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The FOI Advocate
Back to The FOI Advocate Index
April 16, 2004
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 breadth of what they are asking for is a little breathtaking. The question is, how deeply should the government
be able to control the design of the Internet? . . . If you want to bring the economy to a halt, put the FBI in charge
of deploying new Internet and communications services."
-- James Dempsey
FAVISH A 9-0 BROADENING OF PRIVACY: The Supreme Court ruled unanimously that the release of the death-scene photographs of Vincent Foster, the Clinton administration's deputy White House counsel who killed himself in 1993, would be an unwarranted invasion of the privacy of Foster's surviving family members.
The court said the photographs should be shielded from disclosure in a suit brought under the Freedom of Information Act by a California lawyer, Alan Favish, who said he doubted the conclusion reached in five investigations that Foster committed suicide.
Favish's "bare suspicion" was an insufficient basis for overcoming the family's privacy rights in light of the scope of the official investigations, the court said, adding that courts should not have to "engage in a state of suspended disbelief with regard to even the most incredible allegations."
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which filed a brief for Favish, said the ruling would impede public disclosure of information about suspicious deaths. "I don't know how you can expect requesters to prove a negative before they are entitled to a record under the Freedom of Information Act," she said.
Analysis by Tony Mauro
FAVISH’S EFFECTS ALREADY BEING FELT: The Orlando Sentinel and the South Florida Sun-Sentinel dropped their legal
challenge Monday of a Florida law passed after the death of NASCAR driver Dale Earnhardt that restricts public access to
autopsy photographs.
The newspapers, which are owned by Tribune Company, filed a lawsuit in Broward County after that county's medical examiner
refused access to requested autopsy photos. The newspapers said the restriction violated the Florida Constitution.
In the Broward case, the newspapers sought autopsy pictures in order to demonstrate the public's interest in obtaining such
images. The 4th District Court of Appeal in West Palm Beach was scheduled to hear the legal challenge later this month, but
the newspapers voluntarily dismissed the case Monday. Charlotte H. Hall, vice president and editor of the Sentinel, said
Monday the decision to drop the case came after the U.S. Supreme Court ruled in a separate case involving photographs of former
deputy White House counsel Vince Foster.
Story Link
FEDERAL JUDGE ORDERS RELEASE OF CHENEY DOCS: A federal judge ruled Thursday that the Bush administration must
release thousands of pages of documents related to a White House task force that met behind closed doors to develop a
national energy policy.
The ruling, by Judge Paul L. Friedman of Federal District Court here, was a victory for the Natural Resources Defense
Council, an environmental lobbying group, and Judicial Watch, a conservative legal group. The two organizations have
been trying to find out whether the task force, headed by Vice President Dick Cheney, was heavily influenced by energy
executives and lobbyists.
But the ruling does not necessarily mean the documents, numbering in the thousands, will be released any time soon,
because the administration may appeal.
A separate lawsuit aimed at forcing the energy task force to disclose what advice it received from industry members
is scheduled to be argued before the Supreme Court this month.
Story Link
OF CLASSIFICATION AND POLITICS: If President Bush decides as expected to release a secret document
describing omens of a catastrophic terrorist attack in 2001 (which he did a bit later -- ed.), it would be the
latest example of how political imperatives sometimes force officials to set aside the government's normal procedures
for classifying and declassifying national security information.
Federal rules establish detailed procedures for releasing such information.
But those rules can be suspended when officials want to disclose information to serve an overriding purpose.
The White House did that last year, when it made the case for war in Iraq, and the administration has done it again
in recent weeks to buttress its defense of Bush's record in combating terrorism.
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.
FERC RULES AS BENIGN AS THEY SAY? One year after clamping tough rules on the release of sensitive
information on "infrastructure" such as pipelines, transmission lines and dams, Federal Energy Regulatory
Commission officials say the new anti-terrorism policy is working. All but a handful of requests for access to
those restricted records have been granted, the commission reported last month.
But a Mobile Register review indicates that utilities and the commission are also using the new rules to cut the
public availability of many materials seemingly of little value to would-be bad guys. Those records include
environmental reports, recreation studies -- and in the case of one Oregon utility -- plans for stump removal.
