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The FOI ADVOCATENovember 20, 2006 Vol. 5, No. 3The 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." -- Justice Louis Brandeis, 1928 (Articles link to external sites) TOP OF THE NEWS"Suppression of information is the surest way to cause its significance to grow and persist," the judge opined. "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. CHENEY SECRECY STAREDOWN CONTINUES: A new executive privilege battle is looming in Washington as a federal appeals court considers whether to intervene in an election-eve dispute over records of visitors to Vice President Cheney's home at the Naval Observatory, as well as his offices in the White House complex. Last month, a federal judge in Washington, Ricardo Urbina, ordered the Secret Service to disclose two years of visitor logs to the Washington Post immediately or explain in detail why the records are exempt from release under the Freedom of Information Act.The Justice Department has asked the U.S. Court of Appeals to block Judge Urbina's order to allow the parties to present more extensive legal arguments about the dispute. "Disclosure of the records at issue could reveal an ever-expanding mosaic that would allow observers to chart the course of vice presidential contacts and deliberations in unprecedented fashion," government attorneys argued in a brief filed yesterday. "Such an unwarranted intrusion into the most sensitive deliberations of the vice presidency cannot be countenanced." Judge Urbina and the Post cited the upcoming election as a reason for expeditious release of the logs. Justice Department lawyers said the election was not a proper factor to consider. They also scoffed at the suggestion that voters might change their minds because of the visitor records. "The timing of congressional elections should not drive (or be seen to drive) the timing of FOIA litigation, especially litigation raising sensitive issues concerning the vice president and separation of powers," the government said. TEXAS SUNSHINE LAW WITHSTANDS CHALLENGE: A federal judge in Pecos has upheld the state's open-meetings law, according to a 15-page ruling issued late on Nov. 7. Plaintiffs Avinash Rangra, a member of the Alpine City Council, and Anna Monclova, a former council member, sued the state last year arguing that the 40-year-old law barring public officials from discussing public issues in private was an unconstitutional violation of their freedom of speech. Rangra and Monclova sued Texas, Attorney General Greg Abbott and Brewster County District Attorney Frank Brown. U.S. District Judge Robert Junell, who heard the case earlier this year in a Pecos courtroom, ruled in favor of the state, saying that the plaintiffs "failed to show that the Texas Open Meetings Act is unconstitutionally vague" and "vague in all of its applications." The judge also ruled that the plaintiffs would be liable for the state's court costs. It could not immediately be determined how much has been spent so far, but Jim Todd, assistant attorney general and the state's lead lawyer in the case, described the amount as minimal. Dick DeGuerin, a Houston lawyer who represented Rangra and Monclova, said he was not entirely disappointed with Junell's ruling. "Frankly I liked everything about it except its conclusion," DeGuerin said. "He found for us on everything but" the question of public officials being protected by the First Amendment when public business is concerned. From the First Amendment Center 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. For the evidence, see a portion of the ACLU's court filing after the Justice Dept was allowed to censor it. WE CAN'T LET THEM TELL US WHAT WE DID TO THEM: The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk. The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release -- even to the detainees' own attorneys -- "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26. The battle over legal rights for terrorism suspects detained for years in CIA prisons centers on Majid Khan, a 26-year-old former Catonsville resident who was one of 14 high-value detainees transferred in September from the "black" sites to the U.S. military prison at Guantanamo Bay, Cuba. A lawyer with the Center for Constitutional Rights, which represents manydetainees at Guantanamo, is seeking emergency access to him. The government, in trying to block lawyers' access to the 14 detainees, effectively asserts that the detainees' experiences are a secret that should never be shared with the public. SSI LABEL UNDER FIRE BY FORMER AIR MARSHALL: A former federal air marshal said he will file suit against the government today to challenge use of a nonclassified label that he says allows Homeland Security officials to cover up dangerous and inept policies. Robert MacLean, an air marshal who was fired for blowing the whistle on a cutback of flight protections in the wake of a terrorist alert, is the first federal employee to challenge the validity of the "Sensitive Security Information" (SSI) label in court. Asked why he is challenging the bureaucratic tool, Mr. MacLean said, "Vindictive retaliation like this makes agents unwilling to report gross mismanagement." Families of victims of the September 11 terrorist attacks and government-watchdog groups have failed to obtain records classified as SSI. The Government Accountability Office and Congress are critical of the label and say it is overused and stamped on everything from official correspondence to general items such as going-away-party invitations. According to a June 2005 GAO report, SSI "monitoring controls are weak" and has "led to confusion and unnecessary classification of some materials