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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July 19, 2011 2:57 PM

from amNewYork:

The public’s “right to know” has become the public’s right to wait — and in some cases, getting information from government agencies is a process that can drag on for months without a reliable response.

New York’s Freedom of Information Law (FOIL) guarantees citizens access to government documents, but an amNewYork survey of the nearly four-decade-old law found city agencies failing to reply in a timely manner and even ignoring requests outright.

Unions, advocacy groups and journalists told amNewYork they’re frustrated by how time-consuming and challenging getting information can be under the Bloomberg administration.

The New York Times was so fed up that, in December, it sued the NYPD for what it called “a pattern and practice of violating FOIL.”

“The irony is that when Michael Bloomberg ran for mayor in 2001, he promised more transparency for the police department than existed under [former Mayor] Rudy Giuliani, who was notorious for refusing to provide information to the public,” said Leonard Levitt, author of “NYPD Confidential: Power and Corruption in the Country’s Greatest Police Force.”

“Under [Police Commissioner] Ray Kelly, it is worse,” Levitt added.

Other groups say they’ve been stonewalled when asking for public records.

[...]

The public should be alarmed when information from the government is not easily accessible, said Kenneth Bunting, executive director of the National Freedom of Information Coalition.

“As a taxpayer citizen of the state of New York, you’re simply asking for your own records. They don’t own it — you do,” Bunting said.

He added that New York’s FOIL should “have more teeth” to compel government agencies to abide by requests within a stated deadline.

Visit amNewYork for the rest of the story.

July 18, 2011 3:07 PM

COLUMBIA, Mo. (July 18, 2011) – The Knight FOI Fund, a legal war chest administered by the National Freedom of Information Coalition (NFOIC), has awarded a $5,000 grant to support a Florida lawsuit that could invalidate a March 2011 ballot referendum in St. Pete Beach on the grounds that the city commission made improper, closed-door decisions authorizing the citywide vote.

Attorney Kenneth Weiss of Treasure Island, FL said he would file a lawsuit on behalf of St. Pete Beach resident Jim Anderson contending that the city made decisions authorizing the vote in illegal secret meetings in November 2010 and January 2011.

Weiss said the city has begun a practice of using so-called “shade meetings” to decide all kinds of controversial issues.

“The City has institutionalized the use of shade meetings to discuss and decide controversial issues, particularly about the city’s future development. This was done to prevent voters from learning about how and why those decisions were made, leaving the citizens in the dark,” Weiss said.

In announcing the grant, Kenneth Bunting, NFOIC’s executive director, said, “NFOIC doesn't have a stake in a Florida development squabble. But when a city government tries to use the emotions surrounding such an issue to expand how much public business it can conduct behind closed doors, it gets our attention.”

Voters approved the charter revision with 53 percent of the vote. The change to the charter allows the city commission to make decisions on development height limits without voter approval—a voter-held authority citizens had given themselves in a separate vote in 2006 over the size of future hotels and other developments in the beach community.

Weiss said the new lawsuit would show that the election should be invalidated because the commission violated the Florida Sunshine Law with the decisions it made in closed meetings. He said the city of St. Pete Beach has been using an expansive interpretation of state law that allows them to use shade meetings for “whatever they want to discuss.” Weiss also contends that the ballot language was deceptive and improperly framed.

Florida’s Sunshine Law allows officials to discuss a lawsuit, legal strategy or settlement negotiations in closed-door meetings. But the exception does not allow decisions to be made in those meetings.

City officials will likely contend that they have properly “cured” any potential violation of the Sunshine Law by discussing at a public meeting and taking official action on what transpired at the closed-door sessions. The cure doctrine is a controversial, judicially-created interpretation that has raised alarm with open government advocates.

“The access community has always been concerned with the cure doctrine because of the possibility of abuse,” said Jim Rhea, director and general counsel for the First Amendment Foundation, a Tallahassee, FL-based NFOIC organization that strongly endorsed the grant award.

Weiss previously filed a Sunshine Law suit to gain access to transcripts of previous “shade meetings” and is currently appealing the trial court’s ruling that no decisions were made in the shade meetings. However, Weiss contends that subsequent secret meetings included even more violations, and this new lawsuit is about those meetings.

The Knight FOI Fund grant, in the amount of $5,000, was announced by the National Freedom of Information Coalition, which administers the Fund that was created by the John S. and James L. Knight Foundation.

The Knight FOI Fund award was made to defray the legal costs Weiss will incur in his challenge of the city’s shade-meeting practices. Bunting and Rhea said the civic debate over the development issues are not the main concerns as far as their organizations are concerned.