Story Link
GENERAL FOI NEWS
SHOCKING NEWS! FOI supersleuth Mike Ravnitsky finds documents revealing that Supreme Court Justice
Scalia fought against 1974 improvements to the Freedom of Information Act. Documents from the time period show
that Scalia actively worked to keep the FOIA weak and unenforceable.
The Memory Hole
Story Link
FOI AT WORK (AT THE CIRCUS): Should elephants perform in circuses?
It's a simple question that's caused a lot of controversy over the years.
At the heart of the matter are allegations by animal-welfare activists that brutal training methods are used to coerce elephants—which can weigh as much as 8,000 pounds (3,600 kilograms)—into performing tricks such as headstands.
Michael Markarian, president of the Fund For Animals in Silver Spring, Maryland, says his organization has compiled a report containing hundreds of records obtained through the Freedom of Information Act. The report shows the USDA closed investigations prematurely and overrode its own inspectors' determinations of violation of the law—allowing Ringling Brothers to claim that there is no truth to any allegations that it abuses its elephants.
Story Link
CLEANING UP, FCC STYLE: Since Federal Communications Commission Chairman Michael Powell promised seven months ago to "substantially reduce" travel funded by outside sources, the agency has accepted $90,000-worth of free trips, according to an analysis by the Center for Public Integrity.
FCC spokesman David Fiske told the Center in February there would be no more industry-funded travel by commissioners and "decision makers" at a "high level."
While travel by the highest-level FCC employees has all but ceased, records obtained through a Freedom of Information request show there have been plenty of industry-funded trips taken by upper-level managers.
Story Link
TimBERRRRR! The Forest Service has been accused of misrepresenting forest conditions by using misleading photographs
in a brochure that urges more logging to prevent wildfires in the Sierra Nevada.
The pamphlet, created by a public relations firm, explains that fire risks have risen as the Sierra's forests have grown more dense the past century. Six small black-and-white photos spanning 80 years appear beside descriptions of how the ``forests of the past'' had fewer trees and less underbrush, making them less susceptible to fire.
The 1909 photo shows an open, park-like forest with large trees spaced widely apart. More trees and underbrush appear in each successive picture--1948, 1958, 1968, 1979--and finally a photograph thick with trees in 1989.
``Today's forests, dense with green, may seem beautiful, but in fact are deadly,'' the pamphlet reads. ``Our old-growth forests are choking with brush, tinder-dry debris and dead trees which make the risk of catastrophic fire high.''
However, the 1909 photo does not depict natural conditions--it was taken just after the forest had been logged.
Story Link
ENVIRO GROUP FILES SUIT OVER NIH RECOARDS: Concerned over the federal government's lack of forthcoming, Friends of the Bitterroot recently filed a complaint based on the Freedom of Information Act.
The organization - an environmental and public process watchdog - contends the National Institutes of Health is withholding information pertaining to the construction of a biosafety level 4 facility at Hamilton's Rocky Mountain Laboratories, which is part of the agency as a component of the National Institute of Allergy and Infectious Diseases.
"We're requesting information and we're being denied access to it," said Jim Miller, president of the environmental group.
The suit filed in Missoula's Federal District Court is a follow-up on a Freedom of Information Act request by Friends of the Bitterroot filed in 2002. NIH responded to that request with hundreds of pages of documents, but some of those documents were copied illegibly and others had sections missing, Miller said.
Guidelines for the Freedom of Information Act stipulate that information can't be used for commercial interest of the requester. Miller said his organization educates people beyond its membership, including holding public meetings and sending information to public officials.
In 17 years of involvement in public process, Friends of the Bitterroot hasn't been denied access to public documents, nor has it been charged, Miller said.
Story Link
IN THE STATES
SO MUCH FOR THE PUBLIC INTEREST: The names, photos and records of all former prison inmates in Ohio have been removed from the Department of Rehabilitation and Correction's Web site. All that remains are the names of inmates still behind bars.
Corrections Director Reginald Wilkinson said on March 31 that the change was prompted after years of complaints by former inmates and their families, who said the Web site made it difficult for them to turn their lives around.
