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FOI Alert

Congressman Asks That "Intercept" Conviction Be Overturned

The attorney for a Washington State congressman asked a federal appeals court to toss out a ruling that he broke federal law more than a decade ago by giving reporters a transcript of an “illegal intercept” of a telephone conversation between then speaker Newt Gingrich and Republican colleagues. Rep. Jim McDermott claims the decision will have a “chilling effect” on free speech. A former Gingrich lieutenant who filed the suit said that was precisely the idea. 18 news organizations have backed McDermott. (11/17/05)

Seven-Month FOIA Delay Prompts Suits on Scholar Visit Records

Last March, the American Civil Liberties Union filed a FOIA request for government documents that would show whether immigration laws, including a section of the Patriot Act, have been used to deny visas to prominent foreign scholars. Having had no response to its request from Justice, State, Homeland Security or the CIA, the ACLU, along with the American Association of University Professors and the PEN American Center, sued. (11/14/05)

FBI Expands Personal Information Searches with "Security" Letters

The FBI is serving more than 30,000 national security letters a year, allowing it to collect personal information about customers and patrons from banks, phone and credit card companies, and libraries while gagging those sources from telling anyone their records have been searched. The Washington Post reported that’s 100 times as many as were issued prior to adoption of the Patriot Act. The letters can be authorized by a dozen or so officials at FBI headquarters and the agency’s field supervisors and do not need to be cleared by either judge or grand jury. The Post also reported that because of an attorney general’s directive, the data gathered is going into a database that is shared with other government agencies rather than being discarded if the investigation shows no wrongdoing. (11/7/05)


Federal Judge Says Privacy Outweighs Public Interest in FEMA Fraud

A federal judge in Florida ruled that the Federal Emergency Management Agency can keep confidential the names of persons who receive hurricane relief funds. The decision came in a lawsuit brought by three newspapers who requested claims information after grand jury fraud indictments and other indications that millions had been paid in false claims. Judge John M. Steele said the privacy interests of the claimants “substantially” outweighs the FOIA-related public interest in disclosure.” The judge did order the release of a number of other hurricane relief related records (11/7/05)

  • The Decision
  • Louisiana Black Caucus Demands FEMA Provide Names

Wall Street Journal Asks Court to Unseal Leak Case Data

The Wall Street Journal and its parent, Dow Jones, asked that the federal district court in Washington DC to unseal eight pages of redacted information that special prosecutor Patrick Fitzgerald used to convince the court New York Times reporter Judith Miller should be jailed for contempt. The pages contained information that Judge David Tatel said in a concurring opinion demonstrated Fitzgerald had "met his burden of demonstrating that the information [sought from the reporters Miller and Mathew Cooper ] is both critical and unobtainable from any other source."

Reporters Committee Reviews Judge Alito's 1st Amendment Record

The Reporters Committee for Freedom of the Press reviewed the lengthy paper trail of Supreme Court nominee Samuel A. Alito Jr. as an assistant attorney general and as an appellate judge and found a number of media-related cases. In one, he endorsed a qualified privilege for reporters but held the individual involved wasn’t in fact a journalist. In a solitary records access case, he ruled for personal privacy of the information. He said a federal employee has a reasonable claim of privacy for his home address and “there is no public interest cognizable under FOIA in the disclosure of these addresses.” (11/2/05)

Counting These Minutes Reveals More Than the Time

Until now, no one has counted. So the Shenandoah Valley Daily News-Record did. It reviewed the published minutes of 17 local government boards and councils over the past five years and revealed that 57 percent of the almost 1,900 meetings had been held all or partly behind closed doors. Government officials said they had good reason to go private but one former mayor said most local officials look at the open meetings law, with its exemptions, as a license. (10/25/05)

A Different Records Audit: What’s Available on the Website

Only two of the 107 school districts in South Jersey got a passing grade from the Courier Post in its analysis of public information posted on district websites. The newspaper reviewed each for such basic citizen-taxpayer-parent information as meeting agendas and minutes, budgets, audits, policies and student-parent handbooks. (10/24/05)

FOIA Request Turns Up Data on Secret Surveillance

Records made public through a Freedom of Information Act lawsuit show that since 9/11 the FBI has conducted clandestine surveillance of U.S. residents for as long as 18 months without any oversight. The records covering the years 2002 to 2004 indicate close to 300 violations of laws and directives governing clandestine surveillance. The Electronic Privacy Information Center, which sued to get the information, said the records "suggest that there may be at least thirteen instances of unlawful intelligence investigations that were never disclosed to Congress." (10/24/05)


Will Leak Case Force Redefinition of What's Really Secret?

