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The FOI Advocate
Back to The FOI Advocate Index
Dec. 11, 2003
The E-Newsletter of the National Freedom of Information Coalition
"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)
A Publication of The Freedom of Information Center
A Unit of the Missouri School of Journalism
"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
TOP OF THE NEWS
“The Office of the Vice President's unwillingness to provide the [Task Force] records or other related information precluded GAO from fully achieving its objectives and substantially limited GAO's ability to comprehensively analyze the [Task Force] process.”
-- The GAO’s final report on the Vice President’s energy task force, August 26, 2003
HOOVER HAUNTS THE HALLS: The Federal Bureau of Investigation has collected extensive information on the tactics, training and organization of antiwar demonstrators and has advised local law enforcement officials to report any suspicious activity at protests to its counterterrorism squads, according to interviews and a confidential bureau memorandum.
The memorandum, which the bureau sent to local law enforcement agencies last month in advance of antiwar demonstrations in Washington and San Francisco, detailed how protesters have sometimes used "training camps" to rehearse for demonstrations, the Internet to raise money and gas masks to defend against tear gas. The memorandum analyzed lawful activities like recruiting demonstrators, as well as illegal activities like using fake documentation to get into a secured site.
http://www.nytimes.com/2003/11/23/national/23FBI.html
http://www.chicagotribune.com/news/nationworld/chi-0311240215nov24,1,4346030.story (registration required)
FAVISH CASE BEFORE THE SUPREMES: On the FBI evidence sheet, the photographs are described in the antiseptic words of a detective.
"VF's body taken from below feet ... VF's body focusing on right side and arm ... VF's body - looking directly down into face."
They are photographs of a dead man.
On Dec. 3, the U.S. Supreme Court heard arguments in an unusual case about whether the public should be allowed to see them. The case centers on 10 photos of Vince Foster, a presidential aide whose body was found in Fort Marcy Park in the Washington suburbs in 1993. Investigators determined Foster committed suicide, but some amateur sleuths believe he was murdered.
The court has been asked to decide if Foster's widow and sister have a privacy interest in the photos. If the court determines they do, the justices must weigh those rights against the public benefit from releasing the photos.
http://www.sptimes.com/2003/11/30/Worldandnation/Privacy__access_at_od.shtml
http://www.upi.com/view.cfm?StoryID=20031120-113321-3032r
Coverage from the oral argument:
http://www.nytimes.com/2003/12/04/national/04SCOT.html?ex=1071118800&en=7abacf2177b55891&ei=5062&partner=GOOGLE
Briefs:
http://www.abanet.org/publiced/preview/briefs/home.html
NO EARNHARDT APPEAL: Meanwhile, the Court refused to hear a case The Supreme Court rejected an appeal Monday from a student-run newspaper that wanted autopsy photos of race car driver Dale Earnhardt.
Story Link
ANTI-TERROR NEWS
"They should not be trotting out federal flight-deck officers to say good things about the [TSA] program while muzzling pilots who are critical of the program. It's a double standard."
-- Brian Darling, a lobbyist for the Coalition of Airline Pilots Associations, which represents pilots at American Airlines, Southwest, UPS, Airborne Express and AirTran, in a Washington Post story on the secrecy surrounding the airport security issue. TSA spokesman Brian Turmail said any pilot is free to express his views about the program, so long as he is not identified by name.
IF A DETAINEE IS RELEASED IN THE FOREST… Reports that the Defense Department is about to release scores of prisoners from Guantanamo Bay raise questions about the status of thousands of people who have been detained in the United States since the Sept. 11, 2001, terrorist attacks.
Government officials say nearly all of those detained have been deported. But civil liberties groups say it is hard to know because of the secrecy surrounding the detentions.
By the government's count, nearly all the 762 foreigners detained on immigration charges during the investigation of the attacks by al-Qaida have been deported. About 50 people are being held as material witnesses in pending investigations. And three suspected terrorists, including two American citizens, are being held as enemy combatants by the military.
