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Dec. 6, 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

"If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad. "

-- Judge Alvin K. Hellerstein in Federal District Court in Manhattan, chastising the administration for its "glacial pace" and ordering the Pentagon and other agencies to produce a list of all their documents on the detentions at Abu Ghraib prison in Iraq by Oct. 15.

FOI AT WORK: ...This is the story of patriots deceived -- not once but three times: first as young recruits, conned into entering chambers of lethal gas during World War II; then as war-hardened soldiers, shipped home with no warning of the time bombs lurking in their bodies; and finally as aging veterans, misled by a government that promised to find them, wherever they lived, and compensate those who were harmed.

By the end of World War II, the military had exposed more than 70,000 Army and Navy recruits to poison gases in various forms -- from swabs of mustard agent on their arms, to the more than 4,000 servicemen who marched into chambers or through fields soaked with chemicals. The mission was noble: to develop protective gear and ointments that would insulate troops from enemy chemical attack. The means were not: Officers deceived the men about the health risks and intimidated those who balked...

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STATE SECRETS PRIVILEGE NOT WHAT IT USED TO BE: Families of three civilian engineers killed in a 1948 crash of a B-29 bomber have lost an attempt to reopen a 50-year-old lawsuit, but they have filed an appeal.

The engineers, all of whom lived in the Philadelphia area, were testing an electronic navigational system when the B-29 crashed near Waycross, Ga., on Oct. 6, 1948.

Their widows filed a wrongful-death lawsuit against the Air Force. But Air Force officials refused to make public the cause of the crash, claiming that disclosure might endanger the nation's security. The U.S. Supreme Court, in a landmark 1953 decision, allowed the report to remain secret.

But the report, now declassified, does not appear to contain state secrets. Rather, it attributes the B-29 crash to an engine fire that might have been avoided had a mandated heat shield been installed. The report concluded that the bomber was not "safe for flight."

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ACLU FOIAS FBI: Citing evidence that the FBI and local police are illegally spying on political, environmental and faith-based groups, the American Civil Liberties Union and its affiliates in Iowa and other states today filed multiple Freedom of Information Act (FOIA) requests around the country to uncover who is being investigated and why.

The requests were filed by the national ACLU as well as its affiliates in Colorado, Illinois, Iowa, Michigan, and Oregon. The national ACLU FOIA names the central FBI agency as well as bureaus in New York, Washington, D.C., California, Michigan, Virginia, and Massachusetts. Additional ACLU affiliates are expected to file another round of FOIA requests in early 2005.

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Coverage at: http://www.suntimes.com/output/news/cst-nws-aclu02.html


ANTITERROR, IRAQ, ETC.

"The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent."

-- The ACLU quoting a 1972 United States Supreme Court opinion in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), which re-emerged in the news recently after Justice Department lawyers blacked it out in filings in a Patriot Act case.

For the evidence, see: www.thememoryhole.org/feds/justice_redaction.htm



BLANKET GAG ORDER AT DHS: The Department of Homeland Security is requiring thousands of employees and contractors to sign nondisclosure agreements that prohibit them from sharing sensitive but unclassified information with the public.

The department was rebuffed, however, when it also tried to require congressional aides to sign the secrecy pledges as a condition for gaining access to certain materials, majority and minority spokesmen for the House Select Committee on Homeland Security said.

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ACLU SEEKS PTE RECORDS: The American Civil Liberties Union of New Jersey today filed a lawsuit challenging the New Jersey Attorney General's refusal to disclose information about individuals and organizations designated as "potential threat elements" (PTEs), including the criteria used by the state to make such determinations.

"We all want the police to protect us from real criminals and terrorists," said Deborah Jacobs, ACLU of New Jersey Executive Director. "But the public should be able to find out whether resources and funds established to fight terrorism are being misused to target innocent Americans who have done nothing more than criticize the government or practice their religion."

The designation of individuals or organizations as PTEs was required in connection with the application for Department of Homeland Security grant money. In order to obtain certain Homeland Security grants, municipalities that applied were required to identify at least 15 individuals or organizations as PTEs.