What may come next in the C.I.A. leak case has many journalists and government officials worried, David Sanger writes in the New York Times article that explores the world of secrecy inside the beltway. “The most secretive White House in modern history has learned the hard way …that it must reveal a pretty steady stream of secrets.” The problem that poses for both journalists and officials: “the law does not distinguish terribly well between real secrets and sort-of secrets, especially in an age when the instinct to stamp "classified" runs rampant.” (10/24/05)


Fixing Classification System “Is Like Tuning an Edsel”

The federal government’s classification culture needs to be reset, the staff director and counsel for the House Ntional Security and Terrorism Subcommittee, told a symposium on classification sponsored by the Information Security Oversight Office. Lawrence Halloran said over-classification has damaged the integrity of the system. "People notice all kinds of stuff sloshing around (in the classification system) and that makes them think it's OK" to leak.” He added, in response to a Defense Department official’s comments on a new education program, “it’s like tuning an Edsel.” When done, "Your car is tuned, but it's still a really old car that may not get you where you want to go." The classification system, he said, is haunted by "Cold War ghosts and demons. …All the incentives operate in the direction of keeping things secret." (10/21/05)


Miller, Five Others Testify on Reporters Shield Law

A federal prosecutor from Texas, representing the Justice Department, urged the Senate Judiciary Committee to reject a Reporters Shield proposal because it would impede the government’s ability to fight terrorism and protect national security. But New York Times reporter Judith Miller, who spent 85 days in jail for refusing to reveal a source, argued that “even flawed reporters should not be jailed for protecting even flawed sources.” And other media witnesses argued that the issue is much broader than recent publicized cases. The testimony came in the second hearing on the legislation sponsored by Sen. Richard Lugar and Rep. Mike Pence, both Indiana Republicans. (10/19/05)


Reporters Committee Files to Intervene in AIPAC Case

The Reporters Committee for Freedom of the Press asked permission to file an amicus brief in the criminal case against of two former lobbyists for the American Israel Public Affairs Committee. It said prosecution of the case "could affect the very nature of how journalism can be practiced. …While the government certainly has a legitimate interest in keeping national security information out of the wrong hands, an overly aggressive approach that interferes with the flow of information to the public and its ability to hold its government accountable can undermine the democratic principles we all seek to defend," the Reporters Committee argued in its motion. (10/19/05)

Knight Foundation Approves Two Open Government Grants

The John S. and James L. Knight Foundation made two grants in support of open government. The first awards $1.7 million to the University of Missouri School of Journalism to merge the National Freedom of Information Coalition into its National Freedom of Information Center. The coalition, founded in 1992, works with state open government coalitions to protect public access to information. The second grant, $200,000, underwrites the national Sunshine Week project launched by the American Society of Newspaper Editors last year. (10/10/05)

Committee Urges New Standards to End Overclassification

In reporting out the intelligence funding bill, the Senate Select Intelligence Committee took a swipe at over-classification. While offering no examples, the committee report said “Improper classification of information -- the disclosure of which would not harm national security -- prevents the public from considering national issues in light of all publicly available facts." It urged the Director of National Intelligence to review classification guidelines and come up with new standards. (10/6/05)

New Intelligence Bill Authorizes Pentagon’s Domestic Spying

A $40 billion-plus authorizations bill approved by the Senate Intelligence Committee gives Pentagon operatives authority to gather information in this country without revealing their identity or affiliation and exempts “operational files” of the Defense Intelligence Agency from disclosure under the Freedom of Information Act. Congress previously declined to extend the sources and methods exemption it granted to the CIA to the defense intelligence unit. (10/3/05)