But legal experts and advocacy groups say thousands more were detained under other anti-terrorism measures, like the National Security Entry/Exit Registration System, a registry for visitors from countries where al-Qaida and other terrorist groups operate.
Story Link
BETTER GET A ZOOM LENS: If you want a souvenir snapshot of a federal courthouse, be careful where you aim your camera.
You might get quizzed as a potential terrorist.
Federal officials are so worried about security that they are suggesting - though not requiring - that picture-takers outside a courthouse get a government permit before snapping away.
Requiring a permit would violate the First Amendment, according to legal experts.
When the Rocky Mountain News started making inquiries about the security policies, every government official contacted expressed commitment to the openness of public buildings and the freedom of the press.
Story Link
WHAT’S FIVE DIVIDED BY 6400? In the two years since 9/11/01, federal investigators recommended the prosecution of more than 6,400 individuals the government concluded had committed terrorist acts or should be charged with some crime because doing so might "prevent or disrupt potential or actual terrorist threats."
The number of matters that the Justice Department classified as "terrorism" or "anti-terrorism" is sobering, considerably larger than suggested in department speeches, press releases and case-by-case news accounts.
An analysis of case-by-case Justice Department data obtained by the Transactional Records Access Clearinghouse (TRAC), however, further showed that of the individuals who were convicted only five have so far been sentenced to twenty years or more in prison and that for those categorized as international terrorists the median sentence -- half got more, half got less -- was 14 days.
As a result of a decision by the Bush Administration to withhold information that the government previously had released to TRAC, an exact count of the number of individuals who the investigative agencies recommended be prosecuted and who the prosecutors then categorized as falling into one of two categories -- "terrorism" or "anti-terrorism" -- cannot be determined although a good estimate is possible. Records have been released, however, for those investigative referrals that were then declined, dismissed, convicted or otherwise dealt with.
Story Link
SECRECY SHROUDS AL-QAIDA CASE: His name wasn't included on a public list of Hennepin County jail inmates. He stood before a federal magistrate judge behind closed doors.
The man who a law enforcement official said was arrested and jailed Tuesday on suspicion of associating with the Al-Qaida terrorist network was enveloped into the justice system, it seems, in an almost-entirely secret process.
Some people say that's a problem.
Story Link
GENERAL FOI NEWS
BLOOMBERG VOWS TO KEEP 9/11 DOCS CLOSED: New York Mayor Michael R. Bloomberg vowed yesterday to challenge a federal subpoena requiring the city to turn over records of 911 calls from the Sept. 11 terrorist attacks. He said that the request was ghoulish, and that complying would invade the privacy of the victims' families.
A federal commission investigating the attacks announced recently that it had issued a subpoena for the city's tapes and transcripts of emergency 911 calls. In a statement, the commission said that "the city's failure to produce these important documents has significantly impeded the commission's investigation."
The commission is seeking more than the 911 tapes. It also wants the firefighters' oral histories, which tell of the emergency rescue operations and conditions in the two towers.
Another federal agency also requested full access to the documents and tapes, but agreed last month to inspect the materials after names and any references to the emotional state of the callers were removed. The agency also agreed not to take copies. City officials said that they had offered a similar arrangement to the commission, but that it was rejected.
The New York Times and some relatives of those who died in the attacks have sued to make all the materials public.
Story Link
A HOW-TO ON DENIAL: A nice overview of how federal agencies evade disclosure under FOIA, complete with a description of the Department of Energy as a “rogue agency” for FOIA purposes, by Jeffrey T. Richelson, a senior fellow with the National Security Archive.
Story Link
ANOTHER SECRETIVE GOV? Howard Dean, frontrunner in the race for the Democratic presidential nomination, was on the defensive yesterday over claims he had blocked access to records from his time as governor of Vermont.
Mr. Dean insisted he had nothing to hide, and that the sealing of such documents was routine.
His rivals in the primary campaign have pointed to a candid remark to a Vermont radio station earlier this year, in which the former doctor said: "We didn't want anything embarrassing appearing in the papers at a critical time in any future endeavour."
