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The FOI Advocate
Back to The FOI Advocate Index
May 5, 2004
The E-Newsletter of the National Freedom of Information Coalition
"A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity
and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty."
-- 110 Congressional Record 17, 087 (1964) (Statement of Senator Long)
A Publication of The Freedom of Information Center
A Unit of the Missouri School of Journalism
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers
to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
-- Justice Louis Brandeis, 1928
TOP OF THE NEWS
"Sometimes, of course, there are legitimate reasons, such as security, for
the White House's secrecy. Other times, such a reason is elusive. In April
2002, for example, the Orlando Sentinel reported that the Apopka Little
League team of 11- and 12-year-olds would visit the White House on May 5
to watch a T-ball game. The source: the team manager and parents.
'The White House would not confirm the invitation,' the paper reported. "
-- The Washington Post's Dana Milbank in an uproarious Washington notebook
column on White House secrecy.
PRIVACY FOR COFFINS: The Pentagon lost its tight control over the images of coffins returning
from Iraq as about 350 such images were released under the Freedom of
Information Act and a Seattle newspaper published a similar photo taken by
a military contractor.
With few exceptions, the DOD ban on funereal images had remained in force
until recent days. But last week, about 350 photos from Dover were
released under a Freedom of Information Act request by Russ Kick, a First
Amendment advocate who runs a Web site called the Memory Hole. Dover
recommended that Kick's request be denied, but officials at Air Mobility
Command headquarters at Scott Air Force Base in Illinois authorized the
release on appeal. After Kick posted the photos, they appeared on other
Web sites, including the Drudge Report.
Story Link
http://www.thememoryhole.org
FIRED FOR TAKING A PHOTO: The firing of military contractor Tami Silicio, whose photograph of
flag-draped coffins of American soldiers killed in Iraq was published by
The Seattle Times, was met with negative reaction from the newspaper.
Still, the Times stands by its decision to run the controversial image --
and claims that Silicio knew the risks.
"I'm happy the picture is out, but it broke my heart when I find out she
lost her job," said Barry Fitzsimmons, the paper's photo editor. "The
Times is very sad that Tami [was fired]."
Story Link
...and much, much more on the privacy rights of the armed forces:
http://www.nytimes.com/2004/04/23/national/23PHOT.html
http://www.newsday.com/news/nationworld/world/ny-wocoff193764197apr19,0,1256808.story
http://seattletimes.nwsource.com/html/localnews/2001910577_family23m.html
http://media.guardian.co.uk/site/story/0,14173,1201807,00.html?=ticker
SUPREMES HEAR ENERGY TASK FORCE CASE: The Bush administration's effort before the Supreme Court to shield the
names of private citizens who helped devise its energy policy might appear
on the surface unrelated to its defense, in cases also before the court,
of the detention of those the administration has classified as enemy
combatants. But the legal arguments are strikingly similar, projecting a
vision of presidential power in both war and peace as far-reaching as any
the court has seen and posing important questions of the constitutional
separation of powers.
Just as the administration is arguing in the detainee cases for the
exercise of presidential authority without judicial interference in
policies related to the war on terrorism, it is making sweeping claims in
the energy case for the existence of a constitutionally protected "zone of
autonomy" for presidential advice received in the ordinary course of
proposing legislation.
Story Link 1
Story Link 2
Oral transcripts at:
http://play.rbn.com/?url=ap/nynyt/g2demand/ap-scotus.rm&proto=rtsp&mode=compact
DID ANYONE SAY ENERGY TASK FORCE? The executive director of Vice President Dick Cheney's energy task force,
whose closed-door meetings with industry executives enraged
environmentalists and prompted a Supreme Court showdown this week, became
an energy lobbyist just months after leaving the White House, records
show.
Andrew Lundquist, a native Alaskan who worked on Capitol Hill for both his
state's senators, shepherded the development of the administration's
energy policy as executive director of the National Energy Policy
Development Group, a Cabinet-level task force chosen by President Bush and
headed by Cheney.
Story Link
PRISON TORTURE PHOTOS RAISE CLASSIFICATION ISSUES: According to Secrecy News, by classifying an explosive report on the
torture of Iraqi prisoners as "Secret," the Pentagon may have violated official secrecy
policies, which prohibit the use of classification to conceal illegal
activities. The report, authored by Maj. Gen. Antonio Taguba, found that
"between October and December 2003, at the Abu Ghraib Confinement
Facility, numerous incidents of sadistic, blatant, and wanton criminal
abuses were inflicted on several detainees."