"We have found ... because certain former inmates have their picture on the Web site, it's been a disadvantage for them and an embarrassment that has kept them in some cases from getting jobs, and we think that is unfair," he said.
"We think that at some point we have to retire the debt that these folks have paid."
Story Link
FOI AT WORK: A report released this week by the Iowa Public Interest Research Group showed that in a period of just 18 months, 71 percent of Iowa's industrial and city facilities exceeded their Clean Water Act permits - including 11 such violations in Iowa City. The information was obtained from Natural Resources reports submitted by the largest industrial and municipal facilities through a Freedom of Information Act request.
Locally, violations stem from Iowa City's two wastewater-treatment plants, 1000 S. Clinton St. and 4366 Napoleon St., which release water into the Iowa River. The plants, among 130 major facilities across Iowa, were classified as "repeat offenders" for their numerous violations.
Iowa ranked ninth in the country for the percentage of facilities exceeding pollution permits and eighth in the amount of pollutants exceeding those permits.
The Clean Water Act, enacted more than 30 years ago, was intended to make all U.S. waterways safe for fishing, swimming, and other uses by 1983 - a goal I-PIRG officials said has yet to be reached.
Story Link
FOI AT WORK: Ann Arbor school officials haven't followed their own established practices in conducting criminal background checks of custodians and bus drivers and maintaining records of the checks, a month-long Ann Arbor News investigation has found. In many cases, it's not clear whether they followed state law governing such checks.
investigation prompted the district to suspend an elementary school custodian without pay on Thursday after school officials learned that the man had pleaded no contest in a sexual assault on a 9-year-old girl in 1986.
After analyzing hundreds of pages of criminal background check documentation from the school district and conducting criminal checks on about 130 district employees, The News learned:
Story Link
A NICE WIN IN S.C.: The York County Sheriff's Office must release to the media disciplinary records from a 4-year-old case of improper conduct involving four deputies, the state Court of Appeals has ruled.
The Sheriff's Office had refused to release the records, saying the department is not a public agency and the case involved a personnel matter. The Herald sued, and the court ruled Monday that the sheriff's office is a public body and the records involved the public conduct of deputies. That means the disciplinary records fall under the state's Freedom of Information Act.
Story Link
COURT RECORDS: $15 A POP: Despite criticism that a $15 fee for access to public court documents is unfair and has been inappropriately enforced, the chief justice of Maine's Supreme Judicial Court is standing firm on the policy.
Chief Justice Leigh Saufley imposed the fee - for record checks that require research by court clerks - in order to ease the rising workload of court offices around the state.
But since its adoption last September, the research fee has been blamed for reducing access to public records, making it harder for lawyers to defend their clients and raising the cost of background checks by potential employers.
Story Link
FOI AT WORK: Gov. George Pataki's office said Monday it has no public record showing he reimbursed a campaign donor doing business with the state for a vacation that has been questioned. A state Ethics Commission ruling in December said Pataki provided documents showing he paid the donor back.
In a letter received Monday by The Associated Press, Pataki's office said it "does not possess or maintain any documents that are responsive" to a state Freedom of Information Law request first made Dec. 31 by the AP. The letter was signed by Christopher Staszak, assistant counsel to Pataki. State ethics law prohibits state employees from taking gifts worth more than $75 from a "disqualified source" -- anyone who does business with the state and who could gain favor with the gift.
"It was a personal vacation, which explains why there are no public documents although a personal canceled check was shown to and verified by the Ethics Commission," said Pataki spokesman Kevin Quinn. "The governor and his wife have a right to pay for and take a personal vacation."
He said there's no legal requirement to produce the check publicly.
The Freedom of Information Law defines a record subject to disclosure as "any information kept, held, filed, produced or reproduced by, with or for an agency or the state Legislature, in any physical form whatsoever."
The governor's response to the Freedom of Information request means neither his office nor the Ethics Commission kept a public record of the reimbursement Pataki said he made.
Story Link
IMPEACHMENT RECORDS MIGHT BE SEALED: Connecticut General Assembly leaders expect to take action this week on the impeachment panel’s request for authorization to keep some of its records secret at least until the investigation is over.
