The Headlines
FOI Alert
President Signs Order Aimed at Improving FOIA Operation
President Bush signed an executive order the White House said is intended to improve the operation of the Freedom of Information Act and help the public in getting requested information from the government. The order creates a chief FOIA officer in each agency at the assistant secretary level, calls for creation of a FOIA service center in each agency, and directs that the agencies each submit a formal plan for improving FOIA operations within six months. Among the procedural changes, it calls for improved tracking of requests. The order provides no indication, however, of any change in the administration’s policy of a more legalistic approach to discretionary release of requested information that was set out in the controversial memorandum by his first attorney general, John Ashcroft. (12/14/05)
Exemptions Become the Rule in Handling of FOIA Requests
A new study by the Coalition of Journalists for Open Government documents that federal agencies are releasing markedly less information through the Freedom of Information Act than they did just five years ago. The CJOG analysis shows the use of FOIA exemptions to withhold information increased 22 percent between 2000 and 2004, despite the fact that federal agencies responded to 13 percent fewer requests for information. The exemptions most frequently used to say "no" to requesters were those recommended by Attorney General John Ashcroft in his 2001 memorandum and by White House Chief of Staff Andrew Card in a directive six months later. (11/22/05)
Defense Intelligence Agency Again Seeks FOIA Exemption
A provision that would allow the Defense Intelligence Agency to withhold information in its operational files is attached to each of two massive Senate authorization bills, one for defense and the other intelligence. There were never any hearings on the measure, which was rejected by the Congress in 2000. Open government advocates are urging the provision be stripped from both bills. They say it would exclude unclassified information, such as treatment of detainees, from release under the Freedom of Information Act. There is no similar language in the House authorization bills. The defense bill, S 1042, is headed for a House-Senate conference committee, and one congressman, Henry Waxman of California, has already urged the provision be dropped. (12/13/05).
Military Dis-Embeds 2 Journalists Who Photographed Damaged Vehicle
U.S. military officials in Kuwait have dis-embedded two journalists for photographing a military vehicle that was badly shot-up, prompting the Military Reporters and Editors (MRE) ask for a revision of embed rules, if in fact there is any such photo prohibition. Sig Christenson, MRE president and a writer with the San Antonio Express-News, said there was no such rule when he was in Iraq in 2003. And it’s not among rules currently posted by Reporters Without Borders. Christnson added, “The rule does not h
President Urged to Post All Katrina Financial, Contracting Records
Fifty open government advocates and advocate organizations has asked President Bush to have federal agencies post full information about Hurricane Katrina relief and reconstruction financing and contracts on the Internet. The letter says the rapid spending of more than $60 billion provides many opportunities for waste and fraud that require broad oversight – oversight that public posting of the information will facilitate. CJOG is among those signing the letter. (12/16/05)
A New CQ Report on Government Secrecy
CQ Researcher has a new report that traces the increase in government secrecy in the current administration and provides a handy chronology. In the report, Associate Editor Kenneth Jost also notes that the courts “have generally appeared uninterested in enforcing the federal Freedom of Information Act.” We’ve posted the report here with permission of CQ Press. To distribute this copyrighted report, or to obtain print copies, contact Julie Miller at .