Earlier this year, the ACLU of New Jersey sent open public records requests to the 50 largest New Jersey municipalities to obtain documents disclosing the identification of, or criteria for designating, PTEs. While most municipalities had no such documents, eight municipalities responded with refusals to disclose their records, claiming they were exempt from disclosure under New Jersey's Open Public Records Act (OPRA). On Oct 4, 2004, Jacobs filed an OPRA request directly with the Office of the Attorney General. On October 19, 2004, the Office of the Attorney General responded, claiming that such records were exempt as "security measures or surveillance techniques" and that their disclosure would interfere with the ability to protect the state against acts of sabotage or terrorism.

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SECRECY = SAFETY? When Teton County Commissioner Bill Paddleford heard a researcher discuss the possibility that part of Jackson Lake Dam could liquefy in a large earthquake, he was both worried and miffed.

For two years, Paddleford said, he had been after the U.S. Bureau of Reclamation to give county officials information on the safety of the dam and any potential threats to the structure. Local officials wanted it as part of their emergency planning.

Agency officials maintained that the dam, a short distance upstream from the resort community of Jackson, was safe, but Paddleford said they refused to release specifics.

After hearing a speech mentioning the risk to the dam, given by a professor of seismology at UC Santa Barbara, Paddleford was convinced that county officials weren't getting the whole story and that the Bureau of Reclamation was being unreasonable.

The dispute highlights a problem faced by some local governments and groups since the terrorist attacks of 2001: It isn't just the general public that is finding it more difficult to get information from state and federal governments about dams, electric utilities or other structures in their areas - whether for safety, environmental or political concerns.

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GENERAL FOI NEWS

COURT SECRECY AT HEART OF APPEAL: In a case that's being closely watched by civil libertarians, journalists and the criminal defense bar, lawyers for convicted Colombian narcotics boss Fabio Ochoa have attacked his 2003 conviction partly on the grounds of federal court secrecy practices.

A key issue in last week's oral arguments before the 11th U.S. Circuit Court of Appeals in Atlanta was the constitutionality of secret court dockets that federal judges in South Florida and Atlanta have used to hide the existence of some civil and criminal court cases.

Judge Rosemary Barkett expressed strong concerns about the use of secret dockets. She wanted to know how one of the potential witnesses for Ochoa, Nicholas Bergonzoli, came to be convicted, sentenced and imprisoned in total secrecy in U.S. District Court in Miami in 2002.

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NOISE GROUP SUES FOR FAA DATA: A group seeking quieter airline routes claims the Federal Aviation Administration is improperly withholding from the public data being used to design new routes in the tri-state region.

The New Jersey Coalition Against Aircraft Noise also charged in a federal lawsuit that the FAA has shared the information with airlines.

The lawsuit is in response to a five-year effort to redesign air routes for airports in New Jersey, as well as in Philadelphia and New York City.

NJCAAN suggests that aircraft noise can be reduced by putting routes over industrial areas and the ocean, and by having airliners fly at higher altitudes before descent.

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PROCUREMENT NEEDS SOME SUNSHINE: A Pentagon inspector general's report made headlines this summer by slamming the Air Force's purchase of 50 transport planes that jumped in price and remained unfit for combat duty five years after delivery of the first aircraft.

But the findings were old news to the Defense Department's own contract auditors. Internal Pentagon memos show that the auditors raised many of the same concerns about the plane, Lockheed Martin Corp.'s C-130J, in the late 1990s.

Officials say the procurement business requires confidentiality, but watchdog groups, whistle-blowers and some congressional critics don't buy it. They say the lack of disclosure at the little-known Defense Contract Audit Agency can allow millions in cost overruns, waste and fraud to fester for years before any corrective action is taken.

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IN THE STATES

"Attached is a request for a FOI (freedom of information). The mayor said to delay it as long as we can. My question is how much, if any, information should we give them. Thank you."

-- a fax mistakenly sent to Peoria, Illinois City Hall by East Peoria's city clerk.



