FOI Advocate News Blog

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The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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August 7, 2014 7:42 AM

The FOIA Improvement Act of 2014 (S.2520) (“FIA”) sets out to make various tweaks to a key federal access to information statute, the Freedom of Information Act (“FOIA”). Below, I overview some of the most significant changes the bill would make, and comment on just how dramatic those would be relative to existing law and practice.

By way of summary, the bill’s marquee innovation would be to import a new balancing test into a FOIA exemption for privileged executive branch memoranda and like materials—thereby making it theoretically a bit easier for more such information to get out into the world than before. And you probably like that, if you want to make it tougher for the executive branch to withhold things like, say, Justice Department legal analyses of controversial FBI investigative powers. Additionally, and among other things, the bill would codify some more disclosure-ish values and practices the Obama Administration adopted early on in its approach to information management, call for broader storage of information in electronic rather than paper form, and add on some more fulsome transparency features.

It remains to be seen whether FIA will become law—or just how the executive branch then would implement FIA’s directives. (All this seems to be a ways off: so far, the proposal has been introduced in the Senate, but seen no other action.) I count four significant alterations to FOIA, which FIA would make after passage by Congress and signing by the President. Continue>>>
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August 7, 2014 7:38 AM

Laws such as the federal Freedom of Information Act and the Utah Government Records Access and Management Act were designed as ways to keep the things government entities do in the sunlight. The idea is that people should have access to what their government is doing. Being able to see what government entities are doing is vital to maintaining a society that embraces democratic principles.

However, too often bureaucrats hide behind FIA and GRAMA as a way to put off, obfuscate or just not be bothered. A recent example is the United States Department of Labor Mine Safety and Health Administration’s refusal to comment on an industrial accident in Richfield. One of the jobs of newspapers, is to dispel false rumors through finding accurate information from credible sources.

When MSHA refuses to comment on something, citing that it is an active investigation, it is adding fuel to a fire of possible false rumors. This is especially true when there is no timeline or even an estimate as to when an investigation will be concluded. Sometimes, governmental agencies use tactics like keeping an investigation open to outwait journalists and others in an effort to avoid giving out information. Continue>>>
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August 7, 2014 7:36 AM

Fulfilling a campaign promise by Mayor Betsy Price, Fort Worth is jumping on the open data government bandwagon. Last month, the city launched an online portal that provides direct access to a wellspring of public information.

Open data sites like the city’s new data.fortworthtexas.gov are based on the principle that government data is a public asset — like parks and roads — and should be made readily available to everyone.

Michele Gutt, the city’s director of communication and public engagement, told council members in April that improving access to public data will not only improve government accountability but will also increase efficiency.

For example, the city could post performance goals on the website and track their measurement for all to see. It could also free up staffers in departments that spend undue amounts of time tracking down data for constituents. Continue>>>

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August 7, 2014 7:35 AM

The woman hired six years ago to oversee sweeping changes to Pennsylvania's open records law is waiting to see if she still has a job. More than three months since her six-year term expired as executive director of the Office of Open Records, Terry Mutchler doesn't know whether Gov. Tom Corbett will reappoint her to a second term.

Mutchler, a former Associated Press journalist, took the $142,358-a-year post after lawmakers voted in 2008 to grant unprecedented access to the inner workings of public agencies. “Every day you come in (and), for me and my family, we wonder if that's my last paycheck,” Mutchler said. “I'm willing to take that, but it's very, very stressful on the staff.”

Corbett spokesman Jay Pagni said the governor will decide “at the appropriate time.” Mutchler said that as a “liberal Democrat, out-lesbian,” she might be out of Corbett's comfort zone — but said, on balance, her deputy, Nathan Byerly, is a conservative, straight man who voted for Corbett. Continue>>>
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August 7, 2014 7:34 AM

Bozeman has joined the state of Montana’s open government push as the first city to publish local databases on a state website. The website, data.mt.gov, contains 36 datasets. It includes all public information about the facilities leased by the state and employee pay information, among other databases. Four datasets from the city of Bozeman include all building permits issued since 1996 and city zoning districts.

The site was part of the governor’s push for greater transparency in government and increased efficiency, said Audrey Hinman, bureau chief for the Application Technology Services Bureau for the state chief information officer. It went live on June 30 to little fanfare. The state plans to widely trumpet the site once it has more datasets and staffers gain more experience with it.

Bozeman was brought into the fold after partnering with the state on the Montana Site Selector, a similar project that melds city and state land data. City staffers’ “very aggressive” approach to making city data publicly available made Bozeman spring to the top of the list once the governor and state chief information officer decided to open the website to local governments, Hinman said. Continue>>>
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August 7, 2014 7:32 AM

More than 40 people attended a forum by Executive Director of the State Committee on Open Government Robert Freeman Thursday, July 31. During the meeting, Freeman briefly explained the intricacies of the Freedom of Information Law (FOIL) as well as the Open Meetings Law, answering many questions from the crowd relating to situations they have witnessed in local governments. The meeting was held at the Tyrone Fire Hall and was sponsored by resident Alan Hurley, Friends of Tyrone, SCOPE and the Odessa Tea Party.

While Freeman said his office holds no power to actually enforce the FOIL and Open Meetings Law, he offers advice and opinions to those with inquiries. He said the Open Meetings Law pertains to meetings of public governmental bodies consisting of two or more members either elected or appointed to carry out some statutory function. Freeman said notice must be given to media and posted in designated public locations not less than 72 hours prior to a meeting, and are also required to give notice online as well if practicable. He said the law went into effect in 1977, adding any gathering since then that is a quorum for conducting public business is considered a public meeting, even if no action was taken. Amendments that clarify and reaffirm one’s right to hear the deliberations of public bodies became effective in 1979.