as SSI." "Identification of SSI has often appeared to be ad-hoc, marked by confusion and disagreement, depending on the viewpoint, experience and training of the identifier," the report said. FLY THE FRIENDLY SKIES: Terrorism risk assessments will be assigned to any individuals seeking to enter or leave the United States, according to a Homeland Security Department announcement. The records are excluded from public review and maintained for up to 40 years. In a Federal Register notice, DHS said the Automated Targeting System passenger screening is not new, but the agency does not identify when the program began. The purpose of the Nov. 2 announcement is to provide additional notice to the public of the system's existence and what functions it performs, DHS said. Public comments are due by Dec. 4. Travelers leaving the United States by airline since Sept. 11, 2001, have been screened against a terrorist watch list. The newly disclosed assessments apply to travelers who leave by foot and by automobile as well, the Federal Register notice said. Privacy groups describe the risk assessments as intrusive. "The system appears to involve the data-mining of massive amounts of information derived from a wide variety of sources, including Passenger Name Record data obtained from commercial air carriers," according to a notice posted by the Electronic Privacy Information Center. GENERAL FOIA NEWSFOI AT WORK: AN ENDANGERED ACT: A senior Bush political appointee at the Interior Department has rejected staff scientists' recommendations to protect imperiled animals and plants under the Endangered Species Act at least six times in the past three years, documents show. In addition, staff complaints that their scientific findings were frequently overruled or disparaged at the behest of landowners or industry have led the agency's inspector general to look into the role of Julie MacDonald, who has been deputy assistant secretary of the interior for fish and wildlife and parks since 2004, in decisions on protecting endangered species... Hundreds of pages of records, obtained by environmental groups through the Freedom of Information Act, chronicle the long-running battle between MacDonald and Fish and Wildlife Service employees over decisions whether to safeguard plants and animals from oil and gas drilling, power lines, and real estate development, spiced by her mocking comments on their work and their frequently expressed resentment. THANKS TO SECRECY NEWS FOR THIS: Secrecy in science is the subject of a series of papers in the latest issue of the Duke University Law School journal Law and Contemporary Problems. The authors consider the consequences of secret science and "propose solutions to help balance the costs and benefits of such secrecy." See a descriptive news release. The full text of the special issue on "Sequestered Science," edited by David Michaels and Neil Vidmar, can be found here. CONTRACTOR USING A RUBBER STAMP?: A major Iraq reconstruction supplier has abused contracting rules by routinely marking documents as "proprietary" to shield them from public disclosure, government auditors said Friday. In a new report requested by the U.S. Embassy in Iraq, the Special Inspector General for Iraq Reconstruction found that KBR Inc., a subsidiary of Halliburton, has marked almost all documents produced under a contract for logistics support as "proprietary," limiting how government agencies can handle and share them. "In effect, KBR has turned [Federal Acquisition Regulation] provisions designed to protect truly proprietary information ... into a mechanism to prevent the government from releasing normally transparent information, thus potentially hindering competition and oversight," the IG found. Auditors said the practice also increases the burden on contracting staff members, who must go through a challenge process to remove the label in cases where they think it is misapplied. Read the article and the report (Adobe/PDF). SECRECY PANEL A PAPER TIGER? : A special panel set up last year to reduce excessive secrecy in government is being labeled toothless after its chairman told lawmakers he could not act except at the request of the president. "The statute under which we operate provides that the president must request the board undertake such a review before it can proceed," wrote L. Britt Snider, chairman of the Public Interest Declassification Board to Sen. Ron Wyden, D-Ore. Government transparency advocates say that if the statute is interpreted that way, it makes the board, in the words of Steven Aftergood, of the Federation of American Scientists, "a White House puppet." Aftergood told United Press International that "The board needs the capacity for independent action, otherwise it might as well not exist." The letter from Snider, a copy of which was obtained by UPI, says it is "an interim response" to a request from Wyden and a bi-partisan group of colleagues for the board to review two reports the Senate Select Committee on Intelligence produced, which assessed U.S. intelligence about Iraq prior to the 2003 invasion, in the light of what has been learned since. "We believe that portions of these two reports remain unnecessarily classified," wrote committee members Kit Bond, R-Mo., Dianne Feinstein, D-Calif., Mike DeWine, R-Ohio, Russ Feingold, D-Wisc., Orrin Hatch R-Utah, and Vice Chairman Jay Rockefeller, D-W.V., in a letter last month. They requested that the board review the reports to see if they were over-classified -- the first test of the board's role as a watchdog for secrecy policy. METCALF TO STEP DOWN: Daniel J. Metcalfe said little about his departure other than he wanted to teach law after working at the department