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The FOI Advocate
Back to The FOI Advocate Index
Aug. 27, 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
"Sometimes, of course, there are legitimate reasons, such as security, for
the White House's secrecy. Other times, such a reason is elusive. In April
2002, for example, the Orlando Sentinel reported that the Apopka Little
League team of 11- and 12-year-olds would visit the White House on May 5
to watch a T-ball game. The source: the team manager and parents.
'The White House would not confirm the invitation,' the paper reported. "
-- The Washington Post's Dana Milbank in an uproarious Washington notebook column on White House secrecy.
THE BILL, PLEASE: Government data confirm what many have suspected: secrecy has increased
dramatically in recent years under policies of the current administration.
For every $1 the federal government spent last year releasing old
secrets, it spent an extraordinary $120 maintaining the secrets already on
the books, according to an analysis by OpenTheGovernment.org.
"Secrecy Report Card: Quantitative Indicators of Secrecy in the Federal
Government," is an initial effort to establish measurable benchmarks for
evaluating the level of secrecy in government. The study was released
Aug. 26 by OpenTheGovernment.org, a coalition of more than 30
organizations calling for more democracy and less secrecy in government.
"Excessive government secrecy hides problems that the public needs to
know, and information embarrassing to officials," said Rick Blum of OMB
Watch, the report's author and coordinator of the coalition. As examples,
he cited the extensive classification of documents regarding Abu Ghraib
and key sections of the Senate Intelligence Committee's report on pre-war
intelligence on Iraq. "Openness both preserves democracy and saves money,"
Blum said. The Justice Department reports that last year whistleblowers
helped taxpayers recover $1.5 billion.
The government spent $6.5 billion last year creating 14 million new
classified documents and securing accumulated secrets -- more than it has
for at least the past decade. For every new classified document created,
the federal government spent $459 securing that document and the
accumulated mountain of classified documents. Despite recent recognition
from government officials that government classifies too much information,
the government continues to create more new secrets each year, at an
ever-growing cost to taxpayers.
Story Link
THERE'S SOME ENEMY FIRE FOR YA: As the Swift Boat saga continued in Washington, Citizens for
Responsibility and Ethics in Washington filed a Freedom of Information Act
Request (FOIA) with the White House asking it to detail its contacts with
individuals connected to Swift Boat Veterans for Truth. CREW asked the
White House to release information regarding contacts between the
Executive Office of the President and: any member of SBVT and several SBVT
donors, including Harlan Crow, Bob J. Perry and Paraclete Armor &
Equipment. The White House has claimed no involvement with SBVT or the
group's antiKerry campaign ads, a claim undermined by recent revelations
that Mr. Cordier, who appears in one of SBVT's advertisements was on the
Bush campaign's veterans steering committee at the time he made the ad,
and by the fact that a Kerry campaign volunteer picked up a flier for SBVT
at the Bush-Cheney '04 campaign offices in Gainesville, Florida.
Story Link
PRESS FREEDOM WEAKENING? A ruling last week ordering a reporter for Time magazine to jail for
contempt and a subpoena later issued to a reporter for The New York Times
in the same case are the latest examples in what legal experts
characterize as an ominous trend for journalists: the weakening of
fundamental protections for the gathering and publishing of news that
had been generally viewed as settled since the Watergate era.
Story Link
ANTITERROR, IRAQ, ETC.
IRONY DEPARTMENT: Federal investigators concluded that Sen. Richard C. Shelby (R-Ala.)
divulged classified intercepted messages to the media when he was on the
Senate Select Committee on Intelligence, according to sources familiar
with the probe.
Specifically, Fox News chief political correspondent Carl Cameron
confirmed to FBI investigators that Shelby verbally divulged the
information to him during a June 19, 2002, interview, minutes after
Shelby's committee had been given the information in a classified
briefing, according to the sources, who declined to be identified because
of the sensitive nature of the case.
