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The FOI Advocate
Back to The FOI Advocate Index
March 31, 2004
The E-Newsletter of the National Freedom of Information Coalition
"A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity
and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty."
-- 110 Congressional Record 17, 087 (1964) (Statement of Senator Long)
A Publication of The Freedom of Information Center
A Unit of the Missouri School of Journalism
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers
to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
-- Justice Louis Brandeis, 1928
TOP OF THE NEWS
"The breadth of what they are asking for is a little breathtaking. The question is, how deeply should the government
be able to control the design of the Internet? . . . If you want to bring the economy to a halt, put the FBI in charge
of deploying new Internet and communications services."
-- James Dempsey
PAGING MR. ORWELL: Writers often grumble about the criminal things editors do to their
prose. The federal government has recently weighed in on the same issue ?
literally.
It has warned publishers they may face grave legal consequences for
editing manuscripts from Iran and other disfavored nations, on the ground
that such tinkering amounts to trading with the enemy.
Anyone who publishes material from a country under a trade embargo is
forbidden to reorder paragraphs or sentences, correct syntax or grammar,
or replace "inappropriate words," according to several advisory letters
from the Treasury Department in recent months.
Adding illustrations is prohibited, too. To the baffled dismay of
publishers, editors and translators who have been briefed about the
policy, only publication of "camera-ready copies of manuscripts" is
allowed.
Story Link
THEY'RE BAAAAAACK? The Justice Department wants to significantly expand the government's
ability to monitor online traffic, proposing that providers of high-speed
Internet service should be forced to grant easier access for FBI wiretaps
and other electronic surveillance, according to documents and government
officials.
A petition filed this week with the Federal Communications Commission also
suggests that consumers should be required to foot the bill.
Law enforcement agencies have been increasingly concerned that
fast-growing telephone service over the Internet could be a way for
terrorists and criminals to evade surveillance. But the petition also
moves beyond Internet telephony, leading several technology experts and
privacy advocates yesterday to warn that many types of online
communication, including instant messages and visits to Web sites, could
be covered.
But privacy and technology experts said the proposal is overly broad and
raises serious privacy and business concerns. James X. Dempsey, executive
director of the Center for Democracy & Technology, a public interest
group, said the FBI is attempting to dictate how the Internet should be
engineered to permit whatever level of surveillance law enforcement deems
necessary.
Story Link
ANTI-TERROR NEWS
"They should not be trotting out federal flight-deck officers to say good things about the [TSA] program while
muzzling pilots who are critical of the program. It's a double standard."
-- Brian Darling, a lobbyist for the Coalition of Airline Pilots Associations, which represents pilots at
American Airlines, Southwest, UPS, Airborne Express and AirTran, in a Washington Post story on the secrecy
surrounding the airport security issue. TSA spokesman Brian Turmail said any pilot is free to express his views
about the program, so long as he is not identified by name.
A NOVEL USE OF HOMELAND SECURITY EXEMPTION: Roanoke officials have blocked access to development documents commonly
available to the public, citing a new law intended to protect against
terrorism.
The city took the unusual step on behalf of a Citibank unit, also granting
it property tax breaks to build a $200 million data processing center near
Alliance Airport.
The city officials have classified site maps and other documents related
to Citibank's planned facility "For Official Use Only."
City Attorney Jeff Moore said Roanoke may conceal the documents under the
state Homeland Security law, which took effect Sept. 1. The law generally
exempts information about "critical infrastructures" from public
disclosure, if the information is gathered to prevent or investigate
terrorism.
Story Link
NUKE SECURITY SHROUDED IN SECRECY: Nineteen men in four squads. That's the size of the terrorist threat
that some nuclear critics say armed guards at U.S. nuclear power plants
and weapons facilities should be able to rebuff.
The figure is pegged to the Sept. 11, 2001, al Qaeda assaults on the World
Trade Center and Pentagon. The Bush administration has updated a much
weaker 1980s-era standard, but government and congressional officials say
the presumed attack still involves considerably fewer than 19 terrorists
-- and that means requiring a smaller guard force than critics say is
necessary.