Judge Rejects “Threat” Argument, Orders Abu Ghraib Photos Released

A federal judge in Manhattan rejected a Defense Department argument that the release of additional photographs showing Abu Ghraib prisoner abuse could endanger U.S. troops, saying the struggle in Iraq should not be at the sacrifice of “the transparency and accountability of government and military officials.” Judge Alvin Hellerstein said the photos should be released because it would fuel the debate not only over the role of American troops in the abuse but also about the role of military commanders "whose failures in exercising supervision may make them culpable." (9/30/05)

U.S. Troops Harming Press Coverage of Iraq War, Reuters Says

Reuters told Sen. John Warner, head of the Armed Services Committee, that U.S. forces are restricting the ability of journalists to cover the war in Iraq. In a letter to the Virginia Senator, Reuters referred to a “long parade of disturbing incidents” in which journalists were killed, wrongfully detailed or illegally abused by U.S. troops. The news agency asked Warner to press Defense Secretary Donald Rumsfeld to find a way to balance security needs with rights of journalists in combat zones. (9/29/05)


Military Says It Won’t Limit Storm Coverage Access

A spokesman for the military command in New Orleans said news media have “complete access” to the post-Katrina rescue and recovery operations along the Gulf Coast – as long as they are operating on their own. The clear implication of the comments made to a San Francisco Chronicle reporter, who had been stopped earlier, was that the military might insist on coverage limitations with those reporters given transportation or other military assistance. (9/15/05)

Roberts: Media's Access Rights Same as the Public's

Chief Justice nominee John Roberts gave qualified support to media access in emergency situations during his confirmation hearing. Responding to questions from Sen. Patrick Leahy, who cited efforts to bar reporters from some New Orleans locations and block filming of dead bodies, Judge Roberts said the media should not be barred in any situation where the public had access. Pressed, he said he was not up to speed on First Amendment access issues, but suggested that the response of some military personnel in New Orleans did not meet a legal standard for denying access: “Simple disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest." (9/15/05)

  • Roberts Comments on Media Access, First Amendment

In Iowa, a Disaster Plan That the Public Can’t See

Watching and reporting on the disaster that was the governments’ response to Hurricane Katrina’s destruction of New Orleans, the Des Moines Register asked an obvious question of its state government: Can we see our disaster plan? What the paper got was a heavily redacted 86-page document. Among the sections blacked out was the line of succession, because it might make the governor’s potential successors “vulnerable.” Of course, that information is in the state constitution. Wonder how much of the Louisiana’s disaster plan was similarly kept from anyone who didn’t have “need to know” clearance? Or FEMA’s? (9/13/05)

Environmental Journalists on FOIA: "A Flawed Tool"

The Society of Environmental Journalists released a new study of the Freedom of Information Act as experienced by some of its reporters. It recounts increasing difficulties in getting government information, much of it routine, including delays of up to a year, heavy-handed redaction of data, and challenges to the waiver of fees as required by law. And the problems continue. Several reporters have run into new problems getting environmental data in New Orleans, prompting SEJ to send a letter of protest to the Environmental Protection Agency. (9/12/05)


Reporters Committee Updates Homefront Confidential Report

The Reporters Committee for Freedom of the Press released it’s sixth Homefront Confidential report showing the war on terrorism’s worsening impact on information access and increasing agency actions to limit the ability of journalists to do their jobs. The report includes a chronology of federal government actions taken since September 11 that jeopardize the public's right to know. (9/12/05)

Congressional Research Reports on Katrina Made Public

The Congressional Research Service quickly prepared at least four reports related to the aftermath and impact of Hurricane Katrina. Congress prohibits direct public access but these reports were made available by Pennyhill Press through the Federation of American Scientists. The reports are linked below. (9/9/05)


Following Katrina Story Grows More Difficult, Sometimes Scary

Reporters and photographers covering the evacuation and recovery efforts in New Orleans have run into a very different, if sometimes equally scary storm. Some police, National Guard and other officials have tried to discourage and even block coverage. NBC’s Brian Williams and his crew were turned back by National Guardsman. First FEMA and then Louisiana officials asked news organizations not to photograph dead bodies. A Toronto Star photographer had his camera equipment taken and he and a reporter were ordered to leave – at shotgun point.