Cameron did not air the material. Moments after Shelby spoke with Cameron,
he met with CNN reporter Dana Bash, and about half an hour after that, CNN
broadcast the material, the sources said. CNN cited "two congressional
sources" in its report.
The FBI and the U.S. attorney's office pursued the case, and a grand jury
was empaneled, but nobody has been charged with any crime. Last month it
was revealed that the Justice Department had decided to forgo a criminal
prosecution, at least for now, and turned the matter over to the Senate
Ethics Committee.
Story Link
FOI CENTER JOINS ENVIRONMENTAL INFO: About a dozen journalist organizations complained Monday that a proposed
Homeland Security Department policy would impede the public release of
information on environmental hazards.
In comments filed with the department, the groups said the agency is
ditching some routine environmental oversight in the name of security.
"It must not be assumed that a choice needs to be made between the
environment and security," the Coalition of Journalists for Open
Government wrote in response to the agency's directive.
Their complaint involves the 1970 National Environmental Policy Act, which
requires lengthy environmental studies and public comments to detail the
effects a proposed project would have on the environment and ways to
minimize that impact.
Story Link
A FLORIDA AIRPORT SHUTS ITS DOORS: Some people following activities at the Melbourne International Airport
are fuming at a proposal by airport officials to restrict public access to
information.
"It smacks, in my opinion, as something that's un-American," said Neal
Chancellor, a local representative of the Aircraft Owners and Pilots
Association. "This, obviously, would have a chilling effect on public
input and public oversight."
Chancellor, who earlier this year arranged to have a copy of the airport's
master plan put in the Melbourne Public Library on Fee Avenue, is asking
the national leadership of the Aircraft Owners and Pilots Association come
out with a vigorous offensive against Melbourne International's proposal.
Melbourne International officials, citing security concerns, have
suggested the Transportation Security Administration restrict the number
of documents the public can access and also keep a "clearinghouse" on
those seeking information.
Story Link
GROUPS SEEK ABUSE RECORDS: Human rights, veterans and civil liberties groups are urging a federal
court to order the U.S. government to release records on the alleged
mistreatment of prisoners at U.S. military bases and other detention
facilities overseas, including Guantanamo Bay, Cuba and Abu Ghraib prison
in Iraq.
Plaintiffs in the lawsuit are the American Civil Liberties Union (ACLU),
the Centre for Constitutional Rights (CCR), Physicians for Human Rights
(PHR), Veterans for Common Sense and Veterans for Peace.
When the FOIA requests were filed, the agencies involved -- which also
included the departments of Homeland Security, Justice and State --
rejected a request to expedite them, arguing the requests did not involve
"questions about the government's integrity which affect public
confidence" and that failing to act on an expedited request would not
"endanger the life or safety of any individual."
Other records, it said, should not be released at all.
The FOIA, first filed in October 2003, asked the agencies to immediately
process and release all records of the abuse or torture of detainees in
U.S. custody and any records of investigations into those deaths.
A similar FOIA request was filed in May 2004, partly in response to
growing public outcry against human rights violations by U.S. soldiers,
resulting from the leak of prisoner abuse photos at Abu Ghraib prison
outside of Baghdad and from firsthand reports from inmates.
According to media reports, more than 30 detainees have died in U.S.
custody since late 2001; at least 16 of them have been classified as
homicides.
Story Link
AND THEN A DEADLINE WAS SET: The U.S. government has less than two weeks to start giving civil rights
groups documents about the torture of prisoners held by U.S. forces at
Iraq's Abu Ghraib prison and other facilities, a federal judge ordered
Aug. 12.
U.S. District Judge Alvin Hellerstein expressed impatience with the
government and said prosecutors must start handing over certain papers
identified by the American Civil Liberties Union by Aug. 23 unless they
can show the documents cannot be found or they are subject to certain
exemptions.
