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The FOI Advocate
Back to The FOI Advocate Index
Feb. 2, 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
"Privacy, ah yes. We all know that comes before public health."
-- Carol Tucker Foreman, a former USDA food-safety chief who now works for the Consumer Federation of America, on
USDA concerrns over "confidential business information" contained in lists of cattle ear tags entering the US from Canada.
DOWN THE STRETCH, SECRECY BECOMES ISSUE: Normally, presidential candidates spend the days leading up to the Iowa caucuses and the New Hampshire primary sucking up to hog farmers and singing the praises of those oh-so-flinty New Englanders. But in the last week, on the eve of the formal start of the 2004 elections, two Democratic contenders took time to talk about a topic that's usually reserved for spooks, conspiracy theorists and a couple of policy geeks: how the government keeps its secrets. There's a faint, but real, possibility that this most opaque of subjects could become a full-blown issue in the presidential campaign.
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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.
A SECRET TEST: A mock cyber-terrorist attack temporarily took over the flow of electricity in a large section of northwest Nueces County late last year but only became public this month. Tension between the public's right to know and the shared government/public interest in national security has taken local meaning in the days since the simulation was revealed by the private company that was paid by the Texas Department of Information Resources to conduct the test.
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GENERAL FOI NEWS
DOES PRIVACY TOP PUBLIC HEALTH? At the Toppenish Livestock Commission, one of the busiest livestock sales yards in Central Washington, a parade of dairy cows past their milking prime marches through each weekhundreds of milk cows in the region have been sold to slaughter auctions with no checks to ensure they were not a part of the original Canadian herd shipped south with the infected animal.
Though it seems simple enough to provide a list of eartag numbers from the Canadian herd to the operators of the auction and slaughterhouses, even if there is only a minimal chance of finding a match, the USDA said there also are privacy concerns.
"The numbers are associated with confidential business operations," she said. "We would need to work through our FOIA (Freedom of Information Act) office to ensure we're not turning over private information."
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SECRET SETTLEMENTS AND WHAT TO DO ABOUT THEM: Secrecy in judicial proceedings emerged as an issue across a broad front last year, raising questions about the proper use of confidential settlements and the legality of cases completely concealed from public scrutiny. Cases were uncovered in Florida and Connecticut that weren't even docketed. One is under review by the U.S. Supreme Court. Thousands of Connecticut cases were sealed with only the parties' names disclosed.
In New Jersey, a case already under wraps featured a court decision that was itself immediately sealed so tightly that the lawyers weren't allowed to show it to their clients.
The legal community seems riven by the issue. Even among lawyers who are convinced that there's a problem, proposed solutions diverge wildly.
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FOI AT WORK: Airports in Chicago and Los Angeles led the nation in the number of federal government screeners who were hired without complete background checks, then fired when checks revealed problems, the Chicago Sun-Times has learned. Only Los Angeles International Airport, also known as LAX, had more "suitability" cases than O'Hare Airport: an estimated 139 vs. 77 as of early June, according to Transportation Security Administration records requested under the Freedom of Information Act last summer and recently delivered. Nationwide, around 1,200 of 55,000-plus screeners were fired for those reasons by early June.
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FOI AT WORK (AGAIN): When Denise Brock sat with her cancer-stricken dad in the 1960s, she made lots of racket, hoping the noise would prevent his dying on her watch. Today, the 43-year-old Brock is clamoring all the louder, a full-time activist on behalf of aging Cold War-era nuclear workers and their survivors.
"I'm obsessed with this," she said, conceding a soft spot for the elderly.
"If I don't help them, who's going to?"
A 3-year-old federal law requires the government to compensate workers in the nuclear weapons industry, or their survivors, for job-related cancer or other diseases. Workers from about 350 sites nationwide may qualify. Documents from innumerable Freedom of Information Act requests fill filing cabinets in the bathroom and bedroom. Last fall, she received 5,000 pages of classified records to help claimants fill information gaps. Among them: decades-old urine analysis reports that told how much uranium dust a worker inhaled and secreted.
Brock has made so many FOIA requests, she obtained fee waivers. Her monthly phone bill averages $700. She regularly calls the Labor Department, which handles the claims.
