The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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July 29, 2011 1:09 PM

from Government in the Lab:

Last month, we wrote about how the state of Illinois was erecting barriers to such knowledge by passing House Bill 1716. Sponsored by both House and Senate representatives, HB 1716 is an amendment bill to the Illinois Freedom of Information Act (FOIA) which will require people who request information to pay for the actual cost of retrieving public records.

Several watchdog groups, including For the Good of Illinois, are concerned that the bill labels citizens who request information more than 50 times a year as “recurrent requestors”. This label jeopardizes their chances of actually getting the information they request, because once someone has been labeled, the government may delay fulfilling the request for up to one year!

The Citizen Advocacy Center (CAC), another vocal transparency organization in Illinois, has rallied Illinoisans asked Governor Quinn to reject HB 1716. Last week, the group met with the Governor’s legislative staff last week to express their concern about the bill. CAC has a history of fighting for the freedom of popular information: in 2009, CAC worked with the Attorney General’s Office to reform Illinois’ FOIA — turning it from one of the country’s worst FOI laws into one of the strongest.

Visit Government in the Lab for the rest of the story.

July 29, 2011 1:00 PM

from Federation of American Scientists:

“Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture,” the American Civil Liberties Union urged in a new report on government secrecy.

“The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could,” wrote Mike German and Jay Stanley, the authors of the ACLU report. “It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls.”

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience. Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more. It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

Visit FAS for the rest of the story.

July 29, 2011 12:56 PM

from Government Security News:

A bill introduced on July 26 by Senate Homeland Security Committee Chairman Joe Lieberman (I-CT), ranking committee member Sen. Susan Collins (R-ME) and Sen. Tom Coburn (R-OK) would make Congressional reports available so the public could monitor how tax dollars are being spent.

The Congressionally Mandated Reports Act, S.1411 covers thousands of statutorily-required reports submitted each year to Congress so it can monitor agency implementation of various laws, ranging from homeland security to food safety to environmental protection, said a joint statement on July 26 by Lieberman and Collins.

Under the legislation, the Government Printing Office (GPO) would establish a website that would publish all reports within 30 days of being submitted to Congress, they said. The reports would have to be searchable by text, key words, agencies writing the reports, and Congressional committees receiving the reports.

Visit Government Security News for the rest of the story.

July 29, 2011 12:48 PM

from EastBayRI.com:

The public has an opportunity to learn about the state’s Access to Public Records Act and Open Meetings Act by attending the annual Open Government Summit or watching it live on the web.

Hosted by R.I. Attorney General Peter Kilmartin, the summit takes place Friday, Aug. 5, from 9 a.m. to 12:30 p.m. at Roger Williams University, 1 Old Ferry Road, in the School of Law building.

The summit includes remarks from Mr. Kilmartin and an explanation of the Access to Public Records Act and Open Meetings Act, the most recent case law, legislative updates, and examples of areas of the laws that people have difficulty interpreting. The R.I. Ethics Commission will give a presentation in identifying and avoiding areas of conflicts of interest and guidelines for filling out financial disclosure forms. NBC news anchor Alison Bologna will give the media’s perspective on expectations for public bodies when requesting public information.

The summit is free; but, registration is required through the attorney general’s office at 274-4400, ext. 2101, or agsummit@riag.ri.gov. Check-in is from 8:30 to 9 a.m.

Visit EastBayRI.com for the rest of the story.

July 26, 2011 1:35 PM

from New England First Amendment Coalition:

PROVIDENCE, R.I. - Twenty-five New England journalists will be selected to study FOI law and investigative reporting techniques at the inaugural First Amendment Institute in Dedham, Mass., this fall.

Fellows taking part in the three-day curriculum presented by the New England First Amendment Coalition and Northeastern University's Initiative for Investigative Reporting will work with a faculty that includes six Pulitzer Prize winners and prominent media law and First Amendment attorneys.

"The goal of the Institute is to train journalists as FOI advocates, equipped with the tools needed to bring to light issues of public importance," said Mary Jane Wilkinson, NEFAC vice president. "When they return to their news organizations, they will be prepared to take leadership roles in monitoring transparency in government."

Applications will be accepted until Sept. 15 from journalists at all career levels with a demonstrated interest in investigative work and right-to-know issues, and successful applicants will be notified by Oct. 15. Application documents are available below.