“We would not expend Knight FOI Fund resources to stop a beachfront hotel, to enter the civic debate over who pays for the infrastructure surrounding it, or take a stance on how tall new developments can be,” Bunting said. “But we think those bringing this challenge make a very good argument that the city is stretching the so-called 'shade' exception beyond what current law or good government common sense now allows."

See a PDF of the release here (100 KB).

July 15, 2011 2:43 PM

It is well under the radar, but another important open government case may be making its way to the U.S. Supreme Court.

If the justices of the Court decide to take it, the case will center on whether records that were indisputably public during court proceedings can be withheld under a tortured interpretation of an investigative and privacy exemption once the court matters are over.

As ridiculous as that sounds when framed that way, that is precisely the stance the U.S. attorney’s office in Colorado and the Justice Department took. And, surprisingly, the Tenth Circuit Court of Appeals sided with them and upheld their withholding of videos and photos used and shown in open court during two trials stemming from a 1999 federal prison murder.

The video, which the government made no attempt to seal or shroud from view during the trials, showed a brutal slaying at the U.S. penitentiary in Florence, Colorado, in which two inmates murdered and mutilated a cellmate.

Prison Legal News (PLN), a scrappy monthly legal journal and news Web site that reports on prisoner rights, overcrowding and safety issues, was denied in its request for copies of the video and autopsy photos. The two inmates who were convicted of the murder were tried separately, and one of the two trials even took place after the magazine had submitted its request for the video under the Freedom of Information Act (FOIA).

The Tenth Circuit Court of Appeals ruled in January, and affirmed on rehearing in March, that the Justice Department was entitled to withhold the gruesome video on grounds that its release amounted to an unwarranted invasion of privacy.

But PLN’s attorneys and their media and open government allies contend that, under the “public domain doctrine,” records that were public in two trials cannot summarily become non-public once the trial is over. That would mirror, they say, what the federal appeals court in the District of Columbia said in a similar case in 1999 and what the Second Circuit said 2006. In fact, they say, it is well-established law that dates back at least 36 years, when the Supreme Court said in Cox Broadcasting v. Cohn, “What transpires in a public courtroom is public property.”

It is anyone’s guess whether the Supreme Court will decide to take this case. But since two other federal judicial circuits have echoed the Cox principle, seeing similar cases differently than the Tenth Circuit did, there is at least a decent chance that they will.

So far, those involved in the case do not include heavy hitters like the New York Times, the Associated Press, CNN, Hearst, ABC or other media or industry giants who are almost always among appellants or amici when important open government cases make their way to the High Court. For reasons that probably have more to do with strategy than ego, those print and broadcast giants, and the industry associations and advocacy groups who often ally with them, like to pick the cases that go up for review.

But PLN, which is no stranger to open government legal battles, could well be on its way to a Supreme Court hearing on this. Should the Supreme Court decide to take the case, it is a good bet PLN will find support from big media companies, industry associations and open government groups on the principle involved, even if they wish it was a less emotional, less controversial set of facts bringing the matter up for review.

Stay tuned.

Ken Bunting
Executive Director, NFOIC


 

July 15, 2011 11:59 AM

From OMB Watch's new executive director, Katherine McFate:

I am proud to take the helm of this important organization. That OMB Watch is so widely respected for its timely, accurate policy analysis and outstanding record of public interest advocacy is a testament to the values, expertise, and commitment of founder Gary Bass. Thanks to Gary, I have inherited a talented staff; an engaged, supportive Board; and an organization with openness, collegiality, and hard work hard-wired into its culture. Gary has been incredibly generous with his time and wisdom during this transition and I am deeply grateful. He'll always be the "wise head" of the OMB Watch family.

As OMB Watch enters a new era, we will continue to be driven by the belief that a well-functioning democracy and effective, accountable government demand an informed, engaged citizenry. OMB Watch will remain at the forefront of efforts to protect the hard-won air quality, water purity, food safety, and workplace standards that have safeguarded American families and communities for decades. We will work to ensure that information on the flow of public monies, the activities of public servants, and the performance of public investments is broadly available and accessible to all. We will defend critical public programs and build coalitions to protect current revenue streams and to create new ones.

Visit OMB Watch for the rest of the story.

July 15, 2011 11:57 AM

from Amazon.com:

This book focuses on the enactment of rights to obtain government information and on the unreported and unprecedented life and times of John Moss, one of the towering leaders of the decade. These guarantees, from the government to its citizens, are embodied in the Freedom of Information Act, the Consumer Product Safety Act, the Federal Trade Commission Improvements Act, and the Securities Investor Protection Act, among other laws. They are the product of John Moss's tenacious, uphill struggle against overwhelming odds.