A legal dispute related to this standard has now arisen, but -- as in
other recent discussions of the administration's response to terrorism
threats -- the squabbling is occurring almost entirely outside public
view. The immediate issue is an unclassified request by a nuclear power
plant operator for an exemption from certain parts of the new security
requirements.
Story Link
GENERAL FOI NEWS
PODESTA SPEAKS ON SECRECY: Former Clinton administration official John Podesta outlined the damage
done by secrecy in an address at Princeton. The speech, delivered in
Podesta's new role as director of the Center for American Progress, is a
useful history of the topic.
Story Link
IN THE STATES
FOIFT ASKS GUV FOR RECORDS: The Freedom of Information Foundation of Texas filed an extensive public
information request Tuesday, prompted by closed-door policies of Gov. Rick
Perry's newly created management council.
The group, which seeks to ensure the public's business is conducted in
public, sought agendas and 10 other types of written records related to
the first meeting of the Governor's Management Council on Feb. 25.
Perry chose to shut the public out of all but his own introductory
comments at the meeting attended by 11 "executive branch" agency heads and
other officials.
In order to ensure a "free flow of information," Perry said after the
meeting ended, it's "quite appropriate to close the doors."
Foundation attorney Joseph Larsen, of the Houston firm Ogden, Gibson,
White, Broocks & Longoria, said that particular comment alarmed the
open-government advocacy group, which is based in Dallas.
"He's apparently hostile to open government by his acts and deeds," Larsen
said of Perry. "Going back to the entire government reorganization, he
sought to completely close access to his working budget."
Story Link
FOIA AT WORK: Gov. Ed Rendell's appetite is legendary.
The Pittsburgh Tribune-Review learned why when it tallied food and
catering bills from the Philadelphia Democrat's first 11 months in office.
The total: $75,918.
That's an average of almost $230 a day -- for a household of one when the
governor's wife, Marjorie O. Rendell, is working in Philadelphia as a
federal appeals judge.
Taxpayers in Ohio are not nearly as generous. Their governor has a
part-time chef and a $14,000 annual budget for food.
Although Rendell did not respond to the Trib's request for comment, press
secretary Kate Philips said the bills reflect the governor's use of the
official residence rather than an outsized appetite.
Those who know Rendell speculate that his snacks are substantial, indeed.
"Governor Rendell is a very valiant trencherman of legendary proportions,"
said House Minority Leader H. William DeWeese, D-Greene County.
Story Link
E-MAILS NO MEETING, COURT SAYS? The state Supreme Court ruled yesterday that three Fredericksburg city
officials e-mailing about city business does not constitute a "meeting"
under Virginia's freedom of information laws.
The ruling ended a bitter dispute but only partially clarified an issue
becoming more common as computers are used as a mode of communication.
The high court said the e-mails in this case were exchanged over periods
ranging from four hours to two days and were more like regular letters
than face-to-face meetings. However, the court distinguished e-mail from
such technologies as instant messaging and chat rooms, saying those were
instantaneous and thus could constitute a meeting.
Forrest M. Landon, executive director of the Virginia Coalition for Open
Government, said neither the court nor state law is clear on when e-mails
constitute a meeting.
"The problem is, what is simultaneous?" he asked. "Does that mean three
hours and 30 minutes might be? Or 15 minutes? It depends whether someone's
[Internet connection] is working? It still leaves a window for great
mischief and needs to be addressed."
Story Link
MARYLAND ACCESS RULES OUT: The Maryland Court of Appeals overwhelmingly adopted rules governing
electronic access to court records last month in a decision which
delighted state open records advocates. The new rules, effective October
1, allow access electronically to the same records available in paper
format, and weigh heavily in favor of public access. Representatives of
the Washington Post and the Maryland-Delaware-DC Press Association played
key roles in crafting the provisions and in the adoption of the rules.
While some issues have yet to be settled, most are satisfied that the
rules strike an appropriate balance between privacy concerns and the
public's right to know.
The Maryland Judiciary can be found at: http://www.courts.state.md.us
THAT'S THE JOB I WANT! The Wyoming County senior services director whose pay topped $300,000 in
2002 has refused to release his organization's financial records to the
media and could face a challenge from some lawmakers who say his agency's
operations should be public record.