Story Link
HABEAS CORPUS LAWSUIT UNDERWAY: People For the American Way Foundation (PFAWF), a national civil rights
and constitutional liberties organization, and the firm of Arnold & Porter
have filed suit against the U.S. Department of Justice (DOJ) seeking the
release of redacted DOJ records relating to secret court proceedings
against post-9-11 detainees.
PFAWF hopes that release of these records will help determine the extent
to which the DOJ has taken the highly unusual step of trying to seal
habeas corpus cases of detainees who challenge the legality of their
detentions. Habeas corpus cases, used to determine whether or not a
person is imprisoned lawfully, are traditionally open to public scrutiny.
PFAWF's inquiry was prompted by the case of Mohamed Kamel Bellahouel, one
of hundreds of Middle Eastern men detained by DOJ after the 9-11 attacks.
After being released without being charged with any terrorism related
crimes, Bellahouel brought a habeas corpus case challenging the
constitutionality of his detention. The government sought and obtained a
secrecy order that sealed all filings, making even the existence of his
case a secret. Bellahouel's case, M.K.B v. Warden, only came to light due
to a clerical error at the 11th U.S. Circuit Court of Appeals when the
case was briefly listed on the public docket.
Story Link 1
Story Link 2
GENERAL FOI NEWS
CPI SUES FOR ACCESS TO "FRAGILE" DATABASE: The Center for Public Integrity today filed lawsuits against the
Department of Justice and the Office of Personnel Management for failure
to provide documents requested under the Freedom of Information Act.
The lawsuit against the Department of Justice notes that DOJ has failed
to provide the Center with an electronic copy of the complete Foreign
Agents Registration Act database maintained by the Foreign Agents
Registration Unit Counterespionage Section of the Justice Department.
As the Center reported in late June, DOJ said it was unable to copy its
records electronically because their computer system was "so fragile." The
report also quoted the Foreign Agents Unit spokesman as predicting that
making electronic copies "could result in a major loss of data which would
be devastating."
Story Link
FOI ACTIVITY AT RECORD HIGHS: The total number of Freedom of Information Act requests made to federal
departments and agencies broke records in fiscal 2003 and cost the
government almost $325 million, according to a new report from the Justice
Department.
More than 3.2 million FOIA requests were received by federal departments
and agencies in 2003, surpassing the 3-million mark for the first time, an
annual report by the Justice Department's Office of Information and
Privacy reveals. The number of requests jumped nearly 36 percent from the
previous year, which marked the greatest single-year increase ever
recorded.
"Generally, it's a healthy sign when people want access to government
information. I'd be worried if FOIA activity was dropping," said Steven
Aftergood, director of the Project on Government Secrecy at the Federation
of American Scientists. "On the other hand, for many kinds of information,
it should not be necessary for members of the public to invoke the formal
process of the FOIA. The fact that it is necessary to file a request
suggests that agency practices need to be updated and refined."
The annual report is compiled based on FOIA reports from 15 federal
departments and 73 agencies. The federal government spent about $320
million on FOIA-related activities in 2003, which was a 7.7 percent
increase over the preceding year. About $10 million was spent on
litigating requests.
Story Link
DON'T FOLLOW OUR MODEL: Nearly 600 times in recent years, a judicial committee acting in private
has stripped information from reports intended to alert the public to
conflicts of interest involving federal judges.
The committee decided that the information removed might tend to endanger
a particular judge or put his or her financial investments at risk,
according to a study by the Government Accountability Office (GAO), the
investigative arm of Congress.
In 55 instances, the committee withheld all information on the disclosure
reports -- including details about outside income, gifts, business
contracts, debts, stocks and the value of holdings. The study examined
disclosure reports filed under the Ethics in Government Act from 1999
through 2002.
Specialists in judicial ethics said they were startled at the breadth of
the excisions -- and particularly that the material cut included financial
information that appeared to present little safety risk.