The impeachment panel’s lawyers are planning to take depositions from four witnesses on Thursday and Friday.
Rowland has admitted to accepting thousands of dollars in gifts from state contractors, political appointees and others but insists he never used his office to help anyone that gave him things or did him favors. Rowland said he’s broken no laws and won’t resign.
Ross H. Garber, legal counsel to the governor’s office, warned in a letter to the impeachment committee’s lawyer that taking secret depositions would violate the state’s Freedom of Information law. Garber wants to have a lawyer for Rowland present when witnesses are giving sworn statements.
Garber said the panel’s request for legislative action to authorize keeping some records secret during the investigation is an indication that the committee’s members "recognize they are on shaky legal footing."
"It would be a grave mistake to have these proceedings occur in secret," Garber said, claiming the public won’t have any faith in decisions the committee makes if any of its actions are conducted behind closed doors. But Garber declined to say if he would file a court challenge if the committee goes through with the secret depositions.
But state Rep. Michael P. Lawlor, an East Haven Democrat who is a member of the impeachment panel, insisted that the committee is using the same kind of deposition procedures as have been used in other impeachment investigations in other states.
Story Link
E-MAIL AGAIN... When members of the community preservation committee responded to an e-mail from their chairman seeking opinions on grant applications, most saw the exercise as an innocuous way to conduct a straw poll on the merits of the requests, saving time when the group next met.
In fact, committee members were violating the law.
In an opinion issued this week, Barnstable County First Assistant District Attorney Michael Trudeau stated that the communication could be considered a violation of the state’s open meeting law because committee members were deliberating in private, outside of a legally posted public meeting.
The incident illustrates one of the traps created by the ease and convenience of e-mail. The simple act of dashing off a quick note or participating in an on-line chat holds the potential of violating the law. And, unbeknownst to many town officials and volunteer committee members, those e-mails are usually public records and must be preserved and supplied to anyone upon request.
Story Link
COACHES’ SALARIES ARE A PUBLIC RECORD: The state's highest court ordered the University of Maryland yesterday to release its pay packages for two high-profile coaches - a ruling that is likely to lay bare the contract of any public employee.
UM officials, who for two years fought requests for the coaches' deals, said yesterday that they need to review the Court of Appeals decision in a suit brought by The Sun before revealing the contracts of basketball coach Gary Williams and football coach Ralph Friedgen.
Though the ruling dealt with the contracts of the coaches, legal experts said last night that it appeared to apply to all state and local officials, some of whom have until now had to disclose only their salaries.
Experts said the ruling could make available the contracts of every taxpayer-funded employee in Maryland, revealing all the benefits and perks often bestowed on such officials as college presidents.
Story Link
FOI AT WORK: YOUR MAYOR, YOUR AGENT Galesburg Mayor Bob Weston collected a total of about $9,000 in commissions over five years for health insurance his agency provided for city employees, records indicate.
Weston's personal stake in the city's health insurance is among several complaints a recall committee has made against him, but it is not part of ballot language for a recall election of Weston and four other Galesburg City Council members.
A March 7 Kalamazoo Gazette report on the political strife in Galesburg detailed how Weston had been receiving commissions on the city's health insurance since before he joined the City Council in 1990. Most current council members said they were unaware of the arrangement until councilwoman Deloris Crittenden raised it last summer. The city has since switched coverage to a different agency.
Story Link
LEGISLATIVE UPDATE
DELAWARE BILL CLEARS SENATE: An amended bill that would provide the media and residents access to Delaware's criminal justice database, but omit names of police officers in the database, cleared the state Senate on Thursday.
On a 20-1 vote, the Senate approved a version of House Bill 319 and sent it back to the lower chamber for a vote, which House Majority Leader Wayne Smith, R-Clair Manor, said could come next week.
Under the compromise struck between the Delaware Justice Information System and The News Journal, the media and residents will not be given the names of police officers in the database. Instead, officers will be assigned a number that can be tracked to record their activities.