Roberts Backed Limits on FOIA and Its “Abuses”

Chief Justice nominee John Roberts once suggested in a memo that the President delete a reference to “freedom of information” in a speech condemning the Soviet Union because any positive acknowledgement of the principle would be in conflict with White House efforts to limit the effectiveness of Freedom of Information Act. OMB Watch cited this comment in a Roberts’ critique of the proposed speech: "'Freedom of information’ is of course a legal term of art, and we have, quite correctly, taken several steps to limit the scope and certain abuses of the Freedom of Information Act." (9/7/05)

Noting that “the inadequate response to Hurricane Katrina shows the public needs to know what could happen in their communities and what the response plans are,” Open the Government released its second federal Secrecy Report Card, tallying the withholding of information across a broad range of government activities. It calculated that spending on the classification of information exceeded spending on declassification by 148 to one in 2004, a 23 percent increase. The report also said that there are now at least 50 new restrictions being routinely used by agencies to withhold unclassified information. (9/6/05)


FOI Roundtable Stirs Conversation on Media Relations

The Wilmington News Journal held the second in a series of FOI Roundtables, co-sponsored by APME, in Dover, the Delaware capital. The roundtables bring journalists together with public officials and citizens to share views on open government issues. After an initial give-and-take on one senator’s bill to put more sunshine in legislative proceedings, the discussion turned to distrust and the need for all to build better relationships. One official suggested said the public records request process “sets up an adversarial relationship.” More positively, another suggested state departments consider developing new rules on information that could be released without citizens or reporters having to file a formal freedom of information request. (9/2/05)


Media groups hail decision to drop New York Times subpoenas

Federal Prosecutor Withdraws Reporter Subpoena in Cuban Exile Case In a surprise action, federal prosecutors in Miami dropped their subpoenas for New York Times and its reporter on a series of 1998 stories about CIA operative Luis Posada Carriles, accused of involvement in a 1976 bombing of a Cuban airliner. Times reporter Ann Bardach had interviewed Posada in 1998, then wrote that he had "admitted to masterminding" a 1997 bombing campaign in Cuba, something he later denied. (8/12/05)

Citing Unlawful Withholding, Court Awards $900,000 in FOIA Case Legal Fees

Declaring that the Department of Commerce’s handling of a 10-year-old FOIA request for trade mission records was “inadequate, unreasonable, and unlawful” and that the department both removed and destroyed public records rather than release them under court order, the U.S. District Court in Washington awarded Judicial Watch, the requester, $897,331 in fees and costs. “As if the agency's own conduct were not reprehensible enough, its counsel has also repeatedly strayed far outside the boundaries of professional conduct (although not without some provocation by counsel for Judicial Watch),” the court said. (8/5/05)

Pentagon Agrees to Release of Coffin Photos

As part of the settlement in a FOIA lawsuit brought by a University of Delaware journalism professor and the National Security Archive, the Pentagom agreed to release additional photographs of military personnel killed in Iraq. The suit against the Defense Department policy, in place since the Persian Gulf War in 1991, covers military photos. It does not affect the DOD ban on news photographs or coffins being flown into Dover Air Force Base in Delaware. (8/5/05)

Federal Court Asked to Enforce Release of Abu Ghraib Photos

Fourteeen media organization and companies have asked a U.S. District Court in New York to enforce its order to the Defense Department to release Abu Ghraib prisoner abuse photos. The court had ordered the release in a suit filed by the ACLU, but the DOD failed to meet the release deadline and instead filed a partly sealed brief with the court claiming release of the photos could touch off violence against U.S. military personnel and civilians overseas. A brief written by The Reporters Committee for Freedom of the Press says FOIA exemptions should not be used “to hide incendiary evidence of government misconduct. Hiding the information would reward misconduct and “obscure government accountability at a time when it is most necessary for the public to have full access to the facts.” (8/4/05)


