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The FOI Advocate
Back to The FOI Advocate Index


Jan. 15, 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 Office of the Vice President's unwillingness to provide the [Task Force] records or other related information precluded GAO from fully achieving its objectives and substantially limited GAO's ability to comprehensively analyze the [Task Force] process.”
-- The GAO’s final report on the Vice President’s energy task force, August 26, 2003

SECRECY MAKING HEADLINES: U.S. News & World Report devotes several pages to an excellent summary of the endemic secrecy surrounding the federal government, in tandem with Bill Moyers’ NOW, which devoted its Dec. 12 edition to the topic.

Story Link

SUPREMES TAKE TASK FORCE CASE: The Supreme Court said Monday it will settle a fight stemming from Vice President Dick Cheney's contacts with the energy industry as the Bush administration was drafting its energy policy.

The court agreed to hear an appeal from the administration, which is fighting a lawsuit over the relationships between industry and the energy task force Cheney assembled. The panel met for several months in 2001 and issued a report that favored opening more public lands to oil and gas drilling and proposes a wide range of other steps supported by industry.

The suit, brought by environmental and energy groups, seeks to force the administration to provide details about the panel's records and inner workings. The groups allege the industry representatives in effect functioned as members of the government panel, which included Cabinet secretaries and lower-level government employees.

http://www.washingtonpost.com/wp-dyn/articles/
http://www.nytimes.com/2004/01/13/politics/

...BUT THEY TURN DOWN DETAINEE NAMES CASE: The Supreme Court turned away a petition to review the Bush Administration's policy of withholding the names of hundreds individuals detained after September 11. The disclosure of detainees identities and related information had been requested under the Freedom of Information Act.

The Supreme Court action leaves in place a June 2003 appellate court decision that appears to significantly expand judicial deference to executive branch secrecy.

http://www.nytimes.com/2004/01/13/politics/13SCOT.html
http://www.fas.org/sgp/jud/cnss061703.pdf

A critical view of that decision was provided by the plaintiffs in the case, led by the Center for National Security Studies, in their petition to the Supreme Court:

http://www.cnss.org/CNSS%20Cert%20Petition%20Final.pdf

The reply from the Office of Solicitor General, which successfully argued against Supreme Court review of the case, is here:

http://www.usdoj.gov/osg/briefs/2003/0responses/2003-0472.resp.pdf

ANOTHER GUV WITH SOME FILES CLOSED: Boxes of records from the 11-year administration of former Gov. Mike Leavitt will be preserved in electronic form for easy access to historians and interested citizens, officials say.

But the trove of materials won't include documents, letters, e-mails and other records related to Leavitt's nomination and confirmation as Environmental Protection Agency administrator.

The Governor's Office says few EPA-related documents were left behind by the previous administration, and officials are refusing to publicly release most of those, declaring they are confidential.

For example, about 100 pages of EPA documents in two briefing books recently were discovered in the former state Capitol office of Rich McKeown, Leavitt's chief of staff as governor and now his senior counselor at the EPA.

Story Link

PAGING MR. ORWELL: It's not quite Soviet-style airbrushing, but the Bush administration has been using cyberspace to make some of its own cosmetic touch-ups to history. White House officials were steamed when Andrew S. Natsios, the administrator of the U.S. Agency for International Development, said earlier this year that U.S. taxpayers would not have to pay more than $1.7 billion to reconstruct Iraq -- which turned out to be a gross understatement of the tens of billions of dollars the government now expects to spend.

Recently, however, the government has purged the offending comments by Natsios from the agency's Web site. The transcript, and links to it, have vanished.

http://www.washingtonpost.com/wp-dyn/articles/A9821-2003Dec17.html

A nice summary of other Orwellian moves can be found at: http://www.americanprogress.org/site/pp.asp?c=biJRJ8OVF&b=15071

ANOTHER INFO GRAB: Under a new proposal, the White House would decide what and when the public would be told about an outbreak of mad cow disease, an anthrax release, a nuclear plant accident or any other crisis.

The White House Office of Management and Budget is trying to gain final control over release of emergency declarations from the federal agencies responsible for public health, safety and the environment.

The OMB also wants to manage scientific and technical evaluations - known as peer reviews - of all major government rules, plans, proposed regulations and pronouncements.

