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The FOI ADVOCATEVisit 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. May 25, 2007 Vol. 5, No. 7The E-Newsletter of the National Freedom of Information Coalition, a unit of the Missouri School of Journalism "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." -- 110 Congressional Record 17, 087 (1964) (Statement of Senator Long) NFOIC NEWS
SEND US YOUR STATE’S NEWS at daviscn@missouri.edu. “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."
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." OPEN PROMOTES EFFECTIVENESS: Sen. Patrick Leahy, D-VT, chairman of the committee, and Sen. John Cornyn, R-TX, a member of the panel, introduced the Openness Promotes Effectiveness in our National Government Act of 2007 ("OPEN Government Act") earlier this year. The bill contains key reforms to update and strengthen the FOIA. "Last year, this committee favorably reported an essentially identical bill but the full Senate did not consider this legislation before it adjourned last year. This year, I hope that the Senate will do its part to reinvigorate FOIA by promptly passing this bill," said Leahy, a longtime champion of open government laws. "Open government is not a Democratic issue or a Republican issue. It is an American issue." The OPEN Government bill is also cosponsored by Sen. Arlen Specter, R-PA, the committee's ranking member; Sen. Russ Feingold, D-WI, Sen. John Kerry, D-MA, Sen. Johnny Isakson, R-GA, Sen. Sherrod Brown, D-OH, and Sen. Ben Cardin, D-MD. "During the Committee's hearing on this legislation, we learned that the Freedom of Information Act remains an indispensable tool in shedding light on bad policies and government abuses. But, today, FOIA also faces challenges like never before," said Leahy. "More than a year after the president's directive to government agencies to improve their FOIA services, Americans who seek information under FOIA remain less likely to obtain it than during any other time in FOIA's 40-year history."
Read more here and here. SPENDING DATA SOON A CLICK AWAY: Kansas wants to make checking up on state spending as easy as googling the meaning of the word "Jayhawk."So the Sunflower State plans to launch a first-of-its-kind Web site where users type in simple questions to unearth details about government expenses that now are hard to hunt down. Want to know how much Kansas taxpayers spent on athletic programs at the University of Kansas, home of the Jayhawks? Or want to see how much the governor's office shelled out for pencils and paper? Three years and $40 million in technology upgrades from now, the answer will be at Kansans' fingertips. NY MUST COUGH UP GOP CONVENTION RECORDS: The city cannot prevent the public from seeing documents describing intelligence that police gathered to help them create policies for arrests at the 2004 Republican National Convention, a judge said Friday. U.S. Magistrate Judge James C. Francis IV made the ruling regarding documents about information the New York Police Department says it used. The city had contended that the documents should remain confidential, saying opening them would jeopardize the city's rights to a fair trial. Lawsuits allege that the city violated constitutional rights when it arrested more than 1,800 people at the convention. The judge stayed his ruling for 10 days. Peter Farrell, a city lawyer, said the city is considering an appeal. "The decision is a vindication for the public's right to know and a total rebuff of the Police Department's effort to hide behind the cloak of secrecy when it comes to its surveillance activities," said Donna Lieberman, executive director of the New York Civil Liberties Union, which sued on behalf of some of those arrested. The convention was policed by as many as 10,000 officers from the 36,500-member department, the nation's largest. They were assigned to protect the city from terrorism threats and to cope with tens of thousands of demonstrators. GENERAL FOIA NEWS“One of the things that almost never works is secrecy--particularly secrecy in defense of dumbness."