SCHOOL BOARD MUST OPEN EVALS: A judge told Peoria School District 150 on Friday that it must make public three documents that address why the School Board voted this summer to oust Superintendent Kay Royster and buy out her contract.

Chief Circuit Judge John Barra found after reviewing the two evaluations and one letter that there was "nothing personal nor private about those documents, nor should a superintendent expect that her evaluations and the explanation for her removal were personal or private."

Earlier this year, the Journal Star sued the district, saying it violated the Freedom of Information (FOI) Act when it refused to release the evaluations and the letter after Royster was placed on administrative leave July 30. The newspaper maintains the documents are covered by the state's FOI Act and should be released to the public.

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TOTAL SECRECY SURROUNDS DOCS IN SC: State medical regulators' efforts to suspend a West Columbia alternative medicine physician were kept secret in a South Carolina court.

Dr. James M. Shortt's practice has been restricted, it was learned during the Administrative Law Court hearing.

Because of the secrecy involved, it is unclear whether the judge took any action Monday. The medical board continued to list Shortt as a physician in good standing with no disciplinary violations.

The hearing was set because the medical board asked the court on Sept. 30 to suspend Shortt, even though the board has the authority to do so. Judge Carolyn Matthews rejected The State newspaper's request to open the hearing.

The confidentiality provisions are so strict that the court does not name the doctor, removing the physician's name and those of the complaining parties from court documents. The court requires a written Freedom of Information Act request before it will release copies of a complaint, court clerk Jana Shealy has said.

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FOI AT WORK: MAMMOGRAMS OFTEN WRONG: Of the almost 200 facilities inspectors checked in Massachusetts, only six have no violations. What's more, the records we found reveal failures at facilities across the country. FDA officials refused an on camera interview, but told us, "violations cited in inspection reports do not necessarily rise to the level of seriousness that would put women at risk." And what happens when inspectors find violations? Though letters like these - sent to Massachusetts facilities warn of "serious underlying problems that could compromise the quality of mammography" - penalties are rare. Facilities promise to make corrections and are often not re-inspected until the next year.

But patients generally are not notified, and though inspection reports are public documents, they're difficult to get.

The FDA suggested making a Freedom of Information request. But when we tested how long that would take, we were told:

"Significant backlog."

"Quite a backlog."

"It depends."

And:

"I have no idea."

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FOI AT WORK, MILE AFTER MILE: Only eight Oswego County legislators have requested mileage reimbursement so far this year. In past years, as many as 11 legislators have filed mileage reimbursement requests.

Among those who still take the entitlement, Legislators Kim Seager and Carl Anson received the highest reimbursement checks so far this year.

Anson, who represents the area near Williamstown in northern Oswego County, received $787 in reimbursements to date, county records show.

Ms. Seager, who represents the Phoenix area, has requested and received $783 in mileage reimbursement for this year. She was also the highest paid at $1,627 among 11 legislators who took the reimbursement in 2001.

The records, provided under the Freedom of Information Law, show Ms .Seager requested reimbursement for attending meetings, a press conference, a ribbon cutting, and an ATV club rescue demonstration.

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POLITICO SUES POLITICO OVER RECORDS: An Anderson County Council member is suing the county administrator over access to the county's legal records.

Cindy Wilson, a council member since 2001, says she has been trying to figure out why Anderson County is spending more than other counties on legal fees. It's part of an ongoing fight with County Administrator Joey Preston to open records, she said.

On November 3, Wilson asked a court to force Preston to give her access to the county's financial records. She's particularly interested in how much was paid to the McNair Law Firm in Columbia.

Tom Martin, a McNair lawyer who acts as the county's attorney, said the lawsuit had not been served and would not comment on it.

Martin said the county was billed $182,201 for 1,058 hours of his time last year.

Wilson's lawsuit is one of many she's filed in efforts to stop a sewer line project from running through her family's land, Preston said. So far, it is "over $400,000 we've had to spend defending lawsuits just on the sewer lines," he said.

Wilson lost those challenges, but the lawsuits sparked delays that cost the county big development projects, he said.