A nonpartisan group of 20 former top agency officials sent a letter to the OMB asking the White House watchdog agency to withdraw its proposal, saying it "could damage the federal system for protecting public health and the environment."

http://www.stltoday.com/stltoday/news/stories.nsf/News/

The proposed bulletin is available online: http://www.whitehouse.gov/omb/fedreg/030915.pdf

Here is an OMB slide presentation on the topic: http://www.whitehouse.gov/omb/inforeg/speeches/031118_graham_slides.pdf

Conveniently, OMB has put all 187 public comments it has received so far on its website: http://www.whitehouse.gov/omb/inforeg/2003iq/iq_list.html

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.

NSA CAN NOW SUMMARILY REJECT REQUESTS: The National Security Agency has won the authority to automatically turn down requests by citizens for records on how the spy agency eavesdrops on foreign countries.

The new power, part of legislation signed into law recently by President Bush, comes over the protest of government watchdog and civil rights groups, which worried that the eavesdropping agency was trying to cloak itself in another layer of secrecy.

The Fort Meade-based NSA has argued that the measure is simply a labor saver, freeing the agency from time-consuming record searches that detracted from the war on terror.

The provision, buried in the defense authorization act signed by the president Nov. 24, applies to requests filed by the public under the Freedom of Information Act, or FOIA.

Story Link

WHY ACCESS IS IMPORTANT POST-9/11: Shortly before 5:30 p.m. on Oct. 17, 2001, the U.S. Nuclear Regulatory Commission received word of an immediate threat against Three Mile Island’s unit 1 nuclear reactor in Dauphin County.

An American who controlled the “refrigeration” to the reactor was to attack the plant’s interior while a mid-sized airplane would deliberately crash into the reactor containment building.

The two-pronged attack on the Londonderry Township plant was scheduled to occur at 11 o’clock. Five weeks in the shadow of Sept. 11 and at a time when anthrax was turning up around the nation, this threat was taken most seriously.

Federal, state and plant officials eventually deemed the threat not to be credible. But actions taken that night served as a 14-hour rehearsal and taught lessons on how to improve security at nuclear power plants.

The York Daily Record obtained the reports and handwritten notes regarding that night through a Freedom Of Information Act request.

The documents reveal the following: Since the threat, TMI officials have taken steps to better coordinate their response should a similar threat arise. Management would now declare an unusual event at the plant and notify state, county and local officials.

Story Link

Related coverage at:
http://ydr.com/story/defense/16674/
http://ydr.com/story/defense/16672/

GENERAL FOI NEWS

A SHOCKING BILL: The U.S. Bureau of Land Management answers about 100 Freedom of Information Act requests a year in California, usually without charging fees for its services.

So it came as a shock to Sierra Club representative Edie Harmon of San Diego to learn recently that it would cost her group $25,280 for the BLM to provide the information she had sought in seven FOIA inquiries about off-road vehicle activity in California desert land managed by the agency.

"It's an outrage; I think they're trying to stonewall us," Harmon said. "I've never had to pay one penny for the FOIA requests I've filed in the past."

In their suit, the groups said that the problem began with a memorandum issued by Atty. Gen. John Ashcroft in October 2001, reversing an earlier Clinton administration policy of granting FOIA requests from such groups.

Story Link

IN THE STATES

COURTS WEIGH PRIVACY, ACCESS: In Dayton, Ohio, Stephany Scott checks online court records from home to see if prospective suitors have a history of assault or other crimes. "I do it for all my girlfriends," she says.

In Florida's Manatee County, parents have checked on prospective nannies, landlords on potential tenants and homeowners on home-repair outfits, all through local court records available on the Internet.

In Iowa, as many as 250,000 times a day, people click on a statewide court database that allows them to check a case's status or see if an ex-spouse has made a child-support payment, in what Chief Justice Louis Lavorato describes as "a huge benefit to busy Iowans who cannot take time away from their jobs or families to travel to the nearest courthouse."

But in Kentucky, the state Supreme Court won't allow the public online access to court records.

Although Kentucky has a statewide court database whose stated purpose is to "provide easy and expeditious access to criminal and civil cases," the Supreme Court and its management arm, the Administrative Office of the Courts, cite concerns about identity theft and privacy in refusing to grant the public remote access to it.

Story Link

VICTIM NAMES A SECRET? City officials in Havre are asking the state attorney general for an opinion on whether police can keep secret the names of all victims of nearly all major crimes and even where some offenses occur.

The request has sparked concern among news organizations in the state, who say the city wants to keep people from seeing information state law says they have a right to see.