Story Link
SEC CHAIR'S NOTES NOT PUBLIC: Meeting notes, calendars and phone records created by the office of
former Securities and Exchange Commission Chairman Harvey Pitts are not
agency records subject to the Freedom of Information Act, a federal
district court in Washington, D.C., ruled July 28.
Judge Richard J. Leon of U.S. District Court in Washington, D.C., said
the SEC has the right to withhold notes, taken during a meeting between
Pitt and several brokerage executives, under exemptions 5 and 8 of the FOI
Act. Those exemptions cover internal agency memoranda and bank reports,
respectively.
Leon also held that Pitt's calendar and phone records can be withheld
because they were only available to people working closely with Pitt; they
were created for Pitt's personal use and not to create an official record;
and SEC employees are provided with "limited use of government office
equipment for personal needs."
The records, including e-mail messages, were first sought by Bloomberg
News in April and May 2002. The SEC denied the requests for the calendar
and phone records, and provided the New York-based company with a "Vaughn
Index," which details the reasons and exemptions which purportedly justify
each denial.
Story Link
MOOOOOOOOOOOOO: The U.S. Department of Agriculture failed to test for mad cow disease or
collect the correct portion of the brain on nearly 500 suspect cows over
the past two years -- including some in categories considered most likely
to be infected -- according to agency records obtained by United Press
International.
"Somebody must be asleep at the switch if they can get this kind of data
in their database and not launch some kind of investigation," Dr. Peter
Lurie, deputy director of Public Citizen's Health Research Group in
Washington told UPI. "It suggests inappropriate collection of samples and
failure to test even those samples that were collected, on top of the
failure to test categories of animals USDA told the American public it was
testing."
"When you look at all that, then how do you expect the American consumer
to have any confidence in this, or our trading partners?" Lester
Friedlander, a former USDA veterinarian, told UPI.
"Where are the Senate and congressional Agriculture committees? How come
they don't say anything?" Friedlander asked..."Somebody (there) should've
caught on, but instead it has to be somebody from UPI under the Freedom of
Information Act," Friedlander said. "How did it get by so many people?"
Story Link
THE ORIGINS OF SECRECY: In November 1974, a reform-hungry Capitol Hill gave the newly sworn-in
President Gerald Ford one of his first real challenges. Congress had
passed a significant expansion of Ralph Nader's 1966 Freedom of
Information Act (FOIA), aimed at prying open for public scrutiny the
previously exempt areas of national security and law enforcement. When
Ford was vice president to a commander-in-chief famous for his secrecy,
paranoia, and abuse, he had supported the new sunshine amendments. But as
chief executive, the interim president allowed himself to be talked into a
veto by his intelligence directors and by his young chief and deputy chief
of staff: Donald Rumsfeld and Dick Cheney.
"This was their first battle at Ford's White House," says Thomas Blanton,
director of the National Security Archive (NSA), a nonprofit at George
Washington University that has helped declassify more than 20,000
government documents. It was a battle the FOIA foes lost: Congress
overrode Ford's veto.
Thirty years later, Rumsfeld and Cheney are again squaring off against the
advocates of government transparency. At press time, the Bush White House
had yet to release the photographs and videos of the vile prisoner abuse
at Abu Ghraib; it's also defending its expansions of state secrecy in
several cases before the Supreme Court. Its efforts are affecting not just
Congress' and the press's ability to cross-examine the executive branch
but citizens' ability to scrutinize how our tax money is being spent --
and the government's ability to act without restraint.
Story Link
THE NET AS , WELL, NET: Reporters Without Borders has a new report out on efforts to control
information on the Internet: "The Internet has a bad reputation. With
authoritarian regimes, that's no surprise. It's to be expected the
enduring dictatorship in Beijing (and we must call it that, whatever the
fans of the Chinese "economic miracle" think) has set up a big Internet
police force. Dozens of Internet users languish in Chinese prisons for
imaginary crimes - for looking at banned websites or, even "worse," daring
to post news online about forbidden topics such as the 1989 Tiananmen
Square massacre and repression in Tibet.