Story Link
Dean later said he’d let a judge decide which of his files should be open:
http://www.foxnews.com/story/0,2933,105093,00.html
STATES WANT TO KNOW: Wisconsin and a half-dozen other states filed Freedom of Information Act requests Thursday with federal agencies as part of a legal challenge to new clean air rules.
The new rules make it easier to upgrade utilities, refineries and other industrial facilities without installing additional pollution controls.
In a statement, Wisconsin Attorney General Peg Lautenschlager accused the Environmental Protection Agency of abandoning a "30-year-old agency policy requiring old, air-polluting factories to clean up their emissions to modern standards."
"We want to know what motivated the EPA to put private profits ahead of public health and this FOIA request should help answer that question," she said.
The other states filing the FOIAs are Illinois, Massachusetts, New Jersey, New York, Maryland and Connecticut. The District of Columbia also filed a request.
Story Link
FOI AT WORK: The Bush administration is catching and punishing far fewer polluters than the two previous administrations, according to a Knight Ridder analysis of 15 years of environmental-enforcement records.
Civil enforcement of pollution laws peaked when the president's father, George H.W. Bush, was in office from 1989-93 and has fallen ever since, but it's plummeted since George W. Bush took office three years ago. That's according to records of 17 different categories of enforcement activity obtained by Knight Ridder through the Freedom of Information Act.
Story Link
NIXON DISSED REAGAN: President Nixon apparently didn't think much of Ronald Reagan, calling his fellow California Republican "strange" and an "uncomfortable man to be around," according to White House tapes released Wednesday.
The comments are included in 240 hours of Nixon White House tape recordings from July through October 1972 that were released by the National Archives. Nixon is heard discussing his re-election campaign against Democratic nominee George McGovern, ways to end the Vietnam War and the Watergate scandal that eventually brought down his administration.
Story Link
CALLING MR. POWELL: Public interest group TeleTruth filed a Freedom of Information Act request with the Federal Communications Commission last week, seeking, among other items, Chairman Michael Powell's telephone records from January 1 through August 21.
TeleTruth founder Bruce Kushnick says the group is concerned that FCC commissioners had inappropriate contact with members of the telecom industry during the Sunshine Period of the Triennial Review proceeding.
The Sunshine Period rules prohibit communication between industry members and members of the FCC from one week before the Commission vote until the text of the order is released. In the case of the Triennial Review, the Sunshine Period would have been from February 14 until August 20. However, industry members are permitted to present information to the Commission during the Sunshine Period on an invitation-only basis, and the presentation must become part of the public record.
Story Link
IN THE STATES
IS THIS MIC ON? Beginning Jan. 1, all public bodies must keep audio records of closed meetings, but experts said the new rule shouldn't change the way boards conduct business. Not if they're already diligently following the old rules governing closed sessions, what may be discussed in them and how that information is released, said panel members speaking at an Open Meetings Act discussion Wednesday at Parkland College.
Currently, boards must keep notes on closed sessions, but Stephen Rotello, a representative of the Illinois attorney general's office, said those notes can be very sketchy, so audio recordings will constitute complete records if litigation arises, something everyone agreed happens rarely.
If legal action is filed, Rotello said, a judge can order a board to turn over the relevant tape and he or she can review it in chambers to see if there's been a violation of Open Meetings Act rules that limit closed session discussions to subjects like pending litigation, personnel matters and several other subjects.
Story Link
THE RESPONSE TO NON-RESPONSE: Some two-thirds of those who oversee Mississippi's school districts ignored a formal request for teacher salary information that every Mississippian is entitled to under the state's open records law.
Only 47 of Mississippi's 152 public school superintendents readily provided the name, salary and years of experience for themselves, their highest paid teacher, and each high school head football coach when they were sent a written request as part of a freedom of information investigation undertaken by The Associated Press and its partners.
Story Link
ANOTHER FOUNDATION RULED PUBLIC BODY: The University of Louisville Foundation is a public agency subject to the state's Open Records Act, a Kentucky Court of Appeals panel ruled unanimously yesterday in upholding a lower court decision.