The amended bill also would require information be made public on where arrests were made and actions that did not result in convictions.
http://www.delawareonline.com/newsjournal/local/2004/04/02senateoksamende.html
Gov. Ruth Ann Minner said she plans to sign a bill allowing limited public access to Delaware's criminal justice database.
http://www.firstamendmentcenter.org/news.aspx?id=13164M
UM LOOKS TO CLOSE UNIVERSITY INVESTMENT RECORDS: The University of Michigan and state Legislature are looking to amend disclosure laws in an effort to reduce company concerns regarding the privacy of their relationship with the University.
A bill recently passed by the state House of Representatives and Senate (Senate Bill 1032) will provide increased confidentiality for corporations receiving University investments, claiming it will create a more competitive economy in the state by allowing companies to keep secret their business relationships.
Sen. Valde Garcia (R-Howell), the bill’s chief sponsor, collaborated with University officials earlier this year in an attempt to create an amendment to the Confidential Research and Investment Act, which specifies that investments held by public entities must be made publicly available. The amendment would change the disclosure policy the University has with its corporate investments, allowing the University to withhold its investment portfolios from public inquiry. The new law makes the act consistent with existing laws regarding pension, which are also not disclosed.
Each year, the University invests close to $3.5 billion in corporations to keep a diverse investment portfolio, University records show.
The writers of the bill consulted with the Michigan Press Association and followed its recommendations to keep certain investment data open. For example, names of all companies in which the University invests and the aggregate amount of money invested in them will stay public. Other information in each company portfolio will remain secret.
Story Link
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
Walter Cronkite on secrecy and credibility: “ The initial refusal of President Bush to let his national-security adviser appear under oath before the 9/11 Commission might have been in keeping with a principle followed by other presidents -- the principle being, according to Bush, that calling his advisers to testify under oath is a congressional encroachment on the executive branch's turf. (Never mind that this commission is not a congressional body, but one he created and whose members he handpicked.) But standing on that principle has proved to be politically damaging, in part because this administration -- the most secretive since Richard Nixon's -- already suffers from a deepening credibility problem. It all brings to mind something I've wondered about for some time: Are secrecy and credibility natural enemies?
When you stop to think about it, you keep secrets from people when you don't want them to know the truth. Secrets, even when legitimate and necessary, as in genuine national-security cases, are what you might call passive lies....”
Story Link
The Heritage Foundation’s Mark Tapscott on the obstacles journalists face: “Taxpayers in White Plains, N.Y. who wonder why public schools there keep demanding more money even as test scores decline probably would like to see those payroll records, too, right? Thanks to Freedom of Information (FOI) laws covering government at all levels in America, We the People have the right to see such government records, and journalists are our proxies. When bureaucrats tell reporters “no,” they’re telling We the People “no.”
So you should worry about the fact that there are now only two kinds of journalists in America -- those who have been ignored, lied to, laughed at, given the royal run-around or otherwise prevented from doing their jobs on your behalf … and those who will be.”
Story Link
The Arizona Tribune on a petroleum secrecy push: “...the Senate measure is more palatable. It allows so-called “confidential” information to be released to the public if it is not attributed to any one source and is of an “aggregate” nature, coming from a majority of suppliers.
While certain trade secrets are subject to reasonable protection, the fact that all price and supply information is regarded by each bill as automatically secret — even during an emergency such as a pipeline break — should be disturbing to the fuel-consuming public.
As this legislation is about an indispensable commodity as gasoline, we think the public would be better served by a different bill requiring public release of pertinent price and supply information. The burden of proof of confidentiality should be placed on state officials, rather than the burden of proof of disclosure placed on the public...”
Story Link
The Ottawa Sun’s Greg Weston on secrecy afoot in the books: “As Paul Martin heads down the final stretch into a national election campaign probably in a matter of weeks, he is desperately trying to outrun the one person certain to dog him all the way to the finish line -- himself.
For all the myriad improvements Martin has promised to make to the way his administration would "do government," he has yet to explain why he spent nine years doing it the old Liberal way.
Martin talks up a storm about leading us all into a new era of responsible government, turning the words "transparency and accountability" into a kind of Liberal mantra. Yet his record as finance minister includes blatant acts of fiscal secrecy on a scale so massive as to have repeatedly invoked the wrath of Auditor General Sheila Fraser...”
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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