China is unfortunately not the only country where dissident Internet
messages are tracked down. In Vietnam and Tunisia, big shots (official or
otherwise) are distinctly unenthusiastic about this vast discussion forum
and information exchange they have so much trouble controlling..."
Story Link
KEEPING TOO MANY SECRETS, ARE WE? Government officials said in an Aug. 24 hearing that federal agencies
improperly classify at least half of all documents, adding that senior
managers have a responsibility to set a tone and provide adequate training
that prevents abuse of classification authorities.
"It is no secret that the government classifies too much information,"
William Leonard, director of the Information Security Oversight Office,
told the House Government Reform Subcommittee on National Security,
Emerging Threats and International Relations. He said the amount of
improperly classified information has been "disturbingly increasing" since
last year in "clear, blatant violation" of regulations.
A recent focus on classification issues has prompted reviews by federal
agencies and departments. For example, the Defense Department is reviewing
whether it properly classified information in reports on abuses at the Abu
Ghraib prison in Iraq, and whether documents related to pre-war Iraq and
Afghanistan can be declassified, said Carol Haave, Defense undersecretary
for counterintelligence and security.
Story Link
More coverage of this important hearing:
"A former dictator's cocktail preferences and a facetious plot against
Santa Claus were classified by the government to prevent public
disclosure.
Also stamped "secret" for six years was a study that concluded 40 percent
of the Army's chemical warfare masks leaked.
These and other ludicrous and lethal examples of classification were cited
Tuesday by members of Congress and witnesses at a House subcommittee
hearing into the Sept. 11, 2001, commission's conclusion that secrecy is
undermining efforts to thwart terrorists..."
Story Link
IN THE STATES
LOCAL WASTE CHIEF: I AM IN CHARGE OF FOIA! The director of the local waste management agency wants more control over
who gives out information, and he will try to push through the group's
governing board Friday a policy that restricts the release of certain
documents and makes him the sole conveyor of public information.
However, the head of the Iowa Freedom of Information Council says the
measure "is clearly counter to (state) public records laws."
The measure ? the second attempt to pass such a policy since June ? states
that "proprietary and trade secret information" including invoices for raw
materials hauled to the Fort Madison?based agency will not be made public.
Also, requests for public information can be made only through GRRWA
Director Tim Yoder under the proposal.
Records of five committees that make up the agency's management also would
be kept secret.
"I have at least half a dozen specific problems with it (the policy),"
said Kathleen Richardson, executive secretary of the FOI council, adding
that several key points in the five?page proposal seem to violate the
state's open records laws.
Story Link
DO AS WE SAY? Colleen Rogers of Missoula said it's "ironic" that the Montana School
Boards Association teaches school districts how to comply with the state's
freedom of information laws, yet refused to open its files to the general
public.
Rogers, a former Missoula County Public Schools trustee, and Molly Moody,
one of two plaintiffs in a lawsuit recently filed against the Missoula
County Public Schools District 1, came to Helena on Wednesday seeking
information, communications, financial records and other documents from
the Montana School Boards Association.
A secretary with the association did not take the pair's impromptu request
Wednesday, and told them to schedule an appointment with one of its
lawyers or leave a written list of the documents they want. The duo did
neither.
"They wouldn't even take the request," Rogers said after their failed
attempt. "That's disheartening."
Association director Lance Melton said the association is a private,
nonprofit organization and doesn't have to - and won't - open its files to
the general public.
Story Link
YOUTHFUL EXUBERANCE: Michael Barker did not quite realize what he was getting himself into
when he decided to challenge the state's open records law.
Seeing a need for a change in the state's Freedom of Information Act, the
17-year-old Jena resident chose to let his School Board know how he felt
about his not gaining access to records because he was under 18...