"The allegations of abuse were substantiated by detailed witness
statements and the discovery of extremely graphic photographic
evidence," Gen. Taguba wrote.
These specific observations, and the report as a whole, were classified
"Secret / No Foreign Dissemination."
But the classification may have been more than simply unnecessary. It
might have been a violation of official policy, which forbids
the use of secrecy to cover up crimes:
"In no case shall information be classified in order to ...conceal
violations of law, inefficiency, or administrative error
[or to] prevent embarrassment to a person, organization, or agency...,"
according to Section 1.7 of Executive Order 12958, as
amended by President Bush (EO 13292):
Story Link
The report on torture at Abu Ghraib prison is apparently still classified.
But it is now widely available on the internet, including here:
http://www.globalsecurity.org/intell/library/reports/2004/800-mp-bde.htm
http://www.fas.org/sgp/news/2004/05/dod050404.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.
ASNE DEBATE OVER FOIA TURNS TO PATRIOT ACT: Billed as a discussion of Freedom of Information Act issues, a session
Thursday at the American Society of Newspapers Editors annual conference
turned into a debate over the Patriot Act and its effect on public access
to information.
During the hour-long talk before several hundred members of ASNE and the
Newspaper Association of America -- which are holding their annual
meetings jointly -- Sen. Patrick Leahy (D-Vt.) and Sen. Orrin Hatch
(R-Utah) squared off over the difficulty of balancing FOI with the
post-Sept. 11 need to prevent terrorism.
During the discussion, led by Doug Clifton, editor of The Plain Dealer in
Cleveland, and Burl Osborne, Associated Press chairman, the senators were
asked how to ensure government accountability under the Patriot Act,
drawing sharply different reactions.
"We have to have a balance," Hatch said. "But sometimes we overbalance it
where we don't worry enough about law enforcement." Leahy disagreed,
stating "you should question the powers you are giving them."
Hatch agreed with Patriot Act opponents on one front, declaring that more
classified information in Washington should be made available. "I have
always felt that we classify too many things," he said. "We have lots of
ways of finding out what is going on out there, and a lot of leaks going
on in this town."
Leahy urged local papers to keep up the tradition of digging up
information from government sources and pressuring official entities for
access.
Story Link
HOMELAND SECURITY NOT SO BAD AFTER ALL? The fears of some that the newly created Department of Homeland Security
would become a black hole into which public information would disappear
seem so far to be unfounded, according to a recent computer-assisted
investigation. But whether the glass is half-empty or half-full is a
matter of opinion.
An article published April 25, 2004, in the Dallas Morning News by reporter Jennifer LaFleur (formerly a guru at the National Institute
of Computer-Assisted Reporting), was based on the Department's required
annual FOIA report for the period through Sept. 30, 2003, the end of the
fiscal year.
LaFleur wrote that DHS "comes off pretty good," in its report, "granting
almost half during its first eight months of existence."
"When it did withhold information," her article states, "the department
cited privacy most often. National security reasons were cited in less
than 1 percent of cases, according to the department's first Freedom of
Information Act Annual Report."
"Of the 161,000 requests DHS received in fiscal year 2003, it fully
granted 47 percent; it partially granted 40 percent, and it denied 1
percent of all requests," she reported. "In about 10 percent of the cases,
it said the records didn't exist."
About 9/10 of the information requests were immigration-related.
"Critical infrastructure information," the category where public access
has been most controversial, was not counted in fiscal 2003, because
regulations for handling it were not yet in place.
Story Link
GENERAL FOI NEWS
ARE THINGS MORE TRANSPARENT AT THE KREMLIN? Americans seeking to know what President Bush said in his phone
conversation with Russian President Vladimir Putin earlier this month went
to the obvious place: the Kremlin. "The presidents exchanged ideas on the
situations in the crisis areas of the world: Iraq, Kosovo, Afghanistan,
etc.," the Russian government said in a statement carried by the Interfax
news agency. "They expressed serious concerns about the lack of progress
in the settlement of regional problems and the escalation of the situation
in these areas."
And what did the White House have to say about this conversation between
the world leaders? Not a thing. "White House officials would reveal no
details of the conversation," the Associated Press reported.
Story Link
FOI AT WORK (IN ACADEME!): Only about half the meat and poultry recalled in the United States
because of suspected health hazards between 1998 and 2002 was actually
recovered by the manufacturers, according to a new study.