since the Nixon administration. His retirement, just shy of his 55th birthday, is raising questions among some about whether it was prompted by concerns over the Bush administration's commitment to open government. Metcalfe has co-directed the office that oversees privacy rights and enforcement of the Freedom of Information Act since its inception in 1981. The office's other director, Richard L. Huff, retired last year. Metcalfe is largely responsible for President Bush's executive order last December requiring federal agencies to reverse the chronic delays in releasing records requested under the act. Metcalfe has shown an ability to get along with administrations from both political parties dating back to President Nixon, said Meredith Fuchs, general counsel at the National Security Archive, a nonpartisan public research library at George Washington University. "I don't know whether it is the politics of this administration's anti-openness policies or the politics at Justice being so controlled by the White House," said Fuchs, speculating on why Metcalfe is leaving now. WE CAN'T TELL YOU THAT WE CAN'T TELL YOU: Open-government advocates are howling this week over a newly released transcript of Attorney General Alberto R. Gonzales's testimony before the House Judiciary Committee in April on topics including domestic wiretapping and surveillance, treatment of potential terrorists, and the president's power to declassify information. During the session, Gonzales evaded most of the four dozen questions asked by Republican and Democratic members by claiming ignorance, or telling the committee -- which oversees the Justice Department -- that the answers were too secret to share. So frustrating was Gonzales's stonewalling that in closing the hearing, committee Chairman F. James Sensenbrenner Jr. (R-Wis.) lectured the attorney general: "I'm afraid that you have caused more questions to be put out for debate within the Congress and in the American public as a result of your answers. . . . We have not been treated as partners for whatever reason. . . . I am really concerned that the Judiciary Committee has been kind of put in the trash heap . . . " A sample: Rep. Jerry Nadler: Let me ask you the last question then. Can you assure this Committee that the United States Government will not grab anybody at an airport or anyplace in U.S. territory, and send them to another country without some sort of due process? Gonzales: Well, what I can tell you is that we're going to follow the law in terms of what-- Nadler: Well, does the law permit us to send someone to another country without any due process, without a hearing before an administrative, an immigration judge or somebody? Just grab them off the street and put them on a plane, goodbye without -- we've done that. Does the law permit us to do that? Do we claim that right? Gonzales: I'm not going to confirm that we've done that. 11th CIRCUIT TO HEAR FEMA CASE A battle between open government and individual privacy resumes Tuesday in federal appeals court as The News-Press and other Florida newspapers seek access to hurricane relief records. Three Gannett Inc. newspapers and the South Florida Sun-Sentinel want the government to disclose who got federal aid and how much after four hurricanes battered Florida in 2004. A federal judge denied the request in November. The case now will be heard in the 11th U.S. Circuit Court of Appeals in Atlanta. "This is a real test of whether everything in government is a privacy issue," said Charles Davis, executive director of the Freedom of Information Center at the University of Missouri School of Journalism. The News-Press, Pensacola News Journal and Florida Today, all owned by Gannett Inc., contend access to the records is needed to examine the Federal Emergency Management Agency's performance in handing out billions of dollars in aid to hurricane victims. The News-Press and other media uncovered government waste and fraud in the wake of the 2004 storms. GROUPS SUE OVER GLOBAL WARMING ASSESSMENT: Three environmental groups have sued the Bush White House for suppressing a legally required assessment of how global warming would affect different regions of the U.S. They want the administration to obey a 1990 law that requires the government to do such a study every four years. The Clinton administration produced the first such study in 2000, and the Bush administration, at the urging of industry groups, has spent the last six years trying to un-publish it. An updated study was due by law in 2004, but the groups charge that the administration has simply ignored the law and want a court to compel it to conduct and publish the overdue study. The Center for Biological Diversity, Greenpeace, and Friends of the Earth sued William Brennan (acting director of the U.S. Climate Change Science Program) and John Marburger III (director of the White House Office of Science and Technology Policy) on Nov. 14, 2006, in the federal district court for the Northern District of California. They want the Bush administration to produce a new version of what is called the "National Assessment of Climate Change." The Global Change Research Act of 1990 requires the National Assessment to be done every four years. "This administration has denied and suppressed the science of global warming at every turn," said Julie Teel of CBD, one of the attorneys arguing the case. "They know the update will affirm what the world's leading climate scientists believe: that we need immediate and substantial cuts in greenhouse gas emissions. It is a complete head-in-the-sand approach to a looming global catastrophe." FAA STUNS CITY WITH BILL: Myrtle Beach officials were shocked when the Federal