WYOMING LOSES FIGHT OVER WOLF RECORDS: The U.S. Department of Interior had the right to withhold a group of documents about the federal government's decision to reject Wyoming's wolf management plan in late 2003, a federal judge ruled this week. Federal agencies may exempt documents from the Freedom of Information Act if they record how officials candidly deliberated in making their decisions, U.S. District Judge Alan Johnson wrote in the 32-page order. "The underlying purpose of the deliberative process privilege is to ensure that agencies are not forced to operate in a fish bowl," Johnson wrote in agreeing with most of the federal government's arguments. "Therefore, courts must focus on the effect of the material's release ... and conclude that predecisional materials are privileged 'to the extent that they reveal the mental processes of decision-makers,'" he wrote. Johnson did order the Interior Department and U.S. Fish and Wildlife Service to disclose portions of two documents. The agencies already had released many of the documents requested by Wyoming, he wrote. All of which may not mean much, said Cara Eastwood, spokeswoman for Attorney General Pat Crank and Gov. Dave Freudenthal. Johnson's decision has little bearing now on the continuing standoff between the state and federal government over wolf delisting, Eastwood said. In October, Wyoming sued the federal government over its rejection of the state's proposed wolf management plan, arguing the Department of Interior made its decision because of political consequences and not on scientific merit... Wyoming sued because the Fish and Wildlife Service refused to disclose documents that might have explained its decision in early 2003 to reject the state Game and Fish Commission's wolf management plan. The dual-status plan called for the wolves and their progeny reintroduced in the greater Yellowstone ecosystem in 1995 to remain protected in the national parks and adjacent wilderness areas, but the state would treat wolves as predatory animals -- meaning they could be shot on sight -- throughout the rest of the state. Ten of 11 Interior wolf biologists concluded the plan -- along with Idaho's and Montana's plans -- would protect the wolf, and the state's lawsuit demanded the undisclosed documents to determine whether the federal government had other reasons to reject the Game and Fish Commission's proposal. The federal government responded that the documents -- correspondence and opinions of federal officials, the process of examining the state's wolf management plan, the Department of Interior's wolf public relations strategy, attorney-client privilege and other issues -- were made before the decision to reject Wyoming's plan or were part of the deliberations.
IN THE STATES"It's not the public's meeting. It's the school board's meeting." FOIA TRANSPARENCY: District 300 could start to post all Freedom of Information Act inquiries and the district's response to them on its Web site, under a proposal by district communications director Allison Smith. More than 100 FOIA requests have come to Smith's desk so far this school year, she said, and some were duplicates. Each takes anywhere from 30 minutes to multiple hours to fill. The district's Web site would get a new "open government" page that would contain the FOIA information, a downloadable request form, and links to Attorney General Lisa Madigan's online guides to the Open Meetings Act and Freedom of Information Act. But the exact details of the proposal still would need to be ironed out by the district's policy committee and ultimately the new school board. IN ILLINOIS, MEETINGS LAWS IGNORED: Many McHenry County school districts since 2004 repeatedly have violated the Illinois Open Meetings Act regarding closed-session meetings, according to records obtained by the Northwest Herald. Some apparently discussed public matters in private. District 300's board has invoked closed session to discuss a lack of funds to honor two dead employees, Alden-Hebron District 19's board discussed the Miss Hebron Pageant, and Prairie Grove District 46 discussed its bonding authority and school finances. For other boards, to which homeowners pay thousands of dollars a year in property taxes, it's not so much what they are doing in closed session, but what they are not. Among the findings: Almost half of the school boards have violated the law by not reviewing closed-session minutes for possible release at least twice a year, and two school boards have never done so. IOWA OMBUDSMAN SLAMS SECRET SEARCH: The Iowa Citizens' Aide Ombudsman is speaking out about what he calls the "cloak of secrecy" surrounding the process of selecting a new president for the University of Iowa. Ombudsman William Angrick says secrecy in government creates "suspicion." He's asking the state's attorney general to ensure the "intent and spirit" of Iowa's Open Meetings and Public Records law are followed as the Board of Regents searches for a new U-of-I president. According to Angrick, the selection process may only be closed when there would be "needless and irreparable injury" to the job applicant's "reputation" -- and the job-seeker requests that interview sessions be closed to the public. In a letter to the attorney general, Angrick goes on to say that "individual preference, mere inconvenience or even potential embarassment" are not enough to base the decision to -- in his words -- "hide" behind closed doors. STATE POLICE ROUTINELY DENY ACCESS TO RECORDS: Illinois state police routinely turn down requests for public information and