The FOI ADVOCATE

Visit the new FOI ADVOCATE Blog, the official blog of NFOIC, in which we bring news of freedom of information developments. Join us there for FOI advocacy discussions.

March 31, 2007 Vol. 5, No. 6

"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.

FOI REFORM UNDER VETO THREAT: Open-government bills sped to House passage Wednesday as Democrats pushed to make President Bush and his executive branch more forthcoming about their actions. The White House struck back with veto threats.

Aided by substantial Republican support, the Democrats approved legislation to force government agencies to be more responsive to the millions of Freedom of Information Act requests for public documents they receive every year.

The House also easily passed bills to require donors to presidential libraries to identify themselves an issue as Bush prepares for his own library and to reverse a 2001 Bush decision making it easier for presidents to keep their records from public scrutiny.

Finally, lawmakers approved a bill to strengthen protection for government whistle-blowers. They cited the failure to expose faulty intelligence about prewar Iraq in expanding protections for national security officials. Employees of federal contractors, airport screeners and government scientists facing retaliation for objecting to political influences are also covered.

Prospects are good for the FOIA bill in the Senate, where it has bipartisan support. The other bills also need Senate action before they can go to the president.

The White House, citing the Bush's constitutional prerogatives, warned that the presidential records bill would be vetoed if it reached his desk. The White House issued a second veto warning on the whistle-blower bill, saying it was unconstitutional and compromised national security.

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.

NEW NSA STUDY ON WEB ACCESS: Federal agencies helped create the Internet, but most do not use it to inform the public about what they do, a study to be released today shows.

In 1996, Congress intended to keep government ahead of the curve by amending the Freedom of Information Act (FOIA) to require that agencies put more public information on their Web sites. Posting important and most-requested records online, the theory went, would burn through a raft of hard-copy FOIA requests, save money and eliminate waiting time.

But the new study by the National Security Archive, a nongovernmental research institute and library located at George Washington University, finds that 10 years after Congress passed "E-FOIA," agency Web sites distinguish themselves more for cyber-foot-dragging than for streamlined access.

A review of 149 federal agencies found that only 1 in 5 posts on its Web site all the records required and that even fewer -- 6 percent -- tell people how to request what does not appear there. Two-thirds do not provide indexes to their major records systems, or they provide guides that are so unclear they are worthless. Only 1 in 4 agencies includes an online FOIA submission form on its Web site.

This failure to comply with the law, advocates of open government say, amounts to another stiff-arm by the executive branch to Congress's demand for greater transparency.

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

THE PRIVACY OF GPS COORDINATES: You might call it morbid fascination, the way people slow down to take a long look at accidents. But it is also cautionary and informative.

In the same way, a lot of motorists might like to know about fatal accidents at dangerous intersections and hazardous freeway segments they use.

Such information is readily available, but the federal government won't let the public have it. It is part of a bigger problem with what critics call the National Highway Traffic Safety Administration's culture of secrecy.

The safety administration has routinely blocked access to all kinds of important safety information, including potential safety defects reported by the auto industry to the agency, according to safety advocates.

"The public has a right to know," said Joan Claybrook, president of the watchdog group Public Citizen and a former chief of the safety administration. "After all, the public is the one getting killed and injured."

To be fair, the agency gets sued from all sides, including by the auto industry trying to prevent disclosure of data. Federal privacy laws also limit what the agency can disclose. Nonetheless, some of the agency's actions seem dubious. Consider the issue of where fatal accidents occur.

R.A. Whitworth, whose Maryland-based company conducts highway safety research for attorneys, insurance companies and even government agencies, discovered a few years ago that federal regulators were collecting the global coordinates of fatal accidents and linking them to its database, known as the Fatality Analysis Reporting System, or FARS. The database is one of the most important kept by the federal government.

Almost by happenstance, Whitworth discovered on the agency's website in 2004 the geographic coordinates of fatal accidents. He immediately saw the value: He could create maps of accidents, providing insights into where they were occurring on any given day and under what conditions.

He downloaded the data to his computer, but a few days later it was gone from the website. He called the agency and explained that the data had disappeared and he would like the agency to repost it. Officials called the posting a mistake and said he should erase it from his own computer, he recalled.