Preston sued Wilson and others in federal court in September, saying they invaded his privacy by illegally obtaining information on a car he owns. The lawsuit says Wilson and others prompted a State Law Enforcement Division investigation that targeted him.

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GROUPS FILE GIS BRIEFS: Journalists have used geographic information systems to illustrate the effects of poverty in Hartford, the inefficient locations of fire stations in Cleveland, and the racial segregation of schools in Dallas.

Citing those stories and many others, three reporters' groups filed a friend-of-the-court brief yesterday in state Supreme Court in Hartford, arguing that Greenwich officials have no right to restrict public access to the town's GIS database.

The Reporters Committee for Freedom of the Press, the Society of Environmental Journalists and Investigative Reporters and Editors, Inc., filed the brief in support of Greenwich resident Stephen Whitaker and the state's Freedom of Information Commission.

Whitaker and the FOIC are suing Greenwich over the town's refusal to provide Whitaker, a computer technician and entrepreneur, with electronic copies of the GIS database.

Town officials have said that releasing the GIS database -- an elaborate set of high-resolution aerial photographs, statistics, charts and maps that was created in 1997 at a cost to taxpayers of $3 million -- could undermine the town's security. Individual photographs, statistics, charts and maps from the database are available to the public, but the town has resisted releasing the entire database in electronic format.

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PAPER WIN FEES IN FOI CASE: A newspaper has been awarded $16,000 in legal fees in its effort to force the sheriff to release records of disciplinary actions taken against deputies.

The (Rock Hill, SC) Herald sued the York County Sheriff's Office in 2000 after the sheriff denied two requests under the state's Freedom of Information Act. The newspaper sought records showing why three deputies were suspended following allegations of misconduct.

Sheriff Bruce Bryant claimed the records were exempt from public scrutiny.

The records were released after a trial judge and the state Court of Appeals ruled the sheriff's department violated the FOI law.

"It is unfortunate that the citizens of York County had to foot the bill for the Sheriff's Office ill-advised decision to withhold information about misbehaving deputies," said Herald Editor Terry Plumb. "This case took years to resolve, and it could have been handled in minutes."

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NO SUNSHINE ON CLEMENCY: Strong public records laws make Florida's government among the most open in the nation, yet state statutes keep secret even the most basic information about a system that bans hundreds of thousands of potential voters from the polls.

Florida's Clemency Board has ruled on more than a half-million civil rights applications since 1987 but won't allow the public to examine its voting pattern or track record. Now, with the state's clemency system drawing national attention, growing numbers of civil rights advocates and legislators are questioning how the board can continue to keep nearly all clemency records secret.

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ARNOLD TAKES CREDIT FOR BOLD MOVE, OPENS SCHEDULE! Gov. Arnold Schwarzenegger said in an interview today that he will make public his daily schedule, a move that open government advocates say will provide an unprecedented look at how his administration determines public policy.

The governor said he will release a complete calendar of his first year in office, including whom he met with. His comments came just days after voters approved Proposition 59, which seeks to strengthen open records laws and follows a formal request by a media law group to make his calendar public.

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BUT NOT THAT OPEN....Despite promises to open up government and even his own calendar for public review, Gov. Arnold Schwarzenegger's efforts to reshape California benefit from millions of dollars in spending by non-profit groups that are not required to disclose where they get or how they spend their money.

These groups have supported some of Schwarzenegger's most memorable events, including trade missions to Tokyo and Tel Aviv, bus tours up and down the state and even the wild July appearance at a shopping mall in Ontario where he called Democrats ``girlie-men.''

But quirks in state and federal laws governing non-profit groups and campaign spending, along with the governor's apparent failure to file required disclosure forms, have made it almost impossible to determine which of Schwarzenegger's backers paid for those events.

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PENSION BOARDS DEEMED PUBLIC: The state Freedom of Information Commission has ruled unanimously that Stamford's police and fire department pension boards are public agencies and therefore required to open their meetings and records to the public.

The Advocate filed a complaint with the commission in December 2003, after the boards, which manage the departments' pension contributions, refused to allow former Advocate reporter Kevin McCallum to attend meetings held in November and December 2003.