sometimes ignore them altogether. That's the conclusion of a new review of police files. The Springfield State Journal-Register looked at information requests and found they came from a wide variety of people, such as relatives of crime victims, insurance agents investigating accidents and even other police doing research. In one case, documents about a murder that took place 60 years ago were declared secret. In another, a woman trying to learn more about her brother's suicide was turned down. Even routine reports on traffic accidents are withheld. Illinois state police got nearly 700 requests last year. They granted only about one-quarter. In roughly one-third of the cases, their files don't show whether or not they ever responded. A TALE OF E-MAIL: The Florida Sunshine Law prohibits members of public boards from discussing business outside public meetings -- including through e-mail. But a review of electronic mail conversations among former leaders of Explorer Elementary and Middle School reveal a handful of possible violations by two board members in the month leading up to the charter's collapse. "They can argue that they're just exchanging information, but the fact of the matter is it could have been a discussion that citizens would have wanted to take part in or be informed about," said Adria Harper, director of the First Amendment Foundation in Tallahassee. IDAHO SUPREMES OPEN E-MAILS: Idaho Supreme Court justices say e-mail messages sent between Kootenai County Prosecutor Bill Douglas and a former county employee are public records. The May 4 ruling will likely affect a second case in Kootenai County involving electronic communications by its former chief deputy county prosecutor. The Supreme Court affirmed a July 2005 ruling by Idaho 2nd District Judge John R. Stegner. He ruled that The Spokesman-Review newspaper of Spokane, Wash., had a right to read the full contents of nearly 900 e-mails exchanged between Douglas and former juvenile drug court supervisor Marina Kalani, who worked for Douglas. "The e-mails are public records and are not exempt from disclosure under either statutory exemptions or constitutional law," the court wrote in its unanimous, five-justice decision. SOMEWHERE IN SOUTH DAKOTA, A PHEASANT WEEPS: South Dakota's Supreme Court will hear oral arguments April 23 in the dispute over whether an invitation list to a governor's pheasant hunt is a public record. The court's argument schedule, released Thursday, sets the hunt-list case for 11 a.m. April 23. Oral arguments generally last 50 minutes, with each side getting 20 minutes to present a case, and the party that brought the appeal getting a final 10 minutes for rebuttal. The case involves the Argus Leader's attempt to get the invitation list to the 2005 pheasant hunt sponsored by Gov. Mike Rounds. The hunt is a long-standing event billed as a way to showcase South Dakota for business prospects. Jim Hagen, who headed the state Department of Tourism and State Development when the case started, is named as defendant. The newspaper says the information should be available to the public, which has a right to know what government is doing. MONTANA SUPREMES OPEN SCHOOL DOCUMENTS: The state Supreme Court says a newspaper has the right to see documents dealing with the punishment given to Cut Bank High School students involved in a BB gun shooting. The case involved a request made by the Cut Bank Pioneer Press to see the disciplinary actions taken against several students. The newspaper argued school trustees violated the public's constitutional "right to know" by withholding the information. Yesterday's decision also addressed a Supreme Court opinion from last year that endangered the public and press' ability to sue school boards for open-meetings violations. The Montana School Boards Association told school boards around the state that the previous decision, in which a woman unsuccessfully challenged the openness of a Darby School District meeting to hire a superintendent, could make it difficult for a newspaper to show any "personal stake in the decision of a school board."
UNDER THE DOME: FOI LEGISLATIONTEXAS TO CONCEAL PERMITS: More than a quarter of a million Texans are licensed to carry concealed firearms, but their identities would be hidden along with their handguns under legislation expected to pass the House. The bill by Rep. Patrick Rose, D-Dripping Springs, and three other House members would make private the names of people who hold concealed-handgun licenses - information that is now public under state law. "The personal steps a Texan takes to protect him or herself should not be a matter of public record," Mr. Rose told colleagues in a hearing earlier this session, calling the decision to carry a concealed handgun "a private, personal decision to protect themselves and their families." Supporters say that it's a matter of personal privacy as well as safety and that the "concealed" element is lost if someone can just call up the Texas Department of Public Safety, give them a name and address, and find out if that person has a concealed-carry license. The DPS is required to tell the license holder the name of the person asking about them. That, opponents say, blows holes in the argument that criminals would use the information to their advantage, since most wouldn't inquire if they knew their target would be notified. They also say the licensee may get an advantage if a would-be attacker is aware that he or she is probably packing heat. Read more here. GREAT NEWS IN THE EVERGREEN STATE: Taxpayers may see more