"There are too few full-time investigative reporters. But reporters who are familiar with investigative reporting tools and public access laws are invaluable in any newsroom," said Walter V. Robinson, longtime editor of The Boston Globe's Spotlight Team and a Pulitzer winner in 2003 for exposing the priest sex scandal that continues to roil the Roman Catholic Church.

The workshops will take place at the New England Newspaper and Press Association's headquarters in Dedham on Nov. 13 - 15.

Roseanna Cavanagh, NEFAC's executive director, said the program is supported by a grant from the McLean Contributorship on behalf of The Telegraph of Nashua, N.H.

"We are so grateful to McLean and The Telegraph that we are able to bring this institute to life," Cavanagh said, "and we could not be more excited about the Institute's faculty and curriculum."

Visit NEFAC events page for more information and registration.

July 26, 2011 1:19 PM

from New Mexico Foundation for Open Government:

It’s your government, it’s your money, and you have a right to know.

That's why NM-FOG has fought for 21 years to guarantee that you and your fellow New Mexicans can find out what your government is doing – regardless of who’s in power. We speak up for the public’s right to know in the state legislature, in court and in town halls and county chambers from Farmington to Las Cruces.

If you believe in open government, please join us on September 28 and show your support! This annual gathering of open-government advocates is your chance to celebrate recent successes, recognize local open-government champions and contribute to NM-FOG's year-round educational programs, advocacy and pro bono legal work.

Together, we can open up New Mexico. Join us!

Please note: If you'd like your organization to be associated with open, accountable government in New Mexico, please call (505) 764-3750 or e-mail info@nmfog.org to inquire about sponsorships. You can also purchase sponsorships ranging from $1,000 to $4,000 by following the registration link from the events page below.

Visit NM-FOG events page for more information and registration.

July 25, 2011 12:56 PM

Thanks to persistence and a lawsuit by a contributor to The West Virginia Record, a weekly legal journal and website, details of Cabell County’s largest lawsuit settlement ever are now known to the public.

County officials agreed in September 2008 to pay $3.6 million to the family of a pregnant Huntington woman, who emergency personnel were dispatched to assist after an epileptic seizure. But those county officials spent years trying to keep secret the details of the lawsuit that stemmed from the woman’s death before she reached the hospital and the death, the following day, of her baby.

Record contributor Lawrence Smith first asked for records detailing the incident and settlement in 2009, and filed suit under the state Freedom of Information Act in January 2010.

Records related to the case had been sealed by court order and a confidentiality agreement. But The Record prevailed in its years-long quest for disclosure thanks in large part to an open government battle fought 2 1/2 decades ago by another newspaper, The Charleston Gazette.

The state Supreme Court ruled in 1986 that documents in any lawsuit settlement involving a government agency are public records.

The favorable outcomes for governmental transparency, 25 years apart, are illustrative reminders of the dual benefits of advocacy and aggressive rights’ assertion under open government laws: a better informed public, and often a better, more-level playing field for future open government disputes.

See EMS suit settled and 1986 ruling opened access to lawsuit settlements.

Ken Bunting
Executive Director, NFOIC

July 20, 2011 12:06 PM

COLUMBIA, Mo. (July 20, 2011) – A Wisconsin village’s abrupt dismissal of its administrator, still unexplained to the public two months since the action was taken in a closed-door meeting of the Village Board and a month since the administrator died of a heart attack, is the focus of a Knight FOI Fund grant announced Wednesday by the National Freedom of Information Coalition (NFOIC).

The NFOIC announced the grant in support of The Journal Times newspaper of Racine, WI, which brought a lawsuit against the Village of Mount Pleasant on June 15. The newspaper’s lawsuit, in Racine County Circuit Court, contends that Village officials violated the state's open government laws by their manner of noticing and convening a hastily-called executive session during a May 9 meeting of the Village Board, and in denying the newspaper a copy of a letter that presumably prompted the sudden dismissal of the former Village Administrator Mike Andreason.

Christa Westerberg, a Madison-based attorney representing the newspaper, said that while Wisconsin law permits the withholding of records related to personnel issues in some instances, the city effectively waived any potential exemption it could legally claim by not stating a specific reason for its refusal to disclose the requested record. Indeed, Village officials’ first two written responses to Journal Times reporter Mike Moore’s request for the letter, which was mentioned on the agenda item, cited no specific statute section at all: One official response stated that the letter had not been addressed or filed with that particular office, and another offered the vague justification that the decision to deny the request “fits within several exceptions to the Open Records Law regarding disclosure.”