The three-judge panel, ruling in a lawsuit brought against the UofL Foundation by The Courier-Journal, said the foundation is the university's "agent" and the university controls the foundation because they "are acting as one and the same."
In its decision, written by Judge Wilfrid A. Schroder, the appeals court panel said, "We opine that the foundation and the university acting as one and the same amounts to `control.' Having concluded the foundation was established and created, and is controlled, by the University of Louisville, we conclude the trial court correctly found the foundation to be a public agency."
The decision upheld a July 2002 ruling by Jefferson Circuit Judge Steve Mershon that the foundation is a public agency. But the panel asked Mershon to reconsider the part of his ruling that said the UofL Foundation should make public the names of all corporate and private foundation donors and the amounts they gave. The panel said those decisions should be made on a case-by-case basis.
Story Link
6 IN 10 MARYLANDERS GET ACCESS: A test of Maryland state agencies has revealed that people seeking public records have about a 60% chance of getting what they are legally entitled to, and often they will face improper questioning about who they are, why they want the record and who they work for.
In response, J. Joseph Curran Jr., Maryland’s attorney general, said his office will launch a new training initiative for state agencies.
On Aug. 21, the Maryland-D.C. Delaware Press Association’s Freedom of Information Subcommittee sent reporters identifying themselves only as private citizens to 15 state agencies seeking 25 public records. Surveyors seeking teacher decertification records, driving records and restaurant inspection reports were among those who faced rigorous questioning from state workers.
http://www.firstamendmentcenter.org/news.aspx?id=12258
http://www.sunspot.net/news/opinion/perspective/bal-pe.records23nov23,0,7388702.story?coll=bal-perspective-headlines
http://news.mywebpal.com/news_tool_v2.cfm?pnpID=573&NewsID=510047&CategoryID=742&show=localnews&om=1
APPLICANT’S BACKGROUND PUBLIC? The Supreme Judicial Court heard arguments but made no immediate decision whether to release background information about an applicant for a racino license in Bangor.
Lawyers for Las Vegas investor Shawn Scott are trying to block the public release of records obtained by the Maine Harness Racing Commission.
Scott's attorney, Stephen Langsdorf, said releasing the information would amount to a "witch hunt" and have no bearing on his client's ability to operate a racino.
Story Link
EMU BUILDS A CASTLE: Eastern Michigan University spent at least $5.1 million to build, furnish and landscape a new home for its president, a figure that is $1.6 million more than publicly disclosed.
The increased price tag was compiled by The News from a review of more than 2,000 pages of university records obtained under the state's Freedom of Information Act.
The $5.1 million does not include salaries of EMU administrators who supervised building the 10,200-square-foot University House, which has living quarters for President Samuel Kirkpatrick and space to entertain potential donors.
Story Link
FOI AT WORK: Mayor Kwame Kilpatrick has charged nearly $160,000 in expenses on his city-issued credit card, paying for at least 54 trips by him and his staff, limousine rentals, nightclub forays, stays at hotels and meals.
The charges show the administration's aggressive efforts to lure developments and federal dollars to Detroit, said Howard Hughey, a Kilpatrick spokesman. Among the results of those travels were $70 million in federal funds; successful negotiations for permanent casinos and seven new hotels; and the Hard Rock Cafe, which opened last month in downtown Detroit, Hughey said.
Kilpatrick's credit card and travel records were secured through two Freedom of Information Act requests filed by The Detroit News. The records show that of $157,614 in charges, Kilpatrick has used city dollars to cover $76,278 in airline tickets for him and his staff; $44,726 in hotel costs; nearly $10,000 in meals; $3,900 in limousine rentals; and personal expenses.
Story Link
PUBLISHER ON THE SPOT: A veteran state legislator Tuesday complained about a closed luncheon to discuss an education accountability bill.
Rep. Jodie Mahony, D-El Dorado, said he doesn’t understand why the bill’s supporters haven’t put forth their plan for public debate before the House and Senate education committees.