Murphy and Macleod argued, as Leonhardt did, that the city had no significant control over the boards and that the boards were established by contract with the city and not through legislation. Furthermore, the lawyers argued, the city's contributions to the funds become the property of the police officers and firefighters and is no longer "public" money. They also said that pension fund management should not be considered a function traditionally performed by government.

The board, unpersuaded, supplanted Leonhardt's proposal with part of Pearlman's and voted to approve it. The lawyers for the pension board had no comment after the hearing.

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FIRST PROP 59 TEST IN CALIFORNIA: The California Department of Corrections was recently served a lawsuit alleging violations of the California Pubic Records Act. The action will be one of the first tests of Proposition 59, approved by voters by an overwhelming 83.2 percent margin. The state constitutional amendment took immediate effect on November 3.

Initiated by Sacramento-based investigative journalist Stephen James, the dispute alleges that the CDC violated the CPRA when it denied his request for parolee data. The lawsuit (mandamus petition) was filed October 22 in Alameda County Superior Court by attorney James Chadwick of the Palo Alto office of Gray Cary Ware & Freidenrich. Chadwick helped draft Proposition 59.

In February, James submitted a CPRA request for parolee data to be used in an article about CDC parolee reintegration programs, recidivism, and related issues. The CDC denied the request claiming the information was private under the California Information Practices Act.

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NON-EXISTENCE AS AN EXEMPTION: The Illinois Department of Public Aid did what it could to block public light from shining on its records relating to the state's proposed hospital tax plan.

The Rockford Register Star ultimately obtained the documents from another source after the department fought the newspaper's attempts to obtain them. At one point, officials even asserted that the documents did not exist.

It began in October when the Register Star asked for a copy of the state's response to questions from the federal Centers for Medicare and Medicaid Services regarding the state's hospital tax plan. Department spokesman Mike Claffey indicated that he was familiar with the documents but instructed the newspaper to file a formal request using the Illinois Freedom of Information Act.

Eight days later, the department informed the Register Star that it had invoked its right under the FOIA to take seven additional business days to process the request. Yet on Nov. 15, 11 business days later, the department had not disclosed the documents or formally denied the request. Later that day, staff attorney John Larsen informed the Register Star in writing that the department did not possess the records.

"In response to your request," he wrote, "the department has no records regarding any response by the department to questions from the federal Centers for Medicare and Medicaid Services concerning the state's hospital waiver application."

This puzzled lawmakers and other officials who were watching the approval process.

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FOI AT WORK: For years the taxpayers of Oswego County have been paying tuition bills for county employees to further their education at various schools, from prestigious universities to online "virtual" colleges.

Last year taxpayers paid tuition costs for 29 county employees to attend a variety of colleges, technical schools, and "online universities" ? a budget line that some legislators were not even aware of.

The preliminary budget for 2005 includes a $65,000 line titled "tuition payments" with the subheading "tuition reimbursement," an employee benefit legislature Chairman Russ Johnson said is a part of the collective bargaining agreements made between department heads and the unions representing the county's 1,100 workers.

Under the Freedom of Information Law, The Valley News requested the information from the tuition-payment budget line. Clerk of the Legislature Ted Jerrett provided the 2003 tuition payments; not all the 2004 bills had been paid as of this month.

For 2003, county taxpayers provided a total of $60,222.50 in employee tuition expenses, according to the county documents.

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FOI AT WORK: SCHOOL OFFICIALS 'LESS THAN HONEST': The breach of security at Eastern High School on Sept. 17, which resulted in the life-threatening beating of a student by a non-student, was worse than school officials disclosed.

A Sept. 21 letter to students and parents by Eastern Principal Pamela Diggs referred to only one person being involved in the assault, whom she called an "outside intruder."

But school documents show that the intruder did not enter the school alone. The documents say he was accompanied by another non-student as well as an Eastern student. The student was suspended the day before the principal's letter was dated. He was ultimately expelled because he "aided and abetted two non-students in entering Eastern for the purpose of assaulting an Eastern student."

