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July 17, 2007 Vol. 5, No. 8

"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

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

LABOR DEPARTMENT ORDERED TO SHARE RESULTS OF TOXICITY SAMPLING -- A federal judge has ordered the Labor Department to share with the public the results of years of toxic substance sampling in American workplaces. Federal officials said Monday they were reviewing the decision. The decision, by U.S. District Judge Mary L. Cooper, came in a Freedom of Information Act lawsuit by former Labor Department official Adam Finkel, who now is a whistleblower.

Finkel was a chief regulator and regional administrator for the Labor Department's Occupational Health and Safety Administration from 1995-2003. He sued the Labor Department in 2005 after they refused to tell him the results of beryllium tests on OSHA inspectors.

The Labor Department argued that releasing the information would invade its inspectors' privacy, put at risk trade secrets of the companies involved and make it harder to inspect companies in the future.

"The Court finds the public interest in disclosing information that will increase understanding about beryllium sensitization and OSHA's response, thereto, is significant," Cooper wrote in her decision.

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

SECRECY PLAGUES SCRUTINY OF MOUNTAINTOP MINING: Two weeks ago, environmental activists Cindy Rank and Vivian Stockman took a drive through the Logan County hills with Paul Vining, the president of Magnum Coal.

From the top of a ridge, Rank and Stockman looked down through the trees, mountain laurel and flame azalea.

The stream that runs through Fitzwater Hollow was already buried, they saw. Workers from Magnum subsidiary Apogee Coal Co. had dumped a six-foot-thick layer of rocks into the valley. The damage was done.

"This was the environment we didn’t want to see destroyed,” Rank said later.

Citizen groups had little choice. They dropped their court challenge to block Apogee’s mining permit. Late last week, they asked U.S. District Judge Joseph R. Goodwin to withdraw their request for a preliminary injunction…

The strategy generates last-minute court fights that pit jobs against the environment, and keep legal challenges to agency permit approvals from being heard, environmentalists say.

JUDGE DENIES ACCESS TO PRIEST ABUSE RECORDS: A U.S. Bankruptcy Court judge has denied a Spokesman-Review request for access to records detailing millions of dollars in upcoming payouts from a trust to victims of priest sexual abuse in the Spokane Catholic Diocese, saying the claimants were promised confidentiality before agreeing to a legal settlement this spring.

The battle over public access was argued Monday by lawyers for The Spokesman-Review, the diocese and various committees of people claiming sexual abuse. Bankruptcy Judge Patricia Williams denied the newspaper’s request in an oral ruling on Tuesday.

The Spokesman-Review, in a motion filed in April, sought release of the sealed proofs of claims filed and details of payouts to victims, who will be paid from the special trust established in the diocese’s recent bankruptcy settlement. The newspaper, which has a policy of not naming victims of sexual abuse, asked for copies of claims in which names of victims had been edited out, or redacted.

"There are multiple reasons here to deny the request,” Williams said, citing several confidentiality agreements forged by lawyers and a mediator since 2004. "There is no judicial involvement in the determination of the disputed claims under the plan, so there is no public record,” Williams said.

UNDER THE DOME: FOI LEGISLATION

TEXAS GUN PERMITS VEILED IN SECRETS:The names of people licensed to carry concealed handguns in Texas are no longer available to the public. Republican Gov. Rick Perry announced Thursday that he had signed into law a bill that seals state records showing who is allowed to carry a gun in public. Only law enforcement agencies will have access to the information.

Rep. Patrick Rose, D-Dripping Springs, and Sen. Bob Deuell, R-Greenville, put forth the legislation. Rose said it was needed because "the steps that law-abiding Texans take to protect themselves and their families should be issues of private concern."

The newspaper industry had urged Perry to veto the bill, saying it was an open government issue, not a gun issue.

Anyone can check on information about other state-issued license holders, such as doctors, nurses, lawyers, real estate agents and barbers, the Texas Daily Newspaper Association and Texas Press Association said in urging a veto.

"We continue to wonder exactly why a government record has been cut off from view," said Ken Whalen, executive vice president of the TDNA. "There was really no evidence that there was a problem."

MICHIGAN BILL TO OPEN SALARIES: State Sen. Nancy Cassis (R-Novi) has introduced legislation that would require local school districts to post on their web sites the salaries of their highest compensated employees. She calls it the "Disclosure Bill."

"This will provide open disclosure so taxpayers can form an opinion about salaries," she said.

Cassis introduced the bill in response to a house bill that would put a cap on superintendent salaries at $177,000, or the same as Gov. Jennifer Granholm's salary.

Cassis said superintendent salaries shouldn't be capped, but tax payers should have easy access to the information.

"This should be up to citizens," Cassis said. "This measure guarantees accountability in our education compensation system and maintains local control."

COLORADO SEALS VICTIM RECORDS: Victims’ addresses will be off-limits to their abusers and the general public under a new law that goes into effect in Colorado next month.