Mahony also questioned why the publisher of the Arkansas Democrat-Gazette, who supports the bill, was involved in the closed luncheon.
Mahony said he didn’t go to the luncheon because he wasn’t invited. A state Chamber of Commerce official said Monday the luncheon would be closed to the press. "The paper didn’t host anything today," Hussman said.
For the past couple of weeks, Hussman has donated full-page ads to Arkansans for Education Reform to publicize the accountability bill.
The group "isn’t the same thing" as the newspaper, Hussman said, adding that the newspaper doesn’t "go out and hire lobbyists."
Story Link
ALOHA SECRECY: University of Hawaii President Evan Dobelle threatened to sue the Board of Regents over an annual job performance evaluation that he refuses to make public, several regents said.
The evaluation and a set of future performance guidelines were finalized in writing at the board's November meeting, but university spokesman Paul Costello said Dobelle's evaluation is a "personnel matter" and does not have to be released.
Regents, who did not want to be identified, said that at one closed-door session during the evaluation process, Dobelle threatened to call his lawyers when the board told him they would put the evaluation in writing. They cited the lawsuit threat as a reason for not releasing the final evaluation.
Story Link
WISCONSIN "SPOT CHECK" FINDS WEAKNESSES: A spot check of central Wisconsin local governments' compliance with the state's public records law turned up wide-ranging results.
Twenty area units of government in Clark, Marathon, Taylor and Wood counties all provided information about their 10 highest-paid employees - eventually.
The Marshfield School District responded within about a week, while others, like the city of Stevens Point, took about a month.
Story Link
FOI REVEALS DUIs OF STATEN FERRY SAILORS: At least five senior Staten Island ferry officers - including the second mate on the Andrew J. Barberi - have drunken-driving convictions that should have triggered suspension of their federal maritime licenses.
But neither city nor Coast Guard officials can cite any disciplinary action taken against any of the five.
Story Link
LEGISLATIVE UPDATE
KANSANS SEEK NEW EXEMPTION: Municipal officials want the Kansas Legislature to amend the state's sunshine laws so that local governments' meetings and documents about homeland security are shielded from public access. But some advocacy groups question the need for creating a special terrorism exception in the state's laws on open meetings and open records.
Overland Park officials are refining a draft of a proposal to permit the closing of records for "matters relating to preparing or preventing and responding to any act of terror or threatened act of terror." It's not yet clear just what kind of records would be covered or how "terror" would be defined.
Story Link
INTERNATIONAL
FOI GETTING AN EARLY WORKOUT: How many speed breakers have been built by the PCMC? What is the process for land acquisition? What is the budgetary allocation of a particular civic department?
For the Public Information Officers (PIOs), who are at the receiving end of these queries and more from the general public, the Maharashtra Right to Information Act has almost opened a Pandora’s box. As one public information officer jokes, ‘‘Tomorrow, I could get a query on why I’m wearing a yellow shirt.’’
But clearly citizens have their ears close to the ground. They want to know about civic processes, legal matters, money matters. And, they seem to be exercising their right to information, in right earnest.
Story Link
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, on the administration: “Open government and open records are not popular concepts with this administration. Yet they are essential to a citizenry that wishes to participate in helping the government select a wise direction in both domestic and foreign policies.
Story Link
The Chicago Tribune on Dr. Dean’s hidden files: "Memo to Mr. Straight Talk: You're supposed to be offering a fresh alternative to the status quo. Go back and re-read the advice of your own state archivist, Gregory Sanford, who accurately predicted in negotiations last year that shrouding the records in secrecy "would probably become an issue, detracting from the governor's proud record of achievement…"
Story Link
WANT TO SUBSCRIBE?
News tips? Hot FOI links for us to use? Send them to the FOI Center at foi@missouri.edu
Additional information on the FOI Center can be found at the Center's website.
The FOI Center is a part of the Missouri School of Journalism.
Send comments or inquiries to: foi@missouri.edu Or call: (573) 882-4856
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