This and other results suggest new federal food safety regulations that
took effect in the late 1990s have not done enough to ensure the safety of
our food supply, said Neal Hooker, co-author of the study and assistant
professor of agricultural, environmental and development economics at Ohio
State University.
Hooker and Teratanavat collected recall information from the federal Food
Safety and Inspection Service and other sources, using the Freedom of
Information Act in some cases to gather data. They compared information
about the class of the recalls (from Class I, the most serious, to Class
III), as well as the type of hazard -- biological, physical or chemical.
They also considered whether the product came from a large, small or very
small plant.
Story Link
WHAT? EH? CAN'T QUITE HEAR YA: New models of four-stroke snowmobiles -- touted as "quieter" by the Bush
Administration and supposedly suitable for use in the winter stillness of
Yellowstone National Park -- are in fact nearly as noisy as the old
two-stroke machines. The snowmobiles also are loud enough to damage
hearing, according to internal Administration documents obtained, and
released today, by the Coalition of Concerned National Park Service
Retirees, a group of 230 retired employees and senior leaders of the
National Park Service.
According to a January 27, 2004, Yellowstone staff meeting report
(available at http://www.hastingsgroup.com/yellowstonestaff.pdf), Yellowstone officials tested noise from four-stroke snowmobiles that were
certified as "best available technology" and approved for use in
Yellowstone under the Interior Department's controversial policy. The
minutes from the January meeting at Yellowstone show the park's safety
officer informing other senior staff that based on the tests of
four-stroke snowmobiles: "Four-stroke snowmobiles are almost as loud as
two-stroke snowmobiles for the operator."
The four-stroke snowmobile test results, finalized in a so-far-unreleased
March study conducted for the National Park Service, show that 18 out of
20 snowmobile tests generated peak noise levels in excess of 100 decibels,
far over Yellowstone's new snowmobile noise standard, which promised to
reduce snowmobile noise "at full throttle to no more than 73 decibels."
The National Park Service promptly cautioned employees riding the machines
to wear earplugs. However, visitors to the Park who are also riding these
machines have not received any such warning.
Story Link
IN THE STATES
IMPEACHMENT EXEMPTION TO BECOME LAW: Connecticut Gov. John G. Rowland apparently will let the bill exempting
the legislature's impeachment inquiry from the Freedom of Information Act
become law without his signature. Rowland's chief of staff, Dean C. Pagan,
said the governor still believes all aspects of the inquiry should be
open. But he also concedes it's likely that any veto would be overriden by
the House and Senate.
But even with the measure poised to become law automatically after
midnight Tuesday, another sticky legal still remains: What happens to the
freedom-of-information complaint Rowland filed last week?
"Obviously his lawyers have been arguing for an open process," Pagani
said today. "But he feels a veto would just delay the inevitable."
The House voted 128-15 and the Senate 34-1 last Wednesday to adopt the
measure, which exempts the House Select Committee of Inquiry from the
right-to-know law until it finishes its report.
Story Link
AT AMERICA'S UNIVERSITIES, A SECRET SYSTEM OF JUSTICE: Boise State's student code of conduct program provides the university
with an in-house disciplinary proceeding that is able to quickly deal with
conduct violations quietly. However, the secrecy surrounding the hearings,
which closely follow national models in use at many universities, often
draws fire from critics who argue that the process should be transparent
to the campus community.
Administrators state that the proceedings need to be closed in order to
avoid violating student privacy rights mandated by the Federal Educational
Rights and Privacy Act, though the Clery Act permits universities to
release the names of responsible parties and sanctions imposed in cases of
violent crime. BSU currently doesn't provide that information, however.
The Arbiter obtained records from October 1998 to present after filing a
request under Idaho's Open Records Law. According to the records released
by the university, 17 students have been found responsible for various
assaults, and one was found responsible for committing an unspecified sex
offense. The sanctions ranged from conduct probation to permanent
expulsion from Boise State.
Story Link
TEACHER DISCIPLINARY RECORDS OPENED: Connecticut's state Appellate Court has ruled that the disciplinary
records of teachers should be open to public inspection.
The decision, written by Judge Antoinette Dupont, upheld earlier rulings
of the Superior Court and the Freedom of Information Commission.
The Journal Inquirer of Manchester sought the records involving the
two-week suspension and reprimand of Tolland High School teacher James
Wiese. He was disciplined after showing students a British documentary
that school officials decided was not appropriate to the age of his
students.
Wiese objected to the newspaper's request, so the Tolland school
superintendent and the school board refused to release the records.
Freedom of Information Commission hearing officer Colleen M. Murphy ruled
in August 2002 that the records should be public.