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US COURTS PUT TRANSCRIPTS ONLINE: Seven federal district courts are participating in a pilot program to make transcripts of courtroom proceedings available online. Those participating are the district courtsfor the Southern District of Alabama, District of Columbia, District of Kansas, District of Maine, Eastern District of Missouri, District of Nebraska, and the Eastern District of New York. In the District of Columbia, the district court currently has an exemption from the prohibition on remote public access to criminal case file information, and will be able to make transcripts of courtroom proceedings in criminal cases available electronically as part of the experiment. In other pilot courts, only transcripts of civil proceedings will be electronically available.
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FOI IS FAMOUS! FOI got a boost Sunday in the nationwide cover story in Parade magazine. The headline: "Why We Have The Right to Know." Herešs the URL:
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FARM SUBSIDY RECORDS STILL A HOT SPOT: Mention the three-year-old online database that lists the names of people who received farm subsidies and the amount of those payments and many producers still get a little hot under the collar.
Launched in 2001, the Environmental Working Groupšs database included information about the two and a half million people who received farm subsidies between 1996 and 2000.
Immediately, farmers across the nation were put on the defensive, answering questions from the general public about the need for government payments.
The EWG created the database through Freedom of Information Act requests to the U.S. Department of Agriculture. It included 70 million records of farm subsidy checks delivered over five years and was searchable by name, city, county or zip code.
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VENTURE CAPITAL IN THE SUNSHINE: The partners at New Enterprise Associates, Baltimore's storied $6 billion venture-capital firm, are probably not thrilled that this column will disclose their confidential results from two decades of investing in health care and technology startups.
But they seem to understand that times change and that light will pierce the exclusive venture-capital club whether venture capitalists like it or not. It's hard to hide $6 billion. Venture capital, which mints companies from dreams and ignited the technology boom of the 1990s, has become too big, too lucrative and too dependent on government pension money to operate in the shadows.
The outing of venture capital started in 2001, when the San Jose Mercury News began asking the California Public Employees' Retirement System for details about its venture-capital bets.
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IN THE STATES
PENNSYLVANIA STILL THE LAND OF SECRETS: State agencies don't want motorists to know the location of Pennsylvania's most treacherous stretch of highway or who schmoozed Ed Rendell in the governor's office as he pushed a $1billion tax increase.
Nor will they disclose the names of nine state troopers who became lawbreakers but continue to enforce the law. And they aren't eager to reveal who has been fined for polluting Western Pennsylvania waterways. Welcome to the world of Pennsylvania's state secrets. A year after highly touted amendments were made to Pennsylvania's 46-year-old Right to Know Law, responses to information requests by the Pittsburgh Tribune-Review from the state's executive, legislative and judicial offices suggest little has changed.
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FOI AT WORK: Some legislators complained yesterday they are being kept in the dark on details of the state's 7E7 agreement with Boeing, even though the Legislature is still on the hook for millions of dollars worth of incentives for the company.
And some lawmakers said there would be no automatic approval for final pieces of the Boeing deal. "This is the Legislature, there are no rubber stamps," said Rep. Ed Murray, D-Seattle.
But rubber stamps are about all Boeing has been getting lately in Olympia.
Lawmakers last year rushed to approve Gov. Gary Locke's proposal to give Boeing $3.2 billion in tax breaks over the next 20 years. And no one expects the Legislature to balk at the additional 7E7-related measures Locke is asking for this year.
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THEY WON, NOW THEY WAIT: Attorneys for The News Journal asked Superior Court on Wednesday to force state officials to comply with a ruling allowing the newspaper to review computerized criminal records.
The newspaper, which has been in a legal battle for six years over access to the state's electronic crime data, has said it wants to analyze 10 years' worth of computerized felony and misdemeanor case records. Newspaper officials said they want the raw data to evaluate how well the criminal justice system is working, but that they are not interested in identifying offenders or victims.
The Attorney General's Office has fought to prevent the release of the identities of law enforcement officers who make arrests, arguing that it would jeopardize their safety, even though the names of arresting officers are a public record and are available from public sources, such as courthouses.
In October 2002, Superior Court Judge William L. Witham Jr. ruled in favor of the state. Last month, however, the state Supreme Court said the Freedom of Information Act does not allow officials to withhold information about law enforcement officers on the basis of officer safety. But when News Journal lawyers requested the information Jan. 14, the Delaware Criminal Justice Information System denied the request without showing cause, newspaper attorney Alyssa M. Schwartz said. The agency keeps computerized records of arrests and criminal convictions.