Four File Brief Challenging National Security Letter Process

The National Security Archive and three other advocacy groups filed a friend of court brief in a lawsuit that challenges the FBI’s authority to issue National Security Letters without judicial review and to gag recipients of the letters. A district court in Manhattan ruled last fall that the practice, authorized in the Patriot Act, violated the 1st and 4th Amendments. The ruling has been appealed to the 2nd Circuit. “Experience shows … the Government does not always have an incentive to limit secrecy . …Meaningful judicial review is necessary to separate out the legitimate and illegitimate claims for secrecy,” the brief said. The Project on Government Secrecy of the Federation of American Scientists, the Electronic Privacy Information Center, and the National Whistleblower Coalition joined the brief. (8/4/05)

APME Names First Amendment Award Winners

Two California newspapers, the Contra Costa Times and the Bakersfield Californian, and the Tuscaloosa News in Alabama have won Associated Press Managing Editors association First Amendment Award for their fights to obtain public records. Contra Costa also audited records access at more than 100 government offices. (8/3/05)

Gonzales Urged to Rescind Ashcroft FOIA Guidelines

A number of news organizations have urged Attorney General Alberto Gonzales to rewrite four-year-old Justice Department guidelines to federal agencies on how to handle Freedom of Information Act requests. Former AG John Ashcroft issued the restrictive instructions on release of public information shortly after 9/11. Gonzales said in an interview with the AP he would “take a look” at the earlier memo. The AP, American Society of Newspaper Editors, Associated Press Managing Editors and Newspaper Association of America immediately sent letters urging the review. (7/29/05)


Reporters Committee Looks at Judge Roberts 1st Amendment Record

A review of Judge John G. Roberts' record on the bench and as a litigator offers no clear sense of his thoughts on First Amendment, free press and freedom of information issues, the Reporters Committee on Freedom of the Press says in a review of his records. Roberts handled a number of First Amendment cases as deputy solicitor general but in each instance he was representing the first Bush Administration. Both the Reporters Committee and the Freedom Forum First Amendment Center note that only a few of Roberts 40 opinions as a U.S. appellate judge in DC dealt with media issues. (7/21/05)

  • First Amendment Center Analysis

Shield Law Gets Initial Hearing Before Senate Judiciary Committee

A panel of journalists and media lawyers told the Senate Judiciary Committee that Congress should clarify a reporter’s legal right to protect confidential sources. The committee is considering a bill that would provide an absolute privilege for reporters except in national security cases. The six witnesses all spoke in favor of such legislation but the Justice Depatment in written testimony submitted to the committee called the bill by Sen. Richard Lugar (R-In) “bad public policy.” At the end of the hearing, Judiciary Chairman Arlen Specter (R-Pa) suggested the bill needs stronger support to go anywhere this session but that “Today was a significant start to exploring the problem." (7/22/05)

  • Floyd Abrams
  • Matt Cooper
  • Norm Pearlstine
  • Lee Levine
  • Geoffrey Stone
  • William Safire
  • Statements of Bill Sponsors
  • Written Statement, Justice Department
  • Text of Amended Shield Law
  • Qualified Privilege Upheld in Libel Case

Matt Cooper Writes That Rove Was His Primary Source

Matt Cooper writes in the latest Time Magazine that presidential advisor Karl Rove was the first person to tell him that former Ambassador Joseph C. Wilson IV wife was a C.I.A. officer although he did not name her. Cooper’s account of the CIA leak was one of the few direct accounts in a story that is advancing primarily by new leaks. The New York Times reported that ‘someone who has been officially briefed” said columnist Robert Novak and Rove talked by phone on July 8, 2003 and that Rove responded, “I heard that, too” when the columnist said he’d learned that Wilson’s wife, Valierie Plame, had recommended her husband, former ambassador Joseph Wilson, be assigned to investigate possible uranium sales to Iraq. Novak’s column naming Plame appeared several days later, touching off a political storm and then the formal investigation that resulted in the jailing of New York Times reporter Judith Miller for refusing to disclose her source. (7/18/05)