In a letter to Attorney General Mike McGrath last month, Havre City Attorney Mary VanBuskirk requested a formal opinion about whether police may, if asked by victims, deliberately withhold information about the victims and the locations of “crimes against persons.”

Those include homicide, kidnapping, robbery, assault and a host of family crimes such as custodial interference and failure to pay child support.

VanBuskirk’s letter quotes an excerpt from a 1988 opinion by then-Attorney General Mike Greeley, which said that when a specific privacy right is involved, certain information may be “altered by deletion” from public records to preserve the privacy of the individual.

Story Link

A WELL-ORGANIZED COVERUP: When The Seattle Times asked the Bellevue School District for information about teachers and coaches accused of sexual misconduct, school officials and the state's most powerful union teamed up behind the scenes to try to hide the files.

Bellevue school officials even let teachers purge their own records at union-organized "file parties" to prevent disclosure.

The alliance between school districts and the teachers union began last December after The Times asked 10 of the state's largest school districts for public information on sexual-misconduct complaints against teachers. The newspaper was looking in particular for complaints against those teachers who also worked as coaches.

"There is no reason we would ever want to drag current or former employees through public attention to such matters — even those who were found to have committed misconduct," Sharon Howard, an attorney and an assistant Bellevue schools superintendent, wrote in an e-mail obtained by The Times.

Story Link

BLACKBERRYS POSE NEW ACCESS ISSUES: Instant e-mail messages sent by Davenport aldermen — if they agree to use computer-aided communications devices — would be a matter of public record, spokesmen for the Iowa Attorney General and a state 1st Amendment watchdog group say.

Instant transcripts of meetings typed to help Alderman-elect Keith Meyer — who will represent the 3rd Ward — follow discussions also should be made available to the public, except for subject matter that is specifically exempt under Iowa’s open records law, the spokesmen say.

"Generally speaking, transcripts and e-mails are considered to be public records and should be made available on request to the public," said Bob Brammer, the attorney general’s spokesman.

As aldermen consider whether to use the Blackberry, a combination cellular telephone and instant e-mail device, they also should talk about how they intend to abide by the state’s open records law so the content of their e-mails can be made available to those who request them, said Kathleen Richardson, the director of the Iowa Freedom of Information Council.

Story Link

GIS DATA PUBLIC, COURT SAYS: For the second time in a little more than a year, Greenwich officials learned yesterday that the town was on the losing end of a landmark public-records dispute involving the release of aerial photographs and digital maps contained in a municipal database.

State Superior Court Judge Howard Owens Jr. dismissed the town's appeal of a November 2002 state Freedom of Information Commission ruling in which the public-records agency ordered the Town of Greenwich to give citizens access to materials in its geographic information system.

The town fought to exempt the materials from public-records laws, saying the release of detailed information on infrastructure, public safety facilities, schools and celebrities' homes would lead to breaches in security and privacy.

Story Link

CAUCUS MEETINGS MIGHT BE PUBLIC: A legislative caucus is not a public body under Virginia's Freedom of Information Act, but when it is held to discuss upcoming votes, it is conducting public business and the act's open meetings requirements apply, the state attorney general said in an opinion issued Tuesday. Legislative caucuses in Virginia are partisan meetings of legislators to discuss strategy, fund-raising and other party business. The meetings, held while the legislature is in session, are announced on the legislative floor, published in the Senate and General Assembly calendars, and held in the state Capitol building.

Story Link

PRIVATE SETTLEMENTS IN THE PUBLIC INTEREST? The spending of public money, a public employee's job performance and a public body's alleged malfeasance are matters of public record, an attorney for The Times of Northwest Indiana argued Wednesday.

Not so, if the release of those records violates the privacy of the public employee and they contain "personal files and personal information maintained in respect to employees," a Dolton School District 149 attorney countered in Cook County Circuit Court.

Both attorneys made those arguments at the Daley Center before Judge Deborah Dooley, who did not rule on The Times' request for a summary judgment in its lawsuit against District 149.

The Times is seeking the terms of a settlement between District 149 and former Superintendent Doris Hope-Jackson under the Illinois Freedom of Information Act.

Dorkin argued the public is entitled to know how much District 149 agreed to spend in the settlement. He also said any information that "bears on the public duties of public employees and officials" is public record under the FOI Act.

"This was not a private relationship," Dorkin said. "This was a public relationship with a public employee who alleged public malfeasance."