Read the rest here.

July 19, 2011 2:57 PM

from amNewYork:

The public’s “right to know” has become the public’s right to wait — and in some cases, getting information from government agencies is a process that can drag on for months without a reliable response.

New York’s Freedom of Information Law (FOIL) guarantees citizens access to government documents, but an amNewYork survey of the nearly four-decade-old law found city agencies failing to reply in a timely manner and even ignoring requests outright.

Unions, advocacy groups and journalists told amNewYork they’re frustrated by how time-consuming and challenging getting information can be under the Bloomberg administration.

The New York Times was so fed up that, in December, it sued the NYPD for what it called “a pattern and practice of violating FOIL.”

“The irony is that when Michael Bloomberg ran for mayor in 2001, he promised more transparency for the police department than existed under [former Mayor] Rudy Giuliani, who was notorious for refusing to provide information to the public,” said Leonard Levitt, author of “NYPD Confidential: Power and Corruption in the Country’s Greatest Police Force.”

“Under [Police Commissioner] Ray Kelly, it is worse,” Levitt added.

Other groups say they’ve been stonewalled when asking for public records.

[...]

The public should be alarmed when information from the government is not easily accessible, said Kenneth Bunting, executive director of the National Freedom of Information Coalition.

“As a taxpayer citizen of the state of New York, you’re simply asking for your own records. They don’t own it — you do,” Bunting said.

He added that New York’s FOIL should “have more teeth” to compel government agencies to abide by requests within a stated deadline.

Visit amNewYork for the rest of the story.

July 18, 2011 3:07 PM

COLUMBIA, Mo. (July 18, 2011) – The Knight FOI Fund, a legal war chest administered by the National Freedom of Information Coalition (NFOIC), has awarded a $5,000 grant to support a Florida lawsuit that could invalidate a March 2011 ballot referendum in St. Pete Beach on the grounds that the city commission made improper, closed-door decisions authorizing the citywide vote.

Attorney Kenneth Weiss of Treasure Island, FL said he would file a lawsuit on behalf of St. Pete Beach resident Jim Anderson contending that the city made decisions authorizing the vote in illegal secret meetings in November 2010 and January 2011.

Weiss said the city has begun a practice of using so-called “shade meetings” to decide all kinds of controversial issues.

“The City has institutionalized the use of shade meetings to discuss and decide controversial issues, particularly about the city’s future development. This was done to prevent voters from learning about how and why those decisions were made, leaving the citizens in the dark,” Weiss said.

In announcing the grant, Kenneth Bunting, NFOIC’s executive director, said, “NFOIC doesn't have a stake in a Florida development squabble. But when a city government tries to use the emotions surrounding such an issue to expand how much public business it can conduct behind closed doors, it gets our attention.”

Voters approved the charter revision with 53 percent of the vote. The change to the charter allows the city commission to make decisions on development height limits without voter approval—a voter-held authority citizens had given themselves in a separate vote in 2006 over the size of future hotels and other developments in the beach community.

Weiss said the new lawsuit would show that the election should be invalidated because the commission violated the Florida Sunshine Law with the decisions it made in closed meetings. He said the city of St. Pete Beach has been using an expansive interpretation of state law that allows them to use shade meetings for “whatever they want to discuss.” Weiss also contends that the ballot language was deceptive and improperly framed.

Florida’s Sunshine Law allows officials to discuss a lawsuit, legal strategy or settlement negotiations in closed-door meetings. But the exception does not allow decisions to be made in those meetings.

City officials will likely contend that they have properly “cured” any potential violation of the Sunshine Law by discussing at a public meeting and taking official action on what transpired at the closed-door sessions. The cure doctrine is a controversial, judicially-created interpretation that has raised alarm with open government advocates.

“The access community has always been concerned with the cure doctrine because of the possibility of abuse,” said Jim Rhea, director and general counsel for the First Amendment Foundation, a Tallahassee, FL-based NFOIC organization that strongly endorsed the grant award.

Weiss previously filed a Sunshine Law suit to gain access to transcripts of previous “shade meetings” and is currently appealing the trial court’s ruling that no decisions were made in the shade meetings. However, Weiss contends that subsequent secret meetings included even more violations, and this new lawsuit is about those meetings.

The Knight FOI Fund grant, in the amount of $5,000, was announced by the National Freedom of Information Coalition, which administers the Fund that was created by the John S. and James L. Knight Foundation.