Not Exactly the Old Soft Shoe
OMB Watch suggests the 2005 political dance in Washington was often a three-step – one forward and two back – moving the government process even further behind the secrecy curtain. The public access advocacy group calls the dance a backwards Bunny Hop and lists a handful of tentative hops toward transparency and many, many more leaps and bounds backwards. (12/14/05)
Administration Sued Over Withholding of Federal Employee Names
Breaking a tradition of openness that began in 1816, the Bush administration is now withholding the names and work locations of about 900,000 of its civilian workers, the Transactional Records Access Clearinghouse, a research group at Syracuse University, said in a lawsuit. Since 1989, TRAC has posted a database with the name, work location, salary and job category of all 2.7 million federal civilian workers except those in some law enforcement agencies. The data are often used by reporters and government watchdog groups to monitor policies and detect waste or abuse. (12/7/05)
FEMA Memos: Give Florida Hurricane Fund Boost Before Election
Federal Emergency Management Agency documents released in response to a lawsuit by three newspapers show the agency was allocating money to Florida before the first of four deadly hurricanes struck the state in 2004, and planning for a significant increase in the usual reimbursement costs of a disaster just ahead of the 2004 presidential election in which the Florida vote was critical. (12/6/05)
Senate Bill Would Create Ultra Secret Biomedical Agency
A Senate bill that went from introduction to committee approval in less than a day would create a new biodefense agency that is totally exempt from public disclosure statutes. The bill was introduced by Sen. Richard Burr, R-NC, with support from Senate Majority Leader Bill Frist (R-Tenn). It creates an independent agency, the Biomedical Advanced Research and Development Agency, to develop drug responses to both natural outbreaks and bioterrorism. The agency could offer government incentives to pharmaceutical companies and grant the companies “no liability” status. All of the agency’s records would be exempt from disclosure under the Freedom of Information Act, all of its meetings exempt from the Federal Advisory Committee Act, and the agency would not be required to operate under federal cost or cost accounting standards. (10/26/05)
Inside the Beltway
Commission Grades Government on 9/11 Reforms
The 9/11 Commission’s final report grades the government on the status of its recommendations to improve intelligence and anti-terrorism preparedness with the marks ranging from one A- to five F’s. Two of those failing grades could change, the commission said, if pending legislation passes. The only A was given for spending money. The three unqualified F grades were awarded for airline screening procedures, failure to declassify the overall intelligence budget, and the handling of detainees. The overall gradepoint: 1.77 (12/8/05)
A Mere 85 Million Documents Go Online
The National Archives and Records Administration made it easier to search online for millions of old government records – 85 million documents in 475 files compiled by more than 30 federal agencies, to be exact. The files includes photos of disasters and lists of air missions and roles of Irish who fled the famine to the U.S. in the 1800s. NARA’s revamped site is still in a test mode but it’s open at www.archives.gov/aad.
NSA Releases 40-Year-Old Tonkin Gulf Report
The National Security Agency released long-secret documents on the 1964 Gulf of Tonkin incident, including ultra-secret signals intelligence data. The release includes a report by military historian Robert J. Hanyok that argues that NSA intelligence officers "deliberately skewed" the evidence to falsely suggest that North Vietnamese ships had attacked American ships. As a result, President Lyndon B. Johnson ordered airstrikes on North Vietnam and Congress passed authorized military action. (12/6/05)
Declassify Captured Iraq Files, Intelligence Chairs Urge
The chairmen of the House and Senate intelligence committees, Rep. Pete Hoekstra and Sen. Pat Roberts, have ask the Director of National Intelligence to declassify and make public millions of pages of documents captured in Iraq. In a stunning commentary on the limitations of secrecy, they said that making the documents public was the only way the full value of the information contained in the documents might be realized. (11/28/05)
Cheney Keeps Travel Expenses Confidential
Although previous vice presidents have done so, Dick Cheney does not report travel expense reimbursements he receives from non-government groups when he makes speeches or other appearances. Federal law requires agency heads to make such reports but Cheney’s counsel told the Center for Public Integrity that the vice president is not the head of an agency within the meaning of the law, so no reporting is required. The Center said Cheney has given 23 speeches to think tanks and trade organizations and 16 at academic institutions since 2001. (11/29/05)
Open Source Intel: Everything They Want to Know Is Already Out There
The latest intelligence breakthrough may not be someone’s deep, dark secret but rather information that’s public and readily available. The nation’s new intelligence director, John Negroponte, announced the start of the Open Source Center to collect and analyze information from everyday sources worldwide. "Just because information is stolen, that doesn't make it more useful,” said Gen. Michael V. Hayden, the deputy national defense director. The center will operate from the CIA headquarters at Langley, Va. (11/9/05)
Army Memo Seeks to Restrain GI Bloggers in Iraq, Afghanistan
