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 13, 2011 8:11 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 7:15 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 6:58 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 4:56 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 4:20 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 3:23 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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