Story Link
IF IT LOOKS LIKE A DUCK: University of Nebraska officials are defending meeting at a Kansas City
hotel with candidates for the school's presidency.
University spokesman Joe Rowson said Thursday that such social meetings
are a common part of the university's hiring process.
"I think that everybody knows you can look good on paper ... and you may
not be suitable for the position that's open," Rowson said.
The Lincoln Journal Star reported Thursday that the committee searching
for the next school president had scheduled the Kansas City meetings and
that the sessions might violate state law.
According to Nebraska law, the names of finalists for the position must be
identified once a candidate accepts an interview.
Story Link
WRESTLING WITH E-MAIL, VOICE MAIL: The public would have access to officials' e-mail and voice messages on
a case-by-case basis rather than rely on a broad state policy, according
to a recommendation by the staff of the state Freedom of Information
Commission.
The recommendation, reported by the Record-Journal of Meriden in editions
prepared for Friday, follows six years of study.
E-mail and voice messages relating to public business are public records,
subject to the Freedom of Information Act's requirements and exceptions,
according to the FOI Commission, said Mitchell W. Pearlman, the panel's
executive director and general counsel.
E-mails and voice messages are now subject to the same requirements for
disclosure and exemptions as other public records, he said.
If adopted, the proposed ruling would require a number of e-mails and
voice messages to be kept for a limited time or permanently, depending on
the guidelines of the state public records administrator at the state
library.
The state Senate unanimously passed legislation last month to exempt voice
messages from the FOI Act. Sen. Andrew Roraback, R-Goshen, the bill's
author, said the draft ruling would require public officials or family
members to write down phone messages left on home answering machines word
for word.
Pearlman disputes that view, saying the draft policy does not require
verbatim transcription of phone messages or the purchase of expensive
equipment for recording and storing such communications.
Story Link
LEGISLATIVE UPDATE
WISCONSIN GUV VETOES UTILITY EXEMPTION: Gov. Jim Doyle vetoed legislation yesterday that would have exempted
utilities' security systems from the state's open-records law.
The open-records law includes a balancing test in which record holders
weigh the right to review a record with the public's interest in keeping
it private.
Doyle wrote in his veto message to lawmakers that the balancing test was
adequate to ensure that sensitive security documents are protected from
public view.
The bill, SB 8, would have made security-system records off-limits from
public view under any circumstances. It defined a security-system record
as any document concerning the physical or electronic security of the
facilities or information technology systems owned or operated by a
utility.
Story Link 1
Story Link 2
INTERNATIONAL DEVELOPMENTS
LATIN AMERICAN FOI MAKES PROGRESS: The Dominican Republic and Ecuador made significant advances toward
approving public information access laws this week, the newspapers Diario
Libre and El Universo reported. But in Argentina, a similar measure
awaited review by the Senate, Clarín reported.
In the Dominican Republic, the Senate unanimously approved the proposed
Public Access to Information Bill on April 13. After the bill passes
Senate revision it will be sent to the Chamber of Deputies for debate,
according to Diario Libre.
In Ecuador, Congress approved six of the 25 articles in the Transparency
and Access to Information Bill, and three other articles the week before,
according to El Universo.
Story Link
NIGERIANS PUSH FOR FOI: Media for Democracy, a coalition of Nigerian press freedom advocates
which includes the Independent
Journalism Centre (IJC), used the occasion of World Press Freedom Day to
reiterate the need for a Freedom of Information law in the country.
In a statement issued by IJC, the International Press Centre, Media Rights
Agenda and Journalists for Democratic Rights, the coalition said
legislation that gives citizens the right to access government information
is essential for a participatory democracy. Quoting a report by the U.N.
Special Rapporteur on Free Expression, they said "The right to seek or
access information is one of the most essential elements of freedom of
expression. Freedom will be bereft of all effectiveness if
the people have no access to information."
As Nigeria's parliament considers a draft Freedom of Information Bill,
Media for Democracy has been stepping up its efforts to drum up support
for the legislation. The coalition has met with various government leaders
and worked with civil society groups to engage them in the legislative
process.
Story Link
ON THE OP-ED PAGES: WHAT SOME ARE SAYING ABOUT OPEN GOVERNMENT
LOTS and lots of opining about the Dover war dead:
http://www.mediachannel.org/views/dissector/affalert186.shtml
http://seattlepi.nwsource.com/opinion/170563_coffinsed.html
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/04/27/should_photos_of_soldiers_coffins_be_on_the_news/
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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