Bob Graham also might have to face a potential drop in his income. The
House Finance Committee on Monday passed legislation that could impose a
60 percent tax on any senior director whose salary exceeds $100,000 a
year.
Graham's $302,000 pay in 2002 has both the media and state lawmakers
asking questions about how his agency operates. Now he contends his senior
service group is not a "public body" and therefore is not subject to the
state's Freedom of Information Act.
Graham, who in 2002 made seven times the average senior director, and
Lincoln County senior director Alice Tomblin, who made $137,000 that year,
have both refused a request from the Daily Mail to turn over information
about personnel, salaries, benefits, travel, facilities renovations and
operating expenses for their senior groups.
They both responded to a detailed Freedom of Information Act request with
identical form letters declining to turn over their records, claiming
neither group qualifies as a public body under state code.
Story Link
WELCOME NORTH CAROLINA! Newspaper executives, broadcasters, lawyers and librarians are joining
forces to try to promote the public's access to government in North
Carolina.
After nine months of groundwork, the North Carolina Open Government
Coalition is to hold its first official meeting March 22 at Elon
University. Organizers say the state is one of only a handful in the
nation that does not already have such a group up and running. A similar
group in Virginia has been operating since 1996.
"We are on the trailing edge of states getting organized and getting this
started," said Frank Barrows, managing editor of The Charlotte Observer.
Barrows and Melanie Sill, executive editor of The News & Observer of
Raleigh, have been major organizers of the new coalition.
"We're in a time where government has more and more information,
electronically, that it stores and in all kinds of ways there seems to be
an impulse toward secrecy," Sill said Wednesday. "Some people who are
interested (in open government) are motivated by the Patriot Act issues.
Others see this as an ongoing issue."
Unlike a group like the North Carolina Press Association, which approaches
freedom of information issues from a media-centered perspective, the new
coalition will attempt to make government more accessible for everyone
from investigative reporters to citizens trying to find old property
records.
Story Link
TENNESSEE PASSES CAMPUS CRIME LAW: Gov. Phil Bredesen signed a law March 12 that amends the Tennessee Open
Records Act to require state public colleges and universities to disclose
certain campus crime information, signaling a victory for lawmakers who
were foiled in their effort to achieve the same results from legislation
enacted last year. State Sen. Tim Burchett, R-Knoxville, and state Rep.
Harry Brooks, R-Knoxville, co-sponsored the bill, which mandates
disclosure of three types of student disciplinary records. The first is
the final results of disciplinary actions where a student is found
responsible for a violent crime or nonforcible sex offense. The second is
information about a student who is a registered sex offender. Information
in those two categories is available to the public and to victims under
the law. The final category of information relates to violations of any
law or rule governing the use or possession of alcohol or drugs by a
student under the age of 21. However, such information will be disclosed
only to the student's parent or legal guardian. The law will take effect
July 1.
Story Link
VOTE ON PAY RAISES UPHELD: The state Open Meetings Compliance Board has ruled that the Anne Arundel
County school board did not violate sunshine laws when it held a private
vote to grant pay raises to school administrators.
The compliance board found that the school board's vote on Dec. 3 applied
only to five employees and was permissible under the personnel exception
of the state Open Meetings Act, which protects the privacy of individual
employees?
But the account of the closed meeting recounted by the compliance board
differed from one that some school officials offered last month.
Rudolph and Synthia Shilling, an assistant superintendent present at the
meeting, said they recalled that the school board voted to grant the
raises to two classes of employees - an action that would not be covered
by the act's personnel exception.
Story Link
LEGISLATIVE UPDATE
ALABAMA GROUP HOSTS 'SUNSHINE SUNDAY': With a proposed new law introduced in the Legislature, news
organizations in Alabama are holding "Sunshine Sunday" on March 14 to put
a spotlight on the issue. The project includes articles and editorials
supporting the public's right to know what is taking place in county and
state offices, city halls and local school boards.
Organized by the Alabama Center for Open Government, it is the first
"Sunshine Sunday" in the state and is modeled partly on a similar project
in Florida, which has one of the nation's strongest laws protecting public
access to government meetings and records.