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WHEN INVESTIGATIONS WONšT END: It has been 30 years since Peter Reilly was wrongfully convicted of his mother's murder, and he still wants to find the killer. But on Thursday, he learned that the police do not want anyone turning to the case files for clues. Mr. Reilly's conviction spawned two books and a television movie. Celebrities like the playwright Arthur Miller and neighbors took up his cause, and he was exonerated in 1977.
On Thursday, he attended a hearing of the state's Freedom of Information Commission here on whether the state police are required to open investigative files on the killing of his mother, Barbara Gibbons. An author and a local newspaper have appealed to the commission to open the records.
Under state law, once a criminal investigation is concluded, the records are public, with few exceptions. On Thursday, state officials said at the hearing that the investigation was still active, but that records of it did not exist. Dawn Hellier, a lawyer for the State Department of Public Safety, said during questioning that the investigation "would be active if any new information came in." But Mr. Connery said his research shows the state police have not actively investigated the case for 25 years.
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COLUMBINE RECORDS STILL CLOSED: The Colorado Court of Appeals today rejected a request to see sheriff's records of the Columbine High School massacre, saying a lower court must first determine if they can be released.
The Jefferson County sheriff's records were sought by The Denver Post, which appealed a court order that writings and tape recordings were protected as criminal justice records because the police investigation was over.
The materials came from the homes of Eric Harris and Dylan Klebold, the two teenagers who gunned down 12 classmates and one teacher before killing themselves in the 1999 rampage.
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MAYOR CHARGES COUNCIL: In a move that the Darby Borough Council president called "grandstanding," Mayor Paula M. Brown filed a criminal complaint yesterday alleging that the council had broken the law.
"It's the only thing I can think of that's going to make them comply with the law," Brown said.
In the complaint, Brown, three council members, and three residents alleged that five council members violated Pennsylvania's open-meetings law, the "Sunshine Act," by failing to advertise a meeting this month. The complaint also alleged that the council violated the act by refusing to allow Brown to speak at meetings.
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PAPERS SEEK "SUPER-SECRET" CASES: The Record-Journal has joined The New York Times, the Associated Press, The Day of New London and several other news organizations in a friend of the court filing to open state court cases that have been kept secret.
The Connecticut Law Tribune and The Hartford Courant filed a federal lawsuit last year against the Connecticut court system after it refused to make public certain cases. The Record-Journal and seven other journalistic organizations filed an amici curiae (friends of the court) brief Jan. 22 with the Second Circuit Court of Appeals in New York City, where the case is on appeal.
The lawsuit stems from a controversy that has roiled state courts since the disclosure in 2003 that the contents of more than 10,000 case files in Connecticut Superior Courts were sealed from public view, and that the existence of another much smaller number of cases was kept entirely secret.
The rich, famous and powerful were among those who were able to keep their cases secret.
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LEGISLATIVE UPDATE
POLICE WANT IDENTITY PROTECTION: Delaware state legislators introduced a bill Thursday to prohibit public access to the names and identification numbers of police, probation and parole officers contained in Delaware's computerized criminal-justice database.
House Bill 319, sponsored by House Speaker Terry Spence, R-Stratford, and Sen. James T. Vaughn, D-Clayton, was introduced Thursday at the request of Attorney General M. Jane Brady. If passed, the bill would counter a recent state Supreme Court decision in favor of The News Journal, which has sought the data.
The newspaper has said it wants to analyze 10 years' worth of computerized felony and misdemeanor case records. Newspaper officials have said they want the raw data in order to evaluate how well the criminal justice system is working, but that they are not interested in identifying offenders or victims.
http://www.delawareonline.com/newsjournal/local/2004/01/16billbansaccesst.html
The bill cleared the Delaware House on a 37-vote.
http://www.delawareonline.com/newsjournal/local/2004/01/23houseoksbillden.html
The Senate late Wednesday relaxed a bill that would have barred public access to law enforcement officer names held in a criminal justice database, prompting supporters of the bill to table it before a final vote.