Freeman warned those who attended about words like “workshop” and “work session” being fictional terms, adding even if no action is taken it is still considered a public meeting and must be open to the public. He said special meetings have a special provision requiring at least a two day written notice to town board members, with notice given to the public and news media “to the extent practicable.” Freeman said with the Internet being accessible to most municipalities, it is fairly easy to post notification of a meeting beforehand. Continue>>>
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August 7, 2014 7:30 AM

A member of the Olympia Planning Commission was recognized for taking a stance on open public meetings, but not everyone applauded.

Judy Bardin received a Key Award from the Washington Coalition for Open Government, a nonprofit, nonpartisan organization that defends open-government laws. She was honored for blowing the whistle on a series of private meetings between other commissioners and developers. But the award drew stinging comments from her fellow commissioners, who defended the meetings as legal and said they felt maligned by her “false accusations.”

In March, Bardin objected to two off-the-record meetings that had taken place this year between developers and planning commission members. Bardin said the private meetings had compromised the commission’s integrity because one participant, developer Jim Morris, had an interest in a proposed zoning amendment. Bardin urged commissioners to table the amendment, which would have expanded the maximum size of commercial buildings near Kaiser Road and Harrison Avenue. Continue>>>
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August 6, 2014 6:29 AM

A new court of appeal ruling could make it easier for journalists to request data under the UK Freedom of Information Act in a specific file format.

The decision relates to a 2010 FoI request to Buckinghamshire County Council for information about the 11+ school entry exam to be supplied "in Excel format". When the council complied with the FoI request a month later, it supplied the applicant, Nick Innes, with 184 pages of data in PDF format instead.

Appeal court judge Lord Justice Underhill said in last week's ruling: "The result of course was that, although he had all the information for which he had asked, it could not be manipulated or processed in any of the ways permitted by the standard Excel software (e.g. generating graphs or tables or performing statistical analyses)." Continue>>>

August 6, 2014 6:27 AM

Two loaded and two empty crude oil trains operate daily over Amtrak’s Northeast Corridor in Maryland and Delaware, according a document submitted by the passenger railroad in response to a Freedom of Information Act request.

Last month, Norfolk Southern, the freight railroad that operates the crude oil trains, went to court in Maryland to block the state Department of the Environment from making the same information available to McClatchy and the Associated Press.

The Amtrak document also contains some details of Norfolk Southern’s crude oil train operations in Pennsylvania. That state last month denied requests from McClatchy and the Pittsburgh Post-Gazette to provide information about the shipments. Dave Pidgeon, a Norfolk Southern spokesman, declined to comment. Continue>>>
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August 6, 2014 6:25 AM

Tax Analysts recently requested, under the Arkansas Freedom of Information Act, “copies of all field audit manuals and audit training manuals.” The Arkansas Department of Finance and Administration sent back a misguided response. Revenue Legal Counsel Joel DiPippa, who wrote the letter denying Tax Analysts’ request, said Arkansas law limits the inspection and copying of public records to “any citizen of the State of Arkansas.” Neither the reporter who requested the audit manuals nor Tax Analysts is an Arkansas citizen.

The denial is a reminder of a limitation in a few states’ public records acts. Several other states, including Alabama, Missouri, New Hampshire, New Jersey, and Tennessee, also impose a similar “citizen” limitation. Unfortunately for journalists and researchers, the right to impose such a limitation was upheld by the U.S. Supreme Court in 2013. In that case, McBurney v. Young, the Court upheld Virginia’s right to limit the application of its public records act to Virginia citizens.

Justice Samuel Alito, writing for a unanimous Court, said, “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.” The opinion went on to conclude that Virginia’s law does not run afoul of the dormant commerce clause or the privileges and immunities clause. All in all a disappointing opinion that failed to take into account the importance of providing access to public records. Continue>>>
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August 6, 2014 6:21 AM

The US Electronic Privacy Information Center (EPIC) has issued a lawsuit against the FBI, as it continues its push for more information about surveillance practices. EPIC has released a statement in which it explains that it has filed official papers in which it demands access to the results of internal FBI "privacy impact assessments".

"EPIC has filed a Freedom of Information Act lawsuit to obtain details about the Federal Bureau of Investigation's surveillance programs. The agency is required to conduct privacy impact assessments when it collects and uses personal data," it said. "However, the Bureau has failed to publicly release privacy impact assessments (PIA) for many of its programs, including facial recognition, drones and licence-plate readers."

The FBI is required to release the information by the guidelines of the US Justice Department and through the rules of the E-Government Act. EPIC said that such information is expected to be released if it is "practicable". Continue>>>
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August 6, 2014 6:19 AM

One of my favorite TV shows in the ‘80s was the “People’s Court,” where average citizens argued small cases in front of feisty Judge Joseph Wapner. The show inspired an entire genre of quasi-real courtroom programs that continue to populate the airwaves today with the likes of Judge Judy, Judge Joe Brown, Judge Mathis and several others.

As for the “People’s Court,” I can still picture emcee Doug Llewelyn advising viewers not to take the law into their own hands. “You take ‘em to court,” he’d say.

And decades later, that’s our approach at the Better Government Association in disputes with public agencies over the Illinois Freedom of Information Act.

Citizens and media outlets typically haggle with government officials over the interpretation of FOIA when their requests are denied. Some adjust their submissions or ask the Illinois Attorney General to step in or simply give up. Continue>>>
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