The Knight FOI Fund award was made to defray the legal costs Weiss will incur in his challenge of the city’s shade-meeting practices. Bunting and Rhea said the civic debate over the development issues are not the main concerns as far as their organizations are concerned.

“We would not expend Knight FOI Fund resources to stop a beachfront hotel, to enter the civic debate over who pays for the infrastructure surrounding it, or take a stance on how tall new developments can be,” Bunting said. “But we think those bringing this challenge make a very good argument that the city is stretching the so-called 'shade' exception beyond what current law or good government common sense now allows."

See a PDF of the release here (100 KB).

July 15, 2011 2:43 PM

It is well under the radar, but another important open government case may be making its way to the U.S. Supreme Court.

If the justices of the Court decide to take it, the case will center on whether records that were indisputably public during court proceedings can be withheld under a tortured interpretation of an investigative and privacy exemption once the court matters are over.

As ridiculous as that sounds when framed that way, that is precisely the stance the U.S. attorney’s office in Colorado and the Justice Department took. And, surprisingly, the Tenth Circuit Court of Appeals sided with them and upheld their withholding of videos and photos used and shown in open court during two trials stemming from a 1999 federal prison murder.

The video, which the government made no attempt to seal or shroud from view during the trials, showed a brutal slaying at the U.S. penitentiary in Florence, Colorado, in which two inmates murdered and mutilated a cellmate.

Prison Legal News (PLN), a scrappy monthly legal journal and news Web site that reports on prisoner rights, overcrowding and safety issues, was denied in its request for copies of the video and autopsy photos. The two inmates who were convicted of the murder were tried separately, and one of the two trials even took place after the magazine had submitted its request for the video under the Freedom of Information Act (FOIA).

The Tenth Circuit Court of Appeals ruled in January, and affirmed on rehearing in March, that the Justice Department was entitled to withhold the gruesome video on grounds that its release amounted to an unwarranted invasion of privacy.

But PLN’s attorneys and their media and open government allies contend that, under the “public domain doctrine,” records that were public in two trials cannot summarily become non-public once the trial is over. That would mirror, they say, what the federal appeals court in the District of Columbia said in a similar case in 1999 and what the Second Circuit said 2006. In fact, they say, it is well-established law that dates back at least 36 years, when the Supreme Court said in Cox Broadcasting v. Cohn, “What transpires in a public courtroom is public property.”

It is anyone’s guess whether the Supreme Court will decide to take this case. But since two other federal judicial circuits have echoed the Cox principle, seeing similar cases differently than the Tenth Circuit did, there is at least a decent chance that they will.

So far, those involved in the case do not include heavy hitters like the New York Times, the Associated Press, CNN, Hearst, ABC or other media or industry giants who are almost always among appellants or amici when important open government cases make their way to the High Court. For reasons that probably have more to do with strategy than ego, those print and broadcast giants, and the industry associations and advocacy groups who often ally with them, like to pick the cases that go up for review.

But PLN, which is no stranger to open government legal battles, could well be on its way to a Supreme Court hearing on this. Should the Supreme Court decide to take the case, it is a good bet PLN will find support from big media companies, industry associations and open government groups on the principle involved, even if they wish it was a less emotional, less controversial set of facts bringing the matter up for review.

Stay tuned.

Ken Bunting
Executive Director, NFOIC


 

July 15, 2011 11:59 AM

From OMB Watch's new executive director, Katherine McFate:

I am proud to take the helm of this important organization. That OMB Watch is so widely respected for its timely, accurate policy analysis and outstanding record of public interest advocacy is a testament to the values, expertise, and commitment of founder Gary Bass. Thanks to Gary, I have inherited a talented staff; an engaged, supportive Board; and an organization with openness, collegiality, and hard work hard-wired into its culture. Gary has been incredibly generous with his time and wisdom during this transition and I am deeply grateful. He'll always be the "wise head" of the OMB Watch family.

As OMB Watch enters a new era, we will continue to be driven by the belief that a well-functioning democracy and effective, accountable government demand an informed, engaged citizenry. OMB Watch will remain at the forefront of efforts to protect the hard-won air quality, water purity, food safety, and workplace standards that have safeguarded American families and communities for decades. We will work to ensure that information on the flow of public monies, the activities of public servants, and the performance of public investments is broadly available and accessible to all. We will defend critical public programs and build coalitions to protect current revenue streams and to create new ones.

Visit OMB Watch for the rest of the story.

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