The full text, in Spanish, of the law as published in "La Gaceta" can be seen here (Adobe/PDF file)

ON THE EDITORIAL PAGES

THE WASHINGTON EXAMINER BRINGS US A TRANSPARENCY TO-DO LIST: "House Speaker Nancy Pelosi made ethics reform a centerpiece of her first 100 hours, but there remains much hard work to be done before there is sufficient transparency and accountability of Congress to restore the confidence of the American people in their legislators.

With the emergence in 2006 of the strongly bipartisan Sunlight Movement that successfully pushed for passage of the Coburn-Obama Federal Funding Accountability and Transparency Act, The Examiner believes sunlight is indeed the best disinfectant for all three branches of government. It is especially so for Congress because our laws all begin there. Congress should move quickly on these five reforms:..."

ACROSS EUROPE, JOURNALISTS USING FOI: Over the next two years a ground-breaking decision by the council of ministers and the European Parliament will result in the biggest release of information held by governments to the public and the media since the creation of the European Union.

All 27 EU countries will disclose data revealing details of some ?100bn given in subsidies by the Eurotaxpayer every year to farmers, food companies, industrial regeneration schemes and the fishing industry, from the Black Sea resorts in Bulgaria and Romania to the Canary Islands and Madeira.

The decision is the result of a rare example of journalists cooperating with each other across Europe to bring pressure on the governments of member states, using national freedom of information laws...

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