The contemporary security poster might show a nerdy enlisted man pecking away at his laptop, with the message: “Blog Babel Can Trip-Up Troops.” Instead, the Department of Defense has sent around a memo cautioning warfighters in Iraq and Afghanistan to be cautions in what they put on websites and blogs created in their free time. Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy said the memo “raises the prospect of a clampdown on independent reporting in military blogs” but Army officials said that was not the intent. (11/22/05)
Two Reports on Secret House and Senate Sessions
Steve Aftergood and Secrecy News provide two new reports on Congress and secret sessions, such as the closed session Democrats maneuvered on Nov. 1 to discuss Congressional probing of pre—war intelligence in Iraq. Coincidentally or not, the Congressional Research Service published two reports two days later. (11/17/05)
$28 Billion “Black Budget” Veils Pentagon Contracting
The Pentagon’s “black budget” hides at lease $28 billion in annual spending in the name of national security, making oversight from Congress and its own force of auditors difficult, Newhouse News Service reports. That’s how Rep. Randy "Duke" Cunningham gained at least $2.4 million in favors from companies that held contracts with the Defense Department. Cunningham, who pleaded guilty to corruption charges, sat on the defense subcommittee of the House Appropriations Committee. (12/5/05)
DHS Halts Effort to Define Sensitive Homeland Security Information
Open Government advocates have been waiting three years to see how the Department of Homeland Security defines and proposes to implement protection of records designated as Sensitive Homeland Security Information. The long awaited answer, according to Steve Aftergood of Security News, is that DHS has tossed in the towel. However, an interagency effort to define the broader “sensitive but unclassified” continues. (12/12/05)
Laws and Regulations
States Step Opposition to Toxic Reports Cutback
At least 20 states have challenged proposed cutbacks in the flow of information on toxic hazards proposed by the Environmental Protection Administration, the Society of Environmental Journalists reports. The cutbacks in reporting to the EPA are being urged by industry groups, which claim the paperwork burden is onerous. The EPA puts a $7.4 million savings tag for industry on the proposed regulation change. But environmental groups say the loss of information is more critical and potentially more costly. (12/15/05)
An Old Request Comes to a Familiar End
The case goes back to 1994. The reporter’s Freedom of Information Act request was made seven years ago. In response to a lawsuit, the FBI in 2002 released 400 pages of documents that showed four agents had been disciplined for making misstatements under oath. But the FBI withheld other records that explained why the agents were not prosecuted, saying these were internal memos for the Justice Department and exempt from FOIA. Now a federal court has turned down the appeal by the Manchester, Conn. Journal Inquirer for the withheld documents. (12/8/05)
Judge Pushes FBI to Deliver on Patriot Act Document Promise
Federal Court Judge Gladys Keller is pushing the FBI to expedite its response to the Electronic Privacy Information Center’s request for documents related to the USA Patriot Act. The FBI granted EPIC expedited review eight months ago and indicated that each month it could process 1,000 of the 18,000 pages of information on file. However it had produced only 250 pages. (11/22/05)
Federal Court in Miami Agrees to Make Operating Procedures Public
The Federal District Court in Miami has had a procedures manual since at least 1991 but is just now making it public after a series of news reports about secret dockets and a controversial transfer of a retiring judge’s case load. Both defense attorneys and the Federal Public Defender’s Office pushed for public disclosure of the manual. (11/22/05)
Divorce Records Increasingly Sealed to Protect …The Corporation
Courts across the country are increasingly considering and granting third party requests to seal records in divorce cases. The requests come from corporations seeking to protect their trade secrets or financial information, according to a National Law Journal report. A driving factor is the availability of court records on the Internet – 30 states now allow some degree of electronic access. (11/18/05)
Chief Justice Non-Commital In Response to Cameras in Court Request
Chief Justice John Roberts responded to a letter from the Radio-Television News Directors Association urging his support for cameras in the Supreme Court with a cordial but non-conclusive promise to keep the request in mind. But he put a “if” on whether the court is likely to move in that direction. RTNDA President Barbara Cochran said she was optimistic because the letter showed he “still had an open mind.” (11/22/05)
Appeals Court Hears Patriot Act Challenge, Hints at Some Change
A federal appeals court hearing two suits challenging Patriot Act gags hinted it might require the government to give entities required to produce records – libraries and corporations are at issue in these cases -- clear legal avenues of appeal. A Justice Department attorney argued there is “very good reason not to allow public disclosure” during a counterintelligence investigation. And he said the national security letter used is being rewritten to let recipients know they can consult a lawyer. (11/3/05)
Beyond the Beltway
Texas Starts Open Government Training for Officials
Open government training becomes mandatory for state and local officials in Texas starting January 1. Attorney General Greg Abbott unveiled new open government training materials designed to educate officials on both open records and open meetings laws and displayed a certificate of completion as the first graduate. The law give incumbents a year to complete the training. Any one elected after Jan. 1 has 90 days.