Story Link

FIREFIGHTERS' TAPES RELEASED: An appeals court has ruled that the New York City Fire Department cannot edit out statements about emergency workers' personal feelings when it releases documents and audiotapes showing the response to the 2001 terrorist attacks.

The State Supreme Court's Appellate Division partially reversed a lower court ruling that directed disclosure of the firefighters' and emergency workers' oral histories, but ordered the removal of their personal expressions of feeling, opinions and recommendations.

In its 5-0 ruling made public Thursday, the appeals court ordered that the workers' expressions of personal feelings should be restored, saying they did not fall into any category that makes public agency documents exempt.

But the court did not require the city to divulge the firefighters' opinions and recommendations about the attacks, concluding that such material is covered by an exemption under state law.

The appeals court ruled in response to a request by The New York Times to obtain tapes of 911 calls made from the World Trade Center on Sept. 11, as well as firefighters' internal interviews following the attacks.

Story Link

VOTERS TO GET CALI AMENDMENT: A constitutional amendment to strengthen the public's right to review government documents and attend meetings of every public agency was approved Monday by California lawmakers, who exempted themselves from the provisions.

Voters will have the final say in deciding whether California's relatively weak freedom-of-information law should be bolstered after a 76-0 vote in the state Assembly to put the amendment on the November ballot. The state Senate also approved the constitutional amendment without a no vote.

The movement in Sacramento to provide more open government is not done, however. A spokeswoman for Gov. Arnold Schwarzenegger, who campaigned on the issue during the recall, said the governor would introduce more reforms in the coming months, including possibly requiring more openness from the Legislature.

Story Link

STUDENT SEEKS PRIMATE RESEARCH PROTOCOLS: More than 100 monkeys were involved in experiments at the University of Utah between October 1998 and February 2003. Some primates were as young as 6 months old.

But good luck finding out what was done to them.

The school's attorney says that information, and the researchers who gather it, should be protected -- from public disclosure, from curious competitors and from people such as Jeremy Beckham.

Beckham, 18, a freshman and budding biologist is, nonetheless, upset about animal testing. Taxpayers would be, too, Beckham insists, if they knew what was taking place in laboratories funded with federal grants and state money, like those at the U.

Last fall, Beckham filed an open-records request for research protocols containing blow-by-blow descriptions of experiments involving primates, including what anesthesia is used on the animals, whether they are restrained, and what kind of post-operative care they receive.

Story Link

LEGISLATIVE UPDATE

MORE EXEMPTIONS IN IOWA? Iowa lawmakers are likely to consider blocking public access to certain transportation and economic development records this session. That comes on the heels of votes in recent years to close autopsy and other records. The executive secretary of the Iowa Freedom of Information Council said every session seems to bring an attempt to close more public information.

The list of exceptions to the state's public records law has grown by 29 since 1984. In all there are 47 types of records sealed to the public.

http://www.theiowachannel.com/politics/2758601/detail.html
http://www.dailygate.com/articles/2004/01/13/news/news4.txt

INTERNATIONAL

IRISH BUSINESSES GETTING ON BANDWAGON: Businesses accounted for 9 per cent of requests made under the Freedom of Information Act since 1998, according to the Department of Finance. In particular, the statistics show that there has been alarge volume of requests from businesses for FoI statistics from health boards and local authorities.

One of the areas in which businesses have used the legislation is in relation to obtaining information about doing business with the government.

Story Link

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

William Safire on the Cheney case: "Beyond this case, even when it comes to federal officials, the argument that only secrecy ensures candor is specious. Presidents record and blab; speechwriters remember and tell all; most advisers want their "private" advice to become known. When, in a memoir, I protected a colleague by not mentioning his unpopular advice in an Oval Office meeting, he objected furiously to having been left out of history.

If "freedom" is the word Bush and Cheney want as the hallmark of their administration, they should begin with freedom of information."

Story Link

Douglas Lee, an attorney with Ehrmann Gahlbach Badger & Lee on judicial secrecy: “While no one disputes the notion that investigations and prosecutions of terrorists require some secrecy, that need cannot justify the creation of secret court dockets and blanket closure orders. Our judicial system has been rooted in a presumption of openness, a presumption that can be overcome only in limited circumstances and only after evidence is introduced demonstrating why closure is necessary. Even when secret court proceedings or hearings are allowed, the presumption of openness has required that the existence of the case and its non-secret aspects be open and available to the public…”

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