Gov. Bill Ritter signed legislation May 31 establishing a Victim Address Confidentiality Program. H.B. 1350, which takes effect July 1, will allow a victim of a sex crime, domestic violence or stalking to have a fake address listed in public records.

The bill states that individuals on the run from abusers often move to new addresses to prevent their predators from finding them. However, the text says, "This new address … is only useful if an assailant or potential assailant does not discover it.”

Many public records, including addresses, can currently be accessed within minutes online. Public records, as defined in the bill, include all "documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, digital data, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by a state or local government agency.”

Under Colorado’s public-records law, any record from a public entity used to carry out its duties or involving its money is available for the public to see. The only exceptions to this are some personnel records and proprietary commercial information.

KEYSTONE REFORMS UNDERWAY: A House advisory panel yesterday gave a resounding yes to a plan to increase public access to government records but refused to support term limits for legislators.

The 24-member House Speaker's Reform Commission wrapped up its work after five months. It recommended a stronger Ethics Committee, a redistribution of power to rank-and-file members, campaign contribution limits and more.

The recommendations will be reported back to House leaders who intend to parcel them out to the appropriate standing committees for consideration.

Many of the panel's previous proposals already have been enacted by the Legislature while the others remain under consideration.

Government watchdogs celebrated yesterday's unanimous approval of a recommendation to change the state's presumption that most government records are not public unless a requester proves they should be released.

Instead, the commission recommended that all records be presumed public unless they fall under a list of exemptions for such things as medical records, Social Security numbers, home addresses, trade secrets and labor negotiation strategies.

That list of exceptions likely will be debated and expanded during committee meetings and floor debates.

The Pennsylvania Newspaper Association was pleased with yesterday's vote, but isn't celebrating yet.

"There can be so many exceptions that the change in presumption won't be very meaningful. We don't think that's going to happen, but we have to work to make sure it doesn't," said Deborah Musselman, the association's director of governmental affairs.

IN OHIO, A PUSH FOR FOSTER CARE RECORDS: An attorney for The Enquirer joined other press advocates Wednesday in arguing for more public access to foster care records - not increased privacy, as proposed in the Ohio House.

"Anyone who lives in southwestern Ohio will remember for years to come . . . the story of 3-year-old Marcus Fiesel," said John C. Greiner, a Cincinnati attorney representing The Enquirer.

Marcus died in August when his foster parents left him tied up in a closet while they took a weekend trip to Kentucky. Liz and David Carroll Jr. were later convicted in his murder.

Others - including a deputy sheriff from Logan County, child service officials from Cuyahoga and Lucas counties, and a foster parent - argued that children and their foster parents might be endangered by publicizing their names.

After the hearing, state Rep. Michelle G. Schneider, R-Madeira, said the section of House Bill 214 that shields foster parents' names, county of residence and certification dates is "the part of the bill that bothers me the most. "... These people are providers and paid with tax dollars."

Instead, Schneider said she supports broader public scrutiny of foster care records and caregivers' background checks "for the safety of these children and for the transparency in government that we all need.''

CALIFORNIA SALONS SILENT ON POLICE RECORDS: An Assembly committee on Tuesday rejected a heavily lobbied bill that would have overturned a state Supreme Court decision blocking the release of police discipline records.

The measure by Senate Majority Leader Gloria Romero, D-Los Angeles, failed to get a motion for a vote in the Public Safety Committee.

"I am disappointed that not one member of the committee made a motion to allow for a vote on the bill," Romero said in a statement. "We come to Sacramento to vote — not remain silent. I would have had more respect for committee members had they voted up or down and not let the bill die in silence."

The bill would have overturned an August 2006 ruling in which the Supreme Court said the public did not have a right to see personnel records of law enforcement officers who challenge disciplinary actions taken against them.

ON THE EDITORIAL PAGES

The Baton Rouge, Louisiana, Advocate on the latest legislative threats: "…That is why we are troubled by the latest attempts in the Legislature to exempt certain institutions from the state’s public records law, an important law that allows citizens to review the work of government.

We are already on record in opposition to House Bill 841, which would hide all records of the Louisiana Airport Authority pertaining to site acquisition, operation, planning, design, construction or lease of an airport being promoted near Donaldsonville until negotiations are complete. Advocates of the legislation say such secrecy is necessary to protect sensitive negotiations. As we have said before, we do not agree that such secrecy is necessary, and we believe the granting of such exemptions to the public records law will encourage other agencies to seek similar exemptions. A loss of transparency in our government will be the inevitable result.

Yet another piece of legislation, House Bill 964, would shield the proceedings and records of certain nonprofit health-care corporations from public review. The exemption from public scrutiny would apply to nonprofits that partner with the Louisiana Department of Health and Hospitals to improve the quality of health care in Louisiana…”

The Lansing, Michigan, State Journal on a Michigan Supreme Court decision: "It's not surprising that the Michigan Supreme Court again ruled this week to weaken the state's Freedom of Information Act. After all, a four-member majority of the court wants the court's own operations secret from the public.