The Senate amendment capped a 2 1/2 -hour debate over H.B. 319, initiated by Attorney General M. Jane Brady this month after the state Supreme Court ordered part of the database be released to The News Journal.
The court decision required the Delaware Justice Information System to provide names of arresting officers along with other details from a decade of criminal cases.
http://www.delawareonline.com/newsjournal/local/2004/01/29policedatabaseb.html
MAINE LOOKS AT STRONGER LAW: A maximum fee for copying public records is among the recommendations of a legislative study committee looking for ways to improve access to public records in Maine. Recommendations of the 16-member study panel, whose members include lawmakers, journalists, public officials, police and citizen representatives, will be drafted into legislation.
The Committee to Study Compliance with Maine's Freedom of Access Laws was formed after a statewide audit of public records last year showed a lack of compliance with Maine's 45-year-old public access and public records laws.
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VIRGINIA TO CLSE LEGISLATURE? The majority leader of the House of Delegates is proposing that the legislature be exempted from Virginiašs open government laws.
Del. H. Morgan Griffith, R-Salem, said he does not intend for his bill, HB1357, to block the public from being present at meetings of the legislature or its committees. He also said he supports the decision by House budget negotiators last year to open their discussions.
Griffith said his bill would, however, allow lawmakers to decide whether their political caucuses and informal gatherings should be closed. The proposal is a reaction to an opinion last year by Attorney General Jerry W. Kilgore, which said a pre-arranged meeting of three or more legislators to discuss votes on issues before the Assembly must be open the public.
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INTERNATIONAL
UK OPENNESS FACES RESISTANCE: Bob Phillis, chairman of the review into government communications, warned MPs yesterday he had "doubts and concerns" on whether ministers would beef up the Freedom of Information Act to open up Whitehall to more scrutiny.
He told Gordon Prentice, Labour MP for Pendle, at a hearing of the Commons public administration committee, that he was worried some of his proposals, published on Monday, would not be enacted. His report calls for more open government, radical reforms of the parliamentary lobby system, and the scrapping of the existing government information and communications service.
So far the government has promised to act on one of his recommendations - the creation of a new permanent secretary's post, filled by a professional, to oversee the integrity and impartiality of government communiciations.
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QUID PRO QUO IN ZAMBIA? Information minister Mutale Nalumango has urged journalists in Zambia to regulate themselves and exercise more responsibility in their work instead of only demanding the presentation of the Freedom of Information Bill in Parliament.
The minister said that Government could delay the presentation of the amended bill if journalists did not act professionally. Mrs Nalumango said in an interview in Lusaka that Government was committed to amending the bill as long as the journalists did not disregard their professional ethics.
"The media, like any other profession, will have to show Government its ethical guidelines that are going to regulate its conduct relating to the information that they will disseminate to the public," Mrs Nalumango said.
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USING THE NEW LAW IN MEXICO: When Santiago Ortiz became suspicious about how public funds were being spent at his 7-year-old daughter's school, he decided to see for himself in a way that no Mexican could until now.
The printer from a small town in Tabasco state signed onto his computer at home. He dialed into a new government Web site. Then he filled out a form, asking how much federal money the Benito Juarez elementary school had received during the last two years.
The answer he got back - $40,000 - was a simple public statistic. But that he got an answer at all was revolutionary in a country where the government employed tight-fisted secrecy to maintain a grip on power for most of the last century.
Under a new freedom of information law signed by President Vicente Fox, Mexico has taken a step toward breeding a culture of openness. More than ever, the law allows citizens to monitor public officials and to find out how to compete for a government contract and make sure their children are being educated properly.
Story Link (registration required)
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
Kenichi Tsuruoka, Yomiuri Shimbun Senior Editor, on the enduring legacy of secrecy in Japan: "The Foreign Ministry has refused a request by The Yomiuri Shimbun to disclose information regarding investigations into a series of ministry slush-fund scandals, which resulted in about 370 ministry officials being disciplined.
The combined slush funds totaled about 460 million yen over seven years up to 2002. Of this, more than 68 million yen was misappropriated for about 360 fictitious meetings. The scandals, which involved 71 ministry divisions and offices, revealed the ministry's poor sense of responsibility regarding public money and its tendency to keep information secret.
The ministry still appears to lack instructions on how to improve its secretive nature."
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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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