Visit Amazon.com for more about and how to order the book.

 

July 15, 2011 11:55 AM

from The Detroit News:

A University of Michigan professor allegedly targeted in a smear campaign by President George W. Bush's administration sued the CIA and FBI [Wednesday].

U-M Professor Juan Cole, a prominent Middle East expert and critic of the Iraq war, sued to force the agencies to turn over any documents relating to him, according to a lawsuit filed in federal court in Detroit.

The lawsuit is a bid by Cole to prove whether the CIA illegally spied on him and what actions, if any, were taken by the agency, the Justice Department and Bush White House.

"Americans don't need permission from their government to write and publish their political opinions," Cole said in a prepared statement. "If the Bush White House pettily attempted to use the CIA to destroy my reputation by seeking dirt on my private life in order to punish me for speaking out, that would be a profound violation of my Constitutional rights."

A CIA spokesman declined comment...

Visit The Detroit News for the rest of the story.

July 13, 2011 6:11 PM

A new audit by OpenTheGovernment.org suggests that eight out of ten federal agencies have taken at least some steps since Sunshine Week to make readily available information about their staffs, legislative agendas and reports to Congress reports-—documents and information to which there is no dispute that the public is entitled.

But the audit shows that only six of 29 agencies for which responses were reviewed are fully compliant with promises made by the White House about proactive steps that all federal agencies can and should take. Whether you see that as a glass mostly full or one mostly empty may depend on how much patience you are inclined to have toward an administration that took office in 2009, promising to be the most transparent administration in U.S. history. The new audit also mirrors an overarching theme of a number of studies released during Sunshine Week, which tended to show the Obama administration has made some progress in making the federal government more open, but that there is a lot more that can be done.

That mixed record, coupled with the Administration's zealousness to prosecute whistle-blowers, has left many open government and free speech advocates underwhelmed and unimpressed.

The simple, easy-to-deliver-upon proactive steps toward openness promised in a March 14 blog on the White House Web site by Steve Croley, special assistant to the President for justice and regulatory policy, included posting on-line, at any citizen's fingertips, agency directories, all official testimony before Congress and all agency reports to Congress required by statute. But OpenTheGovernment.org's audit, announced last week, shows that the only federal agencies that have produced open government plans and made available all the specified information are the Agency for International Development, the Department of Housing and Urban Development, the State Department, the Environmental Protection Agency, the Small Business Administration, and the Nuclear Regulatory Commission.

Some may see these small steps toward more transparency as largely symbolic. But it is more significant for those who feel that a key toward making the government more transparent is changing a culture of resistance and non-disclosure to one in which the government assumes an affirmative obligation to provide information to citizens. Regardless, it will be good to keep an eye on the process between now and next Sunshine Week to see if the gesture makes a significant difference.

The informative new OpenTheGovernment.org audit only dealt with the easy, low-hanging fruit from Croley's Sunshine Week blog. The blog itself touched on a number of arguably more substantive reforms aimed at greater transparency and a January 18, 2011 Presidential Memorandum outlined additional proactive disclosures federal agencies were directed to make this year regarding compliance with, and enforcement of, regulations.

You can read about the audit in more detail at http://www.openthegovernment.org/node/3161.

Ken Bunting
Executive Director, NFOIC

July 13, 2011 5:15 PM

From OMB Watch:

On June 13, President Obama signed an executive order (E.O.) initiating the "Campaign to Cut Waste." The E.O., titled "Delivering an Efficient, Effective, and Accountable Government," builds on many of the administration’s previous reforms while borrowing some of the better tools developed to execute and oversee the American Recovery and Reinvestment Act (Recovery Act). However, its impact may be reduced due to recent budget cuts to a key government transparency fund.

[…]

The president’s latest initiative, which is another broad effort to cut waste and streamline the government, builds on previous successful reforms – including the Accountable Government Initiative, which imposes cost-cutting goals on federal agencies – while making use of some of the Recovery Act’s more effective oversight tools. The administration tasked Vice President Joe Biden with overseeing the new program.

[…]

A tug of war between OMB and federal agencies over the proper amount of disclosure has ensued over the last several months with no solution in sight, but OMB is still promising that it is just a "few weeks" away from the launch of a publicly available performance website. Proposed cuts to the E-Gov Fund could push that release back indefinitely.

Visit OMB Watch for the rest of the story.

July 13, 2011 4:58 PM

From the Idaho Reporter:

One national group that urges people to “follow the money” when it comes to state politics says Idaho’s sunshine law for lobbyists leaves out some key information that other states require, including lobbyists’ take-home pay from groups and companies that hire them.