In April, Barker testified before the House and Governmental Affairs
Committee in an attempt to change the law that allowed state officials to
deny public records requests made by anyone younger than 18.
Louisiana was the only state whose public records law made an exception
for minors. Barker wasn't aware of the law until 2003, when he attempted
to gain access to some school system records...
Story Link
85,000 RECORDS RELEASED IN ROWLAND INQUIRY: Gov. John G. Rowland bounced from flush with money to cash-strapped while
serving as Connecticut's chief executive, according to more than 85,000
pages of documents released Monday as part of the legislature's
impeachment investigation.
The documents, which include banking account and credit card statements,
tax forms, personal letters and details of Rowland's financial
investments, were provided to the legislature's Select Committee of
Inquiry by Rowland, his wife Patricia and the governor's office earlier
this year.
Story Link
COVERING THEIR ASSETS: Do lawmakers have the right to block public access
to financial records in divorce cases?
A judge heard arguments Thursday about the constitutionality of a law that
went into effect on Tuesday.
The law made all financial affidavits filed in a divorce, child support or
custody case confidential except to the couple, their lawyers and certain
other officials. Some lawmakers argued this was needed to protect people's
privacy.
Five newspapers, The Associated Press wire service, the New Hampshire
Association of Broadcasters and WMUR-TV sued. They asked Merrimack County
Superior Court Judge Edward Fitzgerald to act immediately to suspend the
law until the issue is decided.
Story Link
ILLINOIS GUV VETOES BILL: Gov. Rod Blagojevich recently signed a bill designed to strengthen the
state's Open Meetings Act, and vetoed legislation that would have limited
the time window for filing court challenges of denied Freedom of
Information Act requests.
Illinois law currently allows up to five years to file a lawsuit
challenging a denied Freedom of Information Act request. Under HB 956,
such lawsuits would have to be brought within 60 days of receiving notice
that the public body holding the records in question has denied the appeal
of a refused request.
Story Link
INTERNATIONAL DEVELOPMENTS
PAKISTANIS PUSH ON FOI: The Consumer Rights Commission of Pakistan has urged the government to
repeal the Official Secret Act, 1923, and make legislation regarding
freedom of information to check corruption at the official level.
"It is important to make laws that could ensure excess of the citizens to
information regarding execution of various projects, contracts allotted by
the government for development work and analysis done by the government
about different consumer products," said Mukhtar Ahmad Ali, coordinator of
the Consumer Rights Commission of Pakistan (CRCP).
Mr Ali said that the Freedom of Information Ordinance, 2002, should be
properly implemented after incorporating some amendments to it.
No laws on freedom of information existed in any province, which had kept
aloof the people from information regarding the daily commodities, he
said.
Story Link
AUSSIES IN TUSSLE: The Australian has been seeking documents on tax "bracket creep" and the
First Home Owners Scheme under the Freedom of Information Act. Access to
the documents has been denied by the federal Government. The Australian is
appealing the matter to the Administrative Appeals Tribunal. The
Australian has undertaken to post on its website any documents obtained
under the action.
On July 12, the federal Treasury released several documents to The
Australian, all now available on the paper's dedicated FOI pages.
Story Link
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
The Reporters Committee's Lucy Dalglish on the threats to freedom of the
press: "This has been a tough summer for journalists.
First Amendment principles that generally had been considered settled
since the days of Watergate and the Pentagon Papers are under attack. It
has been at least 30 years since we have seen such a dramatic weakening of
fundamental protections for gathering and publishing of news.
At least five reporters have been subpoenaed in Washington, D.C., in
connection with a federal grand jury investigation into the release of an
undercover CIA operative's name to columnist Robert Novak. One of them,
Time magazine's Matthew Cooper, has already been sentenced to jail for
contempt for not revealing his confidential sources in the so-called
"Valerie Plame case." Cooper's jail term has been stayed pending appeal.
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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