California Denied Data on Liquefied Natural Gas Installation
The federal government, which took over licensing of liquefied natural gas facilities, is refusing to give California officials information on a proposed Long Beach installation. It says a safety study sought by the state’s Energy Commission falls under Critical Energy Infrastructure Information and cannot be released. Commission members would have to sign non-disclosure agreements and not share the data with anyone, including the governor who appointed them.
Massachusetts Paper Petitions Court to Open Pre-Trial Hearings
The Lawrence, Mass. Eagle-Tribune has petitioned the state’s Supreme Judicial Court to overturn a 1975 holding that closes pre-complaint hearings. The newspaper argues that probable cause hearings are a critical first step in the justice process and should be open to the public. (12/16/05)
Bipartisan Team Will Offer Shield Law in Washington State
A reporter shield law drafted by Washington State Attorney General Rob McKenna will be introduced by a bipartisan group of legislators. Thirty-one states and the District of Columbia now have similar shield laws. McKenna cast the bill as good government legislation: “The reporter's privilege helps maintain an open and accountable government and society.” (12/6/05)
FOIA Request Unveils Many Near Misses at Proposed Reactor Site
Dozens of small, "near-miss" episodes occur without public notification at the Idaho National Laboratory, each year, the Associated Press reported after obtaining records under the Freedom of Information Act. The U.S. Department of Energy wants to begin producing plutonium-238 at the site for the first time in decades. Congress just appropriated $40 million to begin developing an experimental nuclear power reactor. Activists have been pushing for public disclosure of small incidents in regular “occurrence reports. (12/12/05)
Judge Blows a Hole in Veep Visit Security Argument
A circuit judge ruled that Kentucky Gov. Ernie Fletcher and state police improperly withheld police overtime and records of expenses in conjunction with a political fund-raising visit by Vice President Dick Cheney’s last March. Cheney flew into Louisville and was escorted to the event in Indiana. Kentucky police invoked a security provision in the state’s records law to withhold the expense information sought by the Associated Press and the Louisville Courier-Journal. "There is little 'reasonable likelihood' that the numbers of Kentucky State Police assigned in this situation or the amount of tax dollars expended will expose a vulnerability in the security measures,” Judge Roger Crittenden said. (12/12/05)
Listening Is Legal, Responding's Not, AG Tells Rhode Island Officials
The Rhode Island Attorney General’s Office has advised city councils to listen but not speak when citizens raise issues not on the posted agenda. Otherwise, says Special Assistant Attorney General Christy Hetherington, the council members risk violating the state open meetings act that prohibits discussion on any topic that has not been properly advertised or posted before the meeting. The opinion was issued in respond to a question on how officials should respond to issues raised at “open forums” where citizens are free to bring up any issue on their minds. (12/12/05)
Open Meetings Compliance Slips in Tennessee
A new survey shows that government officials in Tennessee are increasingly violating the state’s open meetings law. The Tennessee Coalition for Open Government conducted a new count of violations in the first 10 months of 2005 and came up with 45, an increase from 39 in 2004 and 31 in 2003. A survey of compliance with the public records last year showed about one-third of the agencies failed to meet the law’s standards. (12/6/05)
Bridge Inspection Reports Termed "Deliberative"
The New York Department of Transportation is withholding inspection documents on the Dunn Memorial Bridge in Albany, claiming that memos written by inspectors are “deliberative” and exempt from the public records law. Other, already released memos on the structure’s safety, suggest the department may be trying to avoid embarrassment by keeping the records secret, The Albany Times Union reports. (12/12/05)
Maybe That’s How They Balance That Budget
In Alabama, it’s every city for itself when it comes to pricing copies of documents, and the city of Selma seems to be bidding for top spot. A reporter at the Selma Times-Journal asked for a copy of the city’s budget, thinking it might be helpful in writing a story on proposed spending. The cost: $149.75, or $2.49 a page including a “binding fee.” That compares with an average of 80 cents a page charged by other Alabama towns, according to a 2003 surey by the Alabama Press Association.. (12/12/05)