"We want to keep the subject in the public agenda," said Ed Mullins,
center founder and journalism department chairman at the University of
Alabama. "It's not a sexy subject. But it's important."
It became more important following the Supreme Court rulings - one
involving Auburn University trustee committees that met in private, the
other a state permit vote cast by secret ballot to break a tie in a Shelby
Medical Center case.
Before those rulings, "there were a lot of differences of opinion on
whether the law needed to be changed," said Bailey. Afterward, the
movement to seek a stronger Sunshine Law was forged.
Story Link
PENSION INFO CLOSING: Although lawmakers accomplished little in their latest session, the
General Assembly did pass a bill to make sure details about their
individual pensions remain secret.
The same bill, which wouldn't affect access to information about the
legislature as a whole, also keeps the lid on taxpayer-financed retirement
plans of judges, prosecutors and law enforcement officers.
The provision was tucked inside a House bill late in the legislative
process and approved without the opportunity for public testimony. Now,
the proposal awaits action by Gov. Joe Kernan, who is still reviewing the
bill, said spokeswoman Tina Noel.
Story Link
INTERNATIONAL
HEPATITIS C RECORDS OPENED IN JAPAN: After years of stalling, the health ministry is being forced to release
the names of about 500 medical institutions that purchased a
blood-clotting agent linked to hepatitis C infections.
Ministry officials said the list would be released in April.
The move follows instructions from a Cabinet Office commission on
information disclosure. While such instructions are not strictly binding,
government ministries and agencies usually comply.
The blood product, called fibrinogen, was produced by Green Cross Corp. of
Osaka, now part of Mitsubishi Pharma Corp. In all, 7,004 medical
institutions purchased fibrinogen, but the list Mitsubishi Pharma has
submitted to the health ministry includes only about 500.
Ministry officials said they are not planning to ask Mitsubishi Pharma to
divulge the name of every institution that bought fibrinogen.
According to a study by Mitsubishi Pharma, about 300,000 people received
fibrinogen between 1980 and 1994. Records no longer exist for the period
before 1980. The company began supplying a safer blood product in 1994.
The commission concluded that ``while the interests of medical
institutions have to be considered, it's more important to protect the
life and health of the public.''
The commission has recommended releasing the names of medical institutions
that purchased fibrinogen from Green Cross before June 1988.
Story Link
IN INDIA, FOI OPENS FILES: Lal Singh Rawat, a thin, turbaned quarry worker, came to the meeting
clutching a yellow ration card. The card, given out by the government to
those living in absolute poverty, entitled him to buy low-priced wheat
every month under India's food security program. But for the past six
months, the government ration distributor had repeatedly turned Rawat
away, forcing him to buy wheat elsewhere, at a price he could not afford.
A man called Rawat's name. "Did you buy 77 pounds of wheat every month
from your local ration shop?" he asked.
"I did not," Rawat answered.
"But the register says you have been buying wheat every month," the man
said, pointing to a copy of the government food register, which he had
obtained under a state law that grants citizens access to government
files.
"How can the records say that? The ration shopkeeper in my village said
there was no wheat supply from the government for the last six months,"
Rawat said, as the crowd of about 600 villagers shouted, "No wheat, no
wheat!"
As ration shopkeepers tried in vain to disrupt the public hearing
convened by the Workers and Peasants Empowerment Organization, a
grass-roots advocacy group, the names of 30 more impoverished villagers
who had been cheated out of their wheat entitlements were read out.
But since Rajasthan adopted a state law three years ago guaranteeing
the right to information, villagers have opened previously inaccessible
government files on food supply, health programs and development projects,
exposing fraud and forgery.
Story Link
UK FOIA VICTORY: In a victory for freedom of information, the parliamentary ombudsman has
forced Tony Blair to reveal his pattern of meetings with commercial
lobbyists. This has been a fiercely preserved Downing Street secret, which
critics argue has long tainted democratic government in Britain.
Ann Abraham, the ombudsman, has found No 10 guilty of unjustifiably
keeping secret contacts between ministers and commercial companies who are
seeking to influence them. Her ruling follows separate complaints from the
Guardian and the Liberal Democrats.
As a result of the verdict, Downing Street has been compelled to admit
that a Labour donor met the prime minister at a sensitive time when he was
seeking to win a lucrative contract from the government.