Aviation Administration said it would cost more than $18,500 to gather documents for a city investigation into this summer's radar fiasco. The city was looking for clues as to how it was left out of the loop in the FAA's decision to place new radar closer to the beach, potentially stunting oceanfront development. City Council voted Tuesday to ask the FAA for a waiver of the fees. The city learned during the summer of the FAA's plan to upgrade the radar at the county-run Myrtle Beach International Airport after a developer was told by the FAA that his planned oceanfront high-rise would obstruct the radar's operation. As it turned out, the high price might simply have been another miscommunication between government agencies. The FAA was using rates it would charge a commercial entity when it quoted a price for the estimated 312 hours it would take to cull about 5,000 pages of documents, plus the cost of copying, to fulfill the Freedom of Information Act request. The FAA charges different rates based on who is making the FOIA request. In this instance, the agency classified the request as commercial, potentially because it might not have realized that an outside attorney hired by Myrtle Beach was representing the city. 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 WANNA LOOK AT THOSE HANGING CHADS? Residents of some states will have a much easier time than those of others if they want to examine the results for themselves, according to new University of Florida research. Laws in Montana and Florida provide access to the most election information, while Rhode Island's and North Dakota's laws provide access to the least, UF researchers say. Survey results, released this week from the Marion Brechner Center Citizen Access Project at UF's College of Journalism and Communications, show that overall, Montana's laws ranked the highest. Montana requires that 'all records" pertaining to elections and voter registration are public records" unless 'designated otherwise." In Florida, election boards must post at poll sites the results of the vote for each office or item on the ballots. A certificate of the results must be delivered to the supervisor of elections for immediate publication. Each county canvassing board must file a public report with the state Division of Elections on the conduct of the election, including information on equipment malfunctions or other difficulties or unusual circumstances. "Many people laughed at Florida's hanging chads six years ago," said Bill Chamberlin, an eminent scholar of mass communications in UF's College of Journalism and Communications, 'but what many Floridians knew was that we could at least by law see the ballots. That's not true in many states." Rounding out the top five states in public access to election-related records are Delaware, New York and Ohio. From University of Florida News HOW 'BOUT THEM COWBOYS! The Dallas Cowboys and the city of Arlington must release architectural drawings of the Cowboys new stadium to the public, according to a ruling the Texas attorney general's office issued Tuesday. The team had argued that stadium plans should remain confidential because they could reveal the stadium's vulnerability to potential terrorist attacks and could cause substantial competitive harm to the team. The Star-Telegram sought the information from the Cowboys and the city three months ago under the Texas Public Information Act, arguing that the documents are public information because taxpayers are investing $325 million in the stadium. The city has 30 days to challenge the ruling by filing a lawsuit in Travis County. But both parties say they will not contest the ruling and expect the documents to be made available. Karen Brophy, an assistant city attorney, said the documents should be released in the next few days and will include preliminary drawings the city received from the Cowboys in November 2005. FOI AT WORK: EXCESSIVE FORCE IN VIRGINIA: The average annual number of excessive force complaints against Lynchburg police officers has more than doubled over the past five years. The excessive force complaints in 2006 are at a 12-year high. Eleven complaints have been received this year. The breakdown of the complaints resulted from a request for information by The News & Advance under the Virginia Freedom of Information Act. Out of the 54 complaints registered against Lynchburg officers since 1995, only four were found to have sufficient evidence to prove the allegations. FOI AT WORK: PRISON OVERTIME SOARS: Overtime costs at Maryland prisons nearly doubled last year because the state is having trouble find replacements for correctional officers who leave for other jobs. Records released to The (Baltimore) Sun under the Freedom of Information Act show overtime costs for the last fiscal year exceeded $28 million, compared with less than $15 million the previous year. And the records show costs remain high in the current fiscal year. About ten percent of the state's 6,300 prison guard positions were vacant as of August. The vacancy rate in some individual prisons is as high as 30 percent. FOI AT WORK: THE LIBRARY IS A CRIMINAL HOT SPOT! A new story reveals a shocking number of criminal incidents at the Aurora, Ill., Public Library buildings in the last two years. The findings are the result of a CBS2/Beacon News investigation into crime and other inappropriate behavior occurring at public libraries throughout the Chicago metropolitan area. Thousands of internal library incident reports and police records were obtained through the Freedom of Information Act. Aurora's three library branches have been the site of 1,118 police service calls since 2000. Aurora police records reveal 108 