Whitworth waited until the following year, to see if the agency would again mistakenly post the data. This time, it did not. So he filed a Freedom of Information Act request with the agency in September 2005. The request was denied.

The rejection letter said that "the disclosure would constitute a clearly unwarranted invasion of personal privacy." Exactly how a set of coordinates would invade a dead person's privacy was not made clear. Police routinely release the names of fatal-accident victims.

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

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

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

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

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

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

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

IT’S AMAZING, I KNOW, BUT CHENEY IS RESISTING ACCESS: An important legal ruling is pending over Vice President Cheney's refusal to disclose statistics on document classification and declassification activity. The Information Security Oversight Office, which is responsible for the policy and oversight of the government's security classification system, has asked Attorney General Alberto Gonzales to direct Cheney's office to disclose these statistics.

Cheney's office provided the information until 2002 but then stopped doing so, J. William Leonard, the director of ISOO, told U.S. News. At issue is whether the office of the vice president is an executive branch entity when it comes to supporting the activities of the president and the vice president. The reporting requirements for disclosing classification and declassification activity fall under a presidential executive order...

"No secrets would be revealed, only statistics," says Steven Aftergood of the Federation of American Scientists, who urged ISOO to obtain the compliance of the vice president's office last May. "But the office of the vice president is resisting even that minimal level of accountability."

If the attorney general determines that Cheney's interpretation of the executive order is right, Leonard says it would be the final answer. "That's it for me," says Leonard. ISOO is a component of the National Archives and oversees the security classification programs both for the government and the security industry. Leonard reports to the archivist of the United States and is required at least annually to submit a report to the president about the government's classification programs and significant classification and declassification activities.

All this is not without precedent: The attorney general once before had to resolve a similar dispute over implementing an executive order on classification. That fight took place in 1999, when the Central Intelligence Agency refused to accept the jurisdiction of the Interagency Security Classification Appeals Panel. The Justice Department's Office of Legal Counsel ruled that year that CIA classification decisions were subject to ISCAP review. But in 2003, President Bush gave the director of central intelligence a veto over ISCAP decisions.

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

IOWA LAW IN NEED OF REFORM: Iowa's open meetings and open records statutes are in need of reform, one of the architects of the "sunshine" laws said Thursday.

Arthur Bonfield, an associate dean of the University of Iowa College of Law, said the Legislature could choose to draft more "Band-Aid" remedies to address some of the most publicized problems, as it has in years past. Or, he said, it could take on a comprehensive study of the two statutes.

Members of the Iowa House's state government committee said they were inclined to do the latter, following the presentation Bonfield made Thursday afternoon at the Statehouse.

The state's sunshine laws have been at the heart of some key public controversies this year. Among them: alleged secrecy surrounding the Board of Regents' search for a new U of I president and several closed-door board meetings at the scandal-plagued Central Iowa Employment and Training Consortium in Des Moines.

"Over the last year, there has been what appears to be multiple violations" of the state's sunshine statutes, said Pam Jochum, a Dubuque Democrat on the committee. Yet, she said, "we seem to tinker with everything under the sun here except campaign finance and open meetings-open records."

Jochum and other committee members said they hoped to form a subcommittee that would meet this summer and fall to review conflicts and problems inherent in the laws. Lawmakers also need to address personal privacy, safety and technological issues that could not be anticipated when the last major revisions to the statutes occurred in the 1970s and '80s.

A $600 MILLION DEAL THAT COSTS $260 MILLION?: The unthinkable sometimes happens in the General Assembly.

It happened last week when Senate President Marc Basnight called for a review of the state’s use of economic incentives. This came after the news that Google’s plan to build a $600 million data center in Caldwell County could cost the state $260 million.

To say that the Senate is pro-business is like being a little pregnant. So it came as a surprise that its leaders want to review the state’s business recruiting tool.

Google announced last month that it would build a data center in Lenoir. In exchange, the Internet giant would receive $165 million over 30 years in city and county tax breaks, and $94 million in state incentives. The deal could generate as many as 210 jobs with average annual salaries of $48,000.