Still, the decision in Bukowski vs. City of Detroit is more bad news for open government and for average citizens. The right to know embodied in FOIA remains under sustained attack by politicians in Michigan.

And, make no mistake, the current Supreme Court is in the control of politicians….

The appeals court said once you have a final decision, the documents are not preliminary - the "frank communication" exemption is null.

The Supreme Court disagreed. The majority decision states if documents were "preliminary" at the time of their creation, they remain that way. The frank communication exemption was designed, though, to allow officials to speak plainly to each other before a decision was made. Under this ruling, citizens who want to know what happened must challenge a frank communication exemption by getting a court to rule that the value of disclosure outweighs the value of secrecy - an onerous process that will deter most.

A troubling development detailed in an editorial in New America News: Lost in the news about the immigration reform package was an incident with diplomatic implications. Recently the U.S. government shamefully denied a United Nations expert access to two immigrant detention lock-ups during the expert’s three-week fact-finding mission to the United States.

Jorge Bustamante, U.N. Special Rapporteur on the Human Rights of Migrants, was invited by the U.S. State Department to observe and investigate immigrant detention in the United States. Yet on April 30, he was denied access to the T. Don Hutto detention facility, a private Texas prison that holds entire families, even small children, behind bars. Then, on May 14, the official was refused access to the Monmouth County jail in New Jersey, which houses almost 150 immigrant men and women pursuant to a contract with U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS).

The refusals reveal the total lack of transparency in the system of immigrant detention in the United States. To deny access to an independent observer, such as the U.N. expert, is to draw an iron curtain around those imprisoned in our name. As Mr. Bustamante has commented, it raises the perception that there is something to hide, and it eliminates an avenue for detainees to register complaints about mistreatment or abuse.

While such secrecy is of concern in any closed institution, it is particularly troubling when the U.S. immigrant detention system has such a deplorable track record. For over a decade, the media, human rights groups, and government audits have reported accounts of staff-on-detainee rapes, brutal assaults, and attacks by dogs; there have been numerous deaths due to denial of basic medical care; and detainees have been denied access to counsel. Conditions like these can thrive unless outsiders are permitted to observe and report.

Foster children would be better served by transparency, said the Newark, Ohio, Advocate: "As Ohio HB 214 gets closer to a vote, we note again Ohio cannot afford less public scrutiny when it comes to protecting its most vulnerable citizens -- our children.

That's why we urge changes to a proposed state law aimed at improving the state's foster care system.

While we support efforts to better protect these youngsters; we do not see how completely shielding the records of foster parents helps to solve any of the problems. In fact, we argue that exempting foster parents from Ohio's Public Records Act would actually endanger the very children state lawmakers seek to protect.

The current effort in Columbus comes largely in response to the death of 3-year-old Marcus Fiesel, a foster child killed by his guardians in southwest Ohio last year. That well-publicized case captured the attention of the entire state.

Unfortunately, the public didn't know about the child's foster parents until after he was dead. He did not die because of public scrutiny of foster parents. We would suggest Marcus died partly because the public didn't know enough his situation before the tragedy took place.

Public scrutiny of foster parents is essential to a successful system, especially given the over-burdened workload of social workers. Allowing the public and the media to join the watchdog effort is crucial.

The Sandusky, Ohio, Register on its concealed weapons flap with the NRA: "This is a battle the Register never sought, but would have been irresponsible to have ducked.

Now, the National Rifle Association and the Ohio Concealed Carry group have begun an organized campaign to harass the newspaper’s advertisers because the Register took a stand against government secrecy.

The Ohio law exempts all information about the program from the public record and only journalists are allowed to see the names of residents who have been granted licenses to carry concealed weapons.

On Sunday, the Register posted the name, age and county of residence for each of the nearly 2,700 area residents who have been granted a concealed handgun license.

These are citizens whom sheriffs in each of the five counties of the Register’s circulation area deemed to be law-abiding and upstanding. They went through a firearms training program and passed criminal background checks.

They should be proud to be exercising their second amendment rights, and I believe most of them aren’t as enraged with the Register’s decision to exercise its first amendment rights in publishing the information as is the NRA, which demands secrecy…

Residents who have obtained concealed carry licenses should be proud they have been granted that privilege and absolutely unashamed that they have the courage it takes.

They also should be unashamed that information should be part of the public record.

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The FOI ADVOCATE

July 17, 2007 Vol. 5, No. 8

NFOIC NEWS

Articles link to external sites

GENERAL FOIA NEWS

IN THE STATES

UNDER THE DOME: FOI LEGISLATION

ON THE EDITORIAL PAGES

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