assault, battery or disorderly conduct calls; 83 theft calls; 44 drunkenness or public intoxication calls; and two bomb threats. "When you put it all together in one lump sum, it is like wow!" said Eva Luckinbill, executive director of the Aurora Public Library. "But when you deal with one or two (incidents) a week it doesn't hit you the same. MARYLAND SUPREMES OPEN ECONOMIC DEVELOPMENT BOARD: In a decision that could have broad implications for the public's right to inspect the workings of government, Maryland's highest court ruled yesterday that the agency overseeing Baltimore's economic development must open its meetings and its paperwork for public review. Writing that the Baltimore Development Corp. has previously been able "to cloak the business of the citizens of the city of Baltimore behind the veil of a supposedly private corporation," the Court of Appeals dismissed city arguments that the agency's closed-door meetings are legal and crucial to the agency's work. Though the decision focuses only on the city's development agency, a nonprofit corporation, its impact could prove far reaching, potentially opening up dozens of quasi-public agencies that are technically separate from government but perform public functions. Most of them, like the BDC, have operated behind closed doors for years. FOI AT WORK: SCHOOL SECURITY REPORT SHOWS HOLES: A new report on security at New Hanover County schools hasn't been made public until now. The report spells out what happened when a team of trained UNCW researchers posing as "intruders" tried to gain access to the hallways at each public school. Even as the system tries to toughen security in the wake of a series of frightening and deadly incidents across the country, the intruders were in schools nearly twice as long this year as they were last year. Elementary school children are the most vulnerable. In 2005, the intruders were stopped and escorted to the front office in an average of 12 minutes. When they went back twice in April of this year they wandered the halls for an average of 23 minutes. In fact, at two schools no one challenged them at all for a full hour. The bottom line, the report concludes: "Intruders had access to unsupervised young children." Assistant Superintendent Al Lerch did find a bright spot in the report. He says this year, school staff did question the intruders more quickly, but were too slow taking strong action to remove what he says could be terrorists. INTERNATIONAL DEVELOPMENTSA CALL FOR ACCESS: Three leading freedom of information organizations are calling on the Council of Europe to ensure that its future treaty in the area of freedom of information provides a robust safeguard of the right to access information. Access Info Europe, ARTICLE 19 and the Open Society Justice Initiative today presented a joint briefing to the Group of Specialists which is preparing the treaty, warning that the working document in some respects sets a lower standard than the practice of most countries in the region. The three organizations urged the working group to draft a treaty which will require prospective State Parties to bring their legislation up to the level of international best practice. The briefing is based on a survey of the access laws of 26 Council of Europe Member States. The briefing calls on the Group of Specialists to:
ON THE EDITORIAL PAGESKathryn Quigley, an assistant professor of journalism at Rowan University, on the secrecy of Pennsylvania¹s DHS: Children die from horrific abuse. Heads roll at the child welfare agency. Fingers are pointed and blame is cast. This is a sad, but usual scenario in the world of social services when the lives of innocent children are lost while supposedly under the watch of government agencies. This is what is happening in Philadelphia after reports that 20 children died dreadful deaths at the hands of abusers from 2003 through 2005. In all 20 cases, the children's families had some prior contact with the Philadelphia Department of Human Services. As a result, the DHS commissioner was asked by Mayor Street to resign and another official was fired. Social workers quickly protested both ousters. As a licensed foster mother in New Jersey, and a former reporter who has written about children and families issues, I know that administrative shake-ups are common after child-abuse deaths come to light. Sadly, so is secrecy. It shouldn't be... Why the secrecy in Pennsylvania? One can only assume, fairly or not, that the laws are designed to protect agencies such as the DHS from outside scrutiny. If so, this is wrong. The DHS is a public agency, mandated to care and protect children in danger. Information about children who die while in the system should be readily available, just as it is in Florida. Pennsylvania legislators must change the laws that prevent the DHS from releasing information about children who die while in its care. No one wants a child to die, but when it happens, shining a light on the case is the only way to learn from mistakes and prevent other such deaths. The Jackson, Mississippi Clarion-Ledger on secret university searches: ³Whatever euphemisms Higher Education Commissioner Thomas C. Meredith wants to put on the current presidential searches for public universities, they're still secret - and wrong. Speaking at a luncheon Monday hosted by the Capitol press corps and Mississippi State University's John C. Stennis Institute of Government, Meredith called the process he has implemented for finding presidents "confidential" but "transparent." Isn't that just another way of saying openly - or blatantly - secret?² Subscribing to The ADVOCATE LISTSERVTo subscribe:
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