Dr Paul Drayson, who donated £100,000 to Labour, provoked controversy
when the government awarded his company PowderJect, without any
competition, a £32m contract to produce smallpox vaccine.
Story Link
BIG WIN IN UK: The Guardian won a landmark victory in its campaign for freedom of
information after the government admitted it had been wrong to impose a
blanket gagging order on the parliamentary ombudsman preventing disclosure
of information requested by the paper.
Two journalists at the newspaper, Rob Evans and David Hencke, have
campaigned for more than two years to obtain the release of facts about
conflicts between minister's personal and government interests.
In February 2001 Evans wrote to 17 government departments to exercise his
right under the government's so-called open access code to obtain factual
information about the occasions on which Labour ministers' private
interests and connections have clashed with their jobs.
Following months of protracted correspondence, all departments except for
the Department for International Development sent identical replies
declining his request and citing exemptions on grounds of privacy.
Now, on the eve of a a potentially embarrassing high court hearing in
which the newspaper was seeking a judicial review of the order by Lord
Falconer, the secretary of state for constitutional affairs, the courts
have ruled that the blanket secrecy was unjustified.
Story Link
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
The Grand Rapids Press on a bad cops bill: "A bill in the Legislature meant to protect those with shields would
only shield the people who deserve protection the least. The measure has
the clear potential to keep bad cops from being discovered. Lawmakers
ought to reject it. If they don't, the governor should veto the
legislation.
Under the bill, statements made in internal investigations would no longer
be subject to the state's Freedom of Information Act?
Current public access to internal investigation records serves as an
important check on the substantial authority granted police agencies. We
entrust police officers, State Police troopers, sheriff's deputies and
others to use deadly force when circumstances require it. That
extraordinary power merits a solid balance of accountability."
Story Link
Asahi Shinbun on a huge FOI case in Japan: "Shizuoka prefectural police have issued a public apology for defrauding
taxpayers by misappropriating money for business trips never taken, among
other false claims. While similar cases of suspected police embezzlement
have also come to light in Hokkaido and other areas, this is likely the
first time police in Japan have owned up to cooking their books with
fictitious business trips.
The police in Shizuoka, however, did not voluntarily acknowledge the
misdeed. A resident spent more than seven and a half years pursuing the
police through the prefecture's information-disclosure regulations. The
admission was the result of long and sustained effort?
There has often been talk about police slush funds in the past. However,
this is the first time the NPA is displaying the necessary mettle to
resolve the issue.
Police must take to heart that they can no longer hide behind the excuse
of ``investigative confidentiality.''
Story Link
The Battle Creek Enquirer on efforts to exempt police investigations: "Law enforcement officers have greater power than the average citizen for
a very important reason: To help keep us safe. That is why they have the
right to make traffic stops, arrest people and investigate situations that
they find suspicious.
Such power is not unfettered, however. If an officer of the law is
suspected of wrongdoing, an internal affairs investigation can be
instigated by his or her employer to determine the facts. Much of the
information gathered in such investigations is available to the public
under the Freedom Of Information Act (FOIA).
But a proposed law currently before the Legislature would limit public
access to internal investigation records, thus reducing public
accountability?"
Story Link
Charles Lewis of the Center for Public Integrity on secrecy: A few days ago, the Center for Public Integrity obtained a copy of draft
legislation that the Bush Administration has quietly prepared as a bold,
comprehensive sequel to the USA Patriot Act. This proposed law would give
the government breathtaking new powers to further increase domestic
intelligence-gathering, surveillance and law enforcement prerogatives, and
simultaneously decrease judicial review and public access to information.
We took the unprecedented (for us) step of posting the entire bill on our Web site.
Why? Because democracy is supposed to be a contact
sport, with many and diverse participants, and we quickly discovered that
practically no one on Capitol Hill in either party or in the national news
media had ever even heard of the Domestic Security Enhancement Act of
2003, much less read it. Senate inquiries about the likelihood of "Patriot
II" legislation have been publicly and privately rebuffed for months,
dozens of specific written questions to the Justice Department about
implementation of the first Patriot Act simply never answered.
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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