The National Institute on Money in State Politics says Idaho is one of 17 states that don’t report lobbyists’ compensation. Idaho is also among the majority of states that don’t perform routine checks on lobbying reports – only a dozen states do such audits.

“If you don’t have to report that, then you’re missing out on what a company spent on lobbying, because most of it is that they pay a lobbyist to advance their interest,” said Denise Roth Barber, the institute’s managing director. The institute, which runs the website FollowTheMoney.org, kicked off its efforts at tracking state lobbyists’ activities by releasing a breakdown of state’s laws and ease of access to lobbying data.

Visit Idahoreporter.com for the rest of the story.

July 13, 2011 2:56 PM

A Native American newspaper in a remote area of northern California has learned the hard way that First Amendment’s safeguards do not necessarily apply on a tribal reservation.

The two-person staff of the Two Rivers Tribune in eastern Humboldt County, a weekly newspaper owned by the Hoopa Valley Tribe, was ordered by tribal authorities to cease publication “effective immediately.” The Hoopa Valley Tribal Council, while citing financial considerations, made clear that displeasure with the Tribune’s editorial policies figured prominently in the decision to shut down the newspaper.

Council chairman Leonard Masten, in a memo to the Tribune staff, said that he was “very disappointed” in recent articles published in the paper, apparently referring to an interview with a fugitive and news coverage of a ballot initiative to legalize marijuana. He said these articles were “not in the best interest of the tribe.”

Hopefully Masten and other Council members will come to their senses and realize that the Hoopa tribe’s members are best served by a publication that is independent of the tribe’s government. Even though tribal authorities, as the Tribune’s owners, may have the power to dictate what stories the paper publishes, their exercise of that power is an offense to the tribal members–the voters–who elected them and to whom they are, in theory, accountable.

Voters want a real newspaper, not a tribal propaganda organ.

Peter Scheer
Vice President, NFOIC, Executive Director, First Amendment Coalition

July 13, 2011 2:20 PM

The Israeli Parliament recently passed legislation to bar public calls for a boycott against Israel or its West Bank settlements, according to the New York Times. The law’s supporters said it was necessary to push back against what they described as a strategy to delegitimize Israel in the eyes of the world.

Am I the only one to see the irony here? Suppressing calls for boycotts or other demonstrations, ostensibly to protect against challenges to a government’s legitimacy, is akin to shutting down a university in order to counter an assault on academic freedom, or canceling an election to thwart threats to democracy. Or, to paraphrase US policy proclamations during the Vietnam War, destroying a village in order to save it.

Israel, which is not only the oldest democracy in the Mideast, but, even following the Arab Spring revolutions, the freest Mideast country by far and the most protective of individual liberties, ought to know better than to engage in this sort of legislative doublespeak.

The way to protect Israel’s legitimacy is by protecting speech and expressive (nonviolent) conduct that contests Israel’s legitimacy, whether from Israeli citizens, Palestinians in the occupied territories, or neighboring countries with which Israel remains formally at war. Israel is strengthened by its tolerance of criticism.

Peter Scheer
Vice President, NFOIC, Executive Director, First Amendment Coalition

July 13, 2011 1:23 PM

The state of Vermont has taken a big step in the direction of more open government by amending its FOI law to allow for awards of attorney's fees to successful requesters. Why does this matter? Recalcitrant government agencies generally are not at risk for penalties for improperly withholding records. (Indeed, one can argue that they actually have disincentives to disclose, but that's another matter.) Few requesters, having been denied records, have the motivation and financial resources to hire a lawyer and file suit.

The presence of a "fee-shifting" provision in a state's FOI law makes agencies think twice before turning down valid record requests. Frustrated requesters have a chance of finding a  competent lawyer who will represent them for free---based on the expectation that the lawyer will succeed in the lawsuit and have his fees paid by the government agency. No bureaucrat wants to be responsible for her agency's having to write a check for $10,000 (or more) for a plaintiff's attorney's fees, particularly in a period of tight budgets.

Vermont's amendment, §319 of the Vermont Statutes, requires a public agency to pay a requester's legal fees where the requester "substantially prevails" in litigation to compel access to records. This is essentially the same standard that is in the federal FOIA law. However, as pointed out in a recent commentary by Brittany Griffin Smith (in the Citizen Media Law Project, http://bit.ly/pb3JTu), Vermont's statute also gives government agencies a second chance to comply with a valid FOI request.  After a suit is filed, an agency has the option of conceding that the records are in fact public and disclosing them. In that scenario, the judge has discretion NOT to award attorney's fees to the requester.

Peter Scheer
Vice President, NFOIC, Executive Director, First Amendment Coalition
 

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