Voters Oust 4 School Board Members Who Met in Secret
Four members of a district school board in New Mexico were recalled by voters after reports that they had violated state open meetings laws. The Gadsden board met in secret in August to fire the district’s school superintendent. They claimed the vote itself occurred in a public meeting, however no one was in attendance. (11/22/05)
Montana’s Governor: The Days of Secret Meetings Are Over
The Montana Public Employees Retirement System voided its vote to hire a new executive director after Gov. Brian Schweitzer said he would file a lawsuit because the board took its action at a closed meeting. The governor said he didn’t object to the board’s choice, just the way they went about their business. “The days of secret meetings are over.” (11/22/05)
Newspapers, Coalition Sue Schwarzenegger To Get Appointment Calendars
Two newspapers and the California First Amendment Coalition sued Gov. Arnold Schwarzenegger to force release of the appointment calendars and other records that would show with whom his key aides met when the governor was considering whether to sign or veto prime legislation. He votoed bills that would raise the minimum wage, require economic impact reports before local governments approve Wal-Mart-style superstores and promote recreation and restoration over maximizing logging in state forests. (11/22/05)
Missouri Police Ordered to Release Internal Affairs Records
An appeals court in Missouri told the City of Springfield it must release police internal affairs records of an investigation in the case of a man charged with assaulting three officers. The man claims self defense and sought statements made by the officers and other citizen complaints against the officers. (11/29/05)
Appeals Court Approves Review of Autopsy Records, Crime Photos
The Second District Court of Appeals said it would allow Florida News organizations to review autopsy records and crime photographs entered into evidence in a Tampa Bay murder case. The court said the photos could not be published, however. Florida Attorney General asked the U.S. Supreme Court for an emergency stay but that was denied by Justice Anthony Kennedy. (12/5/05)
Reason Not Relevant in Records Request, Illinois Court Says
The Illinois' 4th District Appellate Court ruled the reason someone wants information in a public record should have no bearing on whether the request is granted. It said a lower court decision upholding the city of Springfield’s refusal to release information sought by an attorney suing the police department “could lead to the absurd result” where information is released to some individuals and not others. (12/5/05)
New York Court: College Senates Must Follow Open Meetings Law
The New York Court of Appeals said decision-making entities at the state’s public colleges must follow open meetings and records laws. The decision came in a case involving a community college senate, composed of faculty, students and administrators, which is empowered to make and policy recommendations and revise existing policies in some areas. (12/5/05)
FOI Commission Says Some Medicaid Records Should Be Open
Connecticut’s Freedom of Information Commission ruled that private health maintenance organizations that operate state-funded Medicaid health networks must share some of their records with the public. Four HMOs will have received $625 million in 2005 to serve 300,000 clients. The ruling frew out of a professor’s request for information on how much the HMOs pay cardiologists and gastroenteromolgists. (12/16/05)
Open Government Audit Gives South Carolina a Modest Score
The Associated Press, the South Carolina Press Association and state newspapers conducted an audit of school boards, city and county councils and law enforcement agencies to check up on compliance with open government laws. Police in Charleston and about a third of the other cities tested, didn’t seem aware of the law. About one fourth of the council members admitted closed door discussions that are not permitted by law. (11/14/05)
Judge Blocks Release of Mayor's Internet Portfolio