That’s good money for those lucky enough to work at Google, a company known for its employee perks and robust benefits, including shuttle service and child care.

However, the deal and the secrecy surrounding it have caused critics and supporters of incentives to question how far the state will go in the name of economic development.

ADMINISTRATORS’ SALARIES FOCUS OF BILL: An effort is afoot to force public school administrators to more openly disclose their salaries and perks.

House Speaker Pro Tem Carl Bearden, R-St. Charles, is sponsoring state legislation that would require all superintendents and principals, along with their assistants, to report salary and benefit information. The information would have to be posted online with the district’s yearly report card and would have to be sent to parents, taxpayers and media outlets.

The state Department of Elementary and Secondary Education already keeps a record of administrative salaries, but not benefits. Bearden’s bill would require districts to report all allowances, cell phone or personal digital assistant contracts, buyout clauses, entertainment allowances and donations from school foundations.

School groups argue that the information is already open to the public, so the law is unnecessary.

"We think it would cause a lot of focus on school administrator salaries," said Gary Sharpe, executive director of the Missouri Council of School Administrators, based in Jefferson City. "Missouri administrative salaries certainly are not high. They’re low compared to most standards. But looking at the salary, not everybody understands the nature of the job."

COUNTY REMOVING RECORDS: Snohomish County (WA) plans to strip access to hundreds of thousands of public records from its online archives next month out of public concern over identity theft.

Auditor Carolyn Diepenbrock announced Wednesday that 61 types of documents - including marriage certificates, tax liens, divorces and death certificates - will be removed March 1 because they can contain Social Security numbers and mothers' maiden names.

About two dozen people have voiced concern in the past year that personal information was readily available to potential identity thieves, she said.

"There is a public perception that individuals are getting this information from our Web site and then committing identity theft," Diepenbrock said. She said she is trying to address those concerns.

Even so, she said, no one has been the victim of a crime as a result of online access to these documents.

"If you do research on identity theft, where people get that information, they're not getting it from us," Diepenbrock said. "But because there is a public perception, we're trying to ease the concern of our public by removing these documents."

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

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

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

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

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

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

The near-universal reaction of school officials when informed that they had hired drivers with checkered pasts: "We didn’t know." State laws, practice and policies make it virtually impossible for school officials to review complete driving histories maintained by the state.

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

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

CONCEALED WEAPONS LIST CREATES FIRESTORM: The Roanoke (Va.) Times removed an online database of state residents who are licensed to carry concealed weapons after what the paper termed "a firestorm of criticism," the Times reported Tuesday.

"The list, published as part of an opinion column about open records that ran Sunday in the newspaper's New River Valley Current section, was taken down Monday afternoon out of concern that it might include names that should not have been made public," the paper reported. The Times added that it had not received any "official word from Virginia State Police, which provided the data at the paper's request."

Publisher Debbie Meade said she was "concerned enough about complaints from readers to act out of an abundance of caution."

"Our concern is that if the information should have been protected and it wasn't, then we don't want to run it," Meade said in the paper.

Ironically, the Sunday column helped kick off the annual "Sunshine Week" that many newspapers mark every year.

UNDER THE DOME: FOI LEGISLATION

ARKANSAS FOI REFORM FAILS IN COMMITTEE: Government officials reportedly turned out in force to oppose HB 1520, which failed 9-8 in committee. The bill would have made it easier to get attorney fees for plaintiffs who substantially prevail in Freedom of Information Act lawsuits and allow the state and its agencies to pay the fees.

PENN GOV TO UNVEIL FOI REFORMS: Gov. Ed Rendell will propose legislation later this month designed to significantly widen public access to government records and information, a top aide to the governor said Tuesday.

The governor will produce a draft revision to the Right-to-Know Law that would make all government records – beyond a list of exceptions – available to the public, said Donna Cooper, Rendell's secretary for policy...

The current law's 50-year-old language defines public records as accounts, vouchers or contracts; or minutes, orders or decisions. Decades of case law have further restricted the categories and, when an agency refuses to produce a requested record, the law requires the person asking for it to prove that it must be made public.