government records, and news reporters can protect their sources without being jailed under two bills Gov. Chris Gregoire signed into law. The measures were among some two dozen that Gregoire signed on April 27. Under the new sunshine law, a state committee is to examine more than 300 exemptions to the state's public-records act, a voter-approved law that spells out which government documents must be publicly disclosed. Attorney General Rob McKenna requested the measure, which he said would repair years of damage done by laws and rules that keep government information out of taxpayers' view. Voters overwhelmingly approved the state's public-records law by initiative in 1972. The measure called for disclosure of campaign finances, lobbyist activity, financial affairs of elected officers and candidates, and access to public records. When it passed, there were only 10 exemptions to the public-records section. Since then, hundreds of exemptions have been introduced. Read more here. NORTH CAROLINA PARTLY SUNNY, PARTLY CLOUDY? It may not receive the scrutiny reserved for tax bills or education initiatives, but there is a quiet battle going on in our state capitol over something every bit as important: Your right to know. There are two bills up for debate that North Carolina citizens should know about. One, SB 1546, would keep open a window for the public. Another, SB 1006, would draw a curtain over some public records. SB 1546's principal sponsor is Sen. David Hoyle of Gaston County. This bill is in response to a North Carolina Court of Appeals ruling in 2005 in a case that pitted the Charlotte Observer against the Charlotte-Mecklenburg Hospital Authority and Carolinas Medical Center. The newspaper had sought access to compensation records for Carolinas Healthcare System employees, including expense reimbursements for some employees, under the Public Records Act and Public Hospital Personnel Act. Carolinas Healthcare responded that it felt the information was not public record, a sentiment the court agreed with... SB 1006, on the other hand, takes a step toward codifying secrecy. Sponsored by Senate Majority Leader Tony Rand, SB 1006 puts scrutiny of the purchase of physician medical practices off-limits under the North Carolina Public Records Act. It would roll back the results of a two-year battle by another newspaper, The Wilkes County Journal-Patriot, to view the contract between a Wilkes County doctor who sold his practice to a public hospital in that county. Read more here and here.INTERNATIONAL DEVELOPMENTSGLOBAL CLIMATE CHANGE SECRECY: Global warming may be the most talked-about subject in politics today, but the B.C. government is treating it as a top-secret matter. Just a few weeks ago, the provincial Liberal government created a top-level "climate action" committee of cabinet ministers to begin drafting its ambitious, California-style plan to reduce greenhouse gas emissions. But on March 29 Premier Gordon Campbell also signed off on a little-noticed change to the Freedom of Information Act, putting everything those cabinet ministers discuss under an official cone of silence. "We weren't consulted on that," said B.C. Privacy Commission David Loukidelis, who said he noticed the change to the law only after the fact, when looking at a government website. "It's the first time I can remember that we weren't consulted on an amendment of the FOI Act." Read more here. (Registration required) ON THE EDITORIAL PAGESThe Galveston Daily News on an old FOI loophole: "For years, The Daily News has urged legislators to get rid of a loophole in the Texas Public Information Act that allows school boards to choose superintendents in secret. State Sen. Kevin Eltife, a Republican from Tyler, has filed legislation that would make things better. Senate Bill 1133 is not perfect. But it would be a substantial improvement. In Texas, school boards choose someone in secret. Then, tossing a bone to the public, they give the common people 21 days to get used to the idea that this sole finalist is really the new superintendent before making that decision official. The problem with this process is that it leaves the public in the dark while the real decision is made. And it's a vitally important decision. Can you think of a more important decision from the point of the view of the public? The Des Moines Register on secret insurance deals: "The Iowa Insurance Division negotiated a penalty of $750,000 against Conseco Life Insurance Co., but the state agency is keeping secret the details of whatever triggered the fine. In response to questions about the confidential agreement, State Insurance Commissioner Susan Voss said: "Our No. 1 concern is consumer protection." Well, open government and consumer protection go hand in hand. The public can better protect itself when it knows the laws and insurance rules a company may have violated. The public needs to know what kind of wrongdoing to watch for. Secrecy in government doesn't protect consumers. The deal between the division and Conseco has gotten the attention of Gov. Chet Culver and some lawmakers. They're asking questions about the lack of transparency. The governor "wants to take steps to ensure that future settlements abide by his guiding principles of open government and consumer protection," his spokesman told the Register. Great, although that still leaves the public in the dark about the details of this settlement. And that makes it impossible to know whether the division has acted in the best interests of Iowans...." 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