A judge in Spokane stopped the city’s release of 3,300 pictures of men found on the city hall computer used by Mayor Jim West. Judge Richard Miller said the material was clearly a public record but expressed concern for the privacy of the men pictured. He did order release of the mayor’s “index of usage,” which will include the addresses of Web sites he visited. The Spokesman-Review reported earlier that the mayor had used his city hall computer and office to solicit underage male companions. The mayor faces a recall election Dec. 6. (11/19/05)
Delinquent Data Base Explains Why City Is Behind on Collections
It took two months, but the San Diego Union-Tribune finally obtained an electronic version of the city’s list of more than a half-million delinquent debtors. The paper’s sidebar on problems getting the data helped explain the high number, including repeat debtors listed in different ways, and many telling the paper, when called, that they had never been contacted about being delinquent on payments. (11/22/05)
Atlanta Judge: NASCAR Museum Bids Are Public Record
A superior court judge in Atlanta said the city’s bids to lure a NASCAR hall of fame and the 2009 Super Bowl must be public. Two business groups spearheading the efforts, the Chamber of Commerce and Central Atlanta Progress, argued they are private organizations and not subject to public records laws. Georgia Attorney General Judge Thurbert Baker disagreed because public money was being pledged to the efforts. He filed suit. (11/10/05)
Environmental Group, Vermont Duel Over Records of Delayed Runoff Plan
An environmental group is challenging the Vermont National Resources Agency over records of a stormwater runoff plan that has yet to be implemented after 15 years. The Conservation Law Foundation wants to review the decision-making process, particularly what led a plan developed in 2002 to be shelved by a new administration. State officials contend releasing the documents would lead to officials “censoring themselves because they’re afraid of what may be disclosed” and claim a “deliberative process privilege.” (11.22/05)
Indiana Legislature Puts Sessions, Some Hearings On Internet Live
Until now, the Indiana General Assembly has been anything but user friendly. Committee meeting rooms were small, crowded, uncomfortable. It was difficult to hear. But now, you can jammie surf the regular sessions, watching via the Internet, and in the upcoming session key committee hearings will also be provided by streaming video. (11/29/05)
Parents Get The Inside Principal Transfer Story Via E-Mails
The e-mails told the story. School administrators Ann Arbor getting ready to reassign five school principals knew there would be strong public reaction – and they talked about it – by e-mail. Parents, not all happy about the changes, filed freedom of information requests for records related to the transfers, including the e-mails. (11/10/05)
Court Orders Juvenile Center Lawsuit Unsealed
An appellate court in Pennsylvania ordered that a lawsuit filed against a juvenile detention center filed by the Pennsylvania Child Care office be unsealed. The state agency had asked a lower court to seal the records in the case, which involved a $58 million lease. The agency said “trade secrets” were involved, an argument the appeals panel called a “ruse”. The Wilkes-Barre Times Leader had asked the records be released. (11/19/05)
Massachusetts Treasurer's Bottom Line: Speak No Evil
Massachusetts Treasurer Timothy Cahill has executed a half dozen confidentially agreements with departing employees, promising to keep the reasons for their leaving private in exchange for a promise they won’t speak ill of the treasurer's office. Cahill said he’s simply bringing private business practices to the public realm. One of the departed employees left shortly after downloading so much pornography on his office computer that it collapsed. He then took a top finance post at a state university that knew nothing of the computer incident. The university fired him when they later learned about it. (11/10/05)
Minnesota Agency Holds 911 Call Record Is Public
Police in the Minnesota town of Moorhead improperly withheld the record of a 911 call record in a man admitted to killing his lover, the state’s Department of Administration said. The Fargo Forum sought the record but city officials said it was part of an ongoing investigation and refused. (11/7/05)
Open Meeting Violations on the Increase in Tennessee
Tennessee’s Coalition for Open Government says government officials are violating the state’s admittedly weak open meetings law with increasing frequency. Coalition director Frank Gibson said 45 suspected offenses were reported in the first 10 months of 2005, up from 39 last year and 31 in 2003. The law has no effective enforcement mechanism. (11/28/05)
YESTERDAY’S NEWS