Pennsylvania Newspaper Association lobbyist Deborah Musselman called changing the definition of a public record her organization's top priority regarding access to records.

"We are delighted at this news, and very gratified to find that the governor is evidently in agreement with this important issue that's of concern to so many of our members," she said.

The public would not be able to see records that might put other people at risk, be subject to litigation or cause some kind of national-security problem, Cooper said.

Most other states already take the approach Rendell favors, and typically revise their lists of exceptions as circumstances require.

Cooper said the Democratic governor also wants to expand the scope of the law to encompass the Legislature and other elements of state and local government that currently are not covered, and to establish an ombudsman's office to improve access.

SETTLEMENTS PUBLIC UNDER ILLINOIS BILL: When the Daily Southtown was denied access to information on how many thousands of dollars the city of Harvey paid out to settle lawsuits against the city's entrenched police department, the newspaper hired media attorneys and waged a legal battle in court.

A vote in a state committee is expected today on a bill that would clearly define settlements of lawsuits against public bodies as public information.

Sponsored by Rep. Kevin Joyce (D-Chicago), the bill seeks to open the settlements under the state's Freedom of Information Act so people can see who was involved and how much was paid out.

"I've seen enough in the south and southwest suburbs -- school boards, questionable hirings, police settlements -- and tax dollars are being spent to settle these cases, and many cases are sealed," Joyce said. "The public has a right to know about where their tax dollars are being spent and why a case had to be settled and who's wrong."

Beth Bennett, of the Illinois Press Association, the group that lobbied for the bill, said the legislation could reduce lawsuits and legal bills, providing the settlement information to taxpayers who can't afford to hire a lawyer and go to court.

INTERNATIONAL DEVELOPMENTS

59 THINGS YOU WOULDN’T KNOW WITHOUT UK FOI: The Times of London compiled a list of 59 items brought to us by the UK’s FOI law. Among them:

ON THE EDITORIAL PAGES

The Lacrosse, Wisconsin Tribune on secrecy in the statehouse: “Q. What do Florida lawmakers know that Wisconsin legislators don’t?

The current lack of openness in lawmaking is a significant matter for our state. If Wisconsin legislators — and Gov. Jim Doyle — truly are serious about reducing partisanship and restoring public confidence in the legislative process, they should consider a “sunshine” provision like the one Florida has embraced.

Florida officials have incorporated a simple provision in their state open records law. The provision says that a draft of a bill analysis or fiscal note can’t remain confidential once anyone outside legislative employ has seen the document.

However, Wisconsin lawmakers have retreated from this concept faster than a vampire shrinks from the bright morning sun. “We need secrecy to do our business,” they claim...”

Raleigh News & Observer Executive Editor Melanie Sill on the need for sunshine in North Carolina: Woodrow Wilson is my current favorite former president, and here's why:

Like Wilson, I believe that "publicity is one of the purifying elements of politics."

That's why The N&O helped found the N.C. Open Government Coalition a few years ago and why I'm enthusiastic about the coalition's future in its new home at Elon University.

The Burlington, VT, Free Press on chicanery in the statehouse: “Open government is having a rough winter in Montpelier.

First, the Legislature is continuing its fight to maintain the secrecy of documents generated by its financial staff in drafting bills. Second, a House bill would restrict public access to some information on death certificates.

Neither of these moves reflects a strong regard for open government in our state capital. It's time for an attitude adjustment.

If Vermont is looking to position itself as a national leader, there's not a better cause than open government. Vermont, after all, is home to the annual town meeting, one of the last vestiges of direct democracy -- government by the people -- left in our country.

The Legislature can take the lead by ensuring that at every opportunity members come down on the side of open records, that they work to eliminate obstacles to access and by making sure that denying access is a rare exception only for explicit reasons.

Unfortunately, Vermont's public records laws can hardly be called a national model...”

Subscribing to The ADVOCATE LISTSERV

Note: LISTSERV will automatically pull your e-mail address out of the message; you don't need to include it. You must always send messages to the list from the original e-mail account you used to subscribe.

The FOI ADVOCATE

March 31, 2007 Vol. 5, No. 6

NFOIC NEWS

Articles link to external sites