City Pulse obtained the documents under the state Freedom of Information Act.

The Lansing police detective investigating the case, James Gill, said that Diggs' letter to parents and students was "not accurate to the facts we had at the time.

"The district has been less than honest on this incident all along," Gill said.

The beating was one of two incidents at Eastern this fall that have called security at the school into question. An Eastern student has been arrested and charged with raping another student in the hallway while most students were outside waiting for buses.

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IS COP'S FILE A SECRET? Does the public have the right to know if a police officer has been disciplined for alcohol-related offenses?

A judge will wrestle with that question -- as well as whether fellow officers are obligated to report an officer's suspected drinking problem -- in a Macomb County circuit courtroom next month.

On Dec. 13, Judge Deborah Servitto will hear a request from a police union to deny the release of Sterling Heights police investigation documents of one officer's alleged alcohol abuse.

In its lawsuit filed last week, the Michigan Association of Police, the union that represents the Sterling Heights officers, argues that federal privacy rules prevent disclosure of the documents. Also, "the specific officer for whom records are sought has been in treatment for a condition covered by the Americans with Disabilities Act," the union adds in its suit.

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TENNESSEE'S FIRST AUDIT: If you need an incident report from the Crockett County Sheriff's Department in West Tennessee, it's best if you have a familiar face, especially if the sheriff's not around.

At the Greene County Sheriff's Department in East Tennessee, getting the document will take a court order. Meanwhile, you might hear ''homeland security'' as a reason to deny your records request at the Cannon County Sheriff's Department in Middle Tennessee.

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AN AUDIT IN NEW YORK: One out of every five New York state agencies is ignoring the law that requires them to disclose public information in a timely fashion, according to a state watchdog group's report released Wednesday.

The New York Public Interest Research Group sent Freedom of Information Law requests to 142 state agencies and authorities, and found 20 percent did not respond within two weeks -- well past the five days required for response under state law. The ones that did respond charged up to $6,000 to provide information that they are required to make available under state law.

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THE 'DELETE' KEY IS GETTING A WORKOUT: Arkansas has a Freedom of Information law that gives citizens the right to inspect public records. The law's effectiveness is severely limited by the lack of a law requiring government agencies to retain records so they can be inspected.

David Ivers of Little Rock, a lawyer and member of a group trying to draft a records-retention law, has gone so far as to say, in a letter to state Rep. Jodie Mahony of El Dorado, that "the absence of a records retention requirement in the law has made the Freedom of Information Act virtually useless now that everything is in electronic format and state agency officials, including top officials at the Department of Human Services, routinely and quickly delete their electronic mail and keep no paper copies. That makes it virtually impossible for the many persons and entities regulated by DHS and various other agencies to find out how decisions that affect them are being made."

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INTERNATIONAL DEVELOPMENTS

THE VELVET GLOVE, UNCOVERED: Celebrating the 15th anniversary of 1989's Velvet Revolution, former Czech dissident-turned-President Václav Havel has chosen a set of U.S. State Department cables -- obtained under the Freedom of Information Act by the Washington, D.C.-based National Security Archive -- for the first volume in the Václav Havel Library. The volume, entitled Prague-Washington-Prague: Reports from the United States Embassy in Czechoslovakia, November-December 1989, is edited by Vilém Precan, a distinguished Czech historian, and includes the documents in both English and Czech transcription. Several originals are posted today on the National Security Archive website.

The documents constitute the daily and at times virtually minute-by-minute reporting from the Embassy of what it termed the "quiet revolution" unfolding in the country. Today in Prague, students are reenacting the march that brought police repression, public revulsion and the beginning of the end for the Czechoslovak communist regime.

For more information, and to read selected documents from the new volume, please follow the link below:

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ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT

Nick Schwellenbach, a fellow at the Project on Government Oversight, on intelligence reform: Like Oedipus, Congress is gouging out its own eyes rendering itself blind. The intelligence reorganization being contemplated by Congress has aspects that could eviscerate public and legislative access to information. This would frustrate oversight - maiming the ability of Congress and the public to improve intelligence when needed - and open the door to abuse.

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