Newspaper Holds Back on Articles Based on Leaked Information

"Take away a reporter's ability to protect a tipster's anonymity and you deny the public vital information," Cleveland Plain Dealer Executive Editor Doug Clifton wrote in a column in which he said his paper had recently withheld two investigative reports because they relied heavily on documents that had been illegally leaked to the paper. He said the newspaper’s attorneys advised against publication because it could lead to penalties against the paper and jailing of the reporters. He and the reporters, he said, were willing to accept the penalties; the paper could not. (7/12/05)


Reporter Judith Miller Jailed for Refusing to Reveal Plame Case Source

Federal Judge Thomas F. Hogan sentenced New York Times reporter Judith Miller to jail until October for refusing to disclose the identity of a reporting source on a story she never wrote. Time Magazine reporter Matt Cooper avoided imprisonment in the same investigation into who leaked the name of C.I.A. operative Valerie Plame, when he said he would testify before a grand jury because his source has released him from his promise of confidentiality. “If journalists cannot be trusted to keep confidences, then journalists cannot function and there cannot be a free press," Miller told the court. (7/7/05)


ACLU Report Says Government Secrecy Hampers Science

"Science Under Siege," a new report from the American Civil Liberties Union, says government restrictions on the sharing of scientific information are “bad for science, bad for freedom and not effective” in enhancing the nation’s security. The ACLU urged agencies to stop using identifiers such as “sensitive but unclassified” to withhold information that does not warrant classification. (6/24/05)

  • "Science Under Siege" Executive Summary

Over 250 Requests for Records on Readers, Librarians Say

Librarians across the U.S. say law enforcement officials have made more than 250 requests for records of patron reading habits since 2001, have been asked at least 268 times. The requests were both formal and informal, according to a survey by the American Library Association, and it’s not known how many were made under provisions of the USA Patriot Act. The House recently approved a bill that would make it more difficult secretly gather information on reading habits. The Justice Department has said it has not subpoenaed library records and a spokesman noted that the survey did not specify which law enforcement agencies sought the records.

Does EPA Have a Gag on Talking to Reporters?

Has the Environmental Protection Agency ordered its employees not to speak to reporters without press office clearance? A New York Times story June 8 suggested there is a gag, citing a source who insisted on anonymity because “all agency employees are forbidden to speak with reporters without clearance.” EPA Administrator Stephen Johnson said the same day, "I'm not aware of any gag order, so to speak," and “it’s certainly no policy that I have.” Just in case, a whistleblower protection group, the Government Accountability Project, has written EPA warning that such a policy would is unconstitutional. (6/15/05)

State Attorneys General Join in Reporter’s Shield Case

34 attorneys general are joining in an amicus brief urging the Supreme Court to accept the contempt appeal of reporters Judith Miller and Matt Cooper, and to recognize a right to keep news sources confidential. “Overall, society is better off with an open press and an informed public. In addition, it's important everyone knows what the rules are. Reporters in fairness need to know they're going to be protected. That argument has turned a lot of AGs around," said Utah Attorney General Mark Shurtleff, who helped organized the filing. (5/27/05)


No Compromising Information on Federal Websites, Study Finds

The Rand Corporation’s National Defense Research Institute identified only four of 629 federal databases it reviewed that it said might restrictions on information that is published on the Internet, and it said those four are no longer posted. T he Associated Press reported that the study, conducted between mid-2002 and mid-2003, found no federal Web sites that contained target information essential to a terrorist — information without which an attack couldn't be launched. (5/25/05)

Form FOI Alliance With the Public, AP President Urges

Associated Press President Tom Curley urged the news media to build a strong alliance with the public in an effort to confront government secrecy. "We all need to do a better job of persuading the public that freedom of information is not a media privilege but a key part of what keeps other freedoms alive for all," Curley told the National Freedom of Information Coalition, a network of state-based open government organizations. He said that at the same time, news organizations need to take steps to rebuilt their credibility, including less frequent use of anonymous sources. (5/16/05)

  • The Mobilized Media

Congressional Quarterly Reports on “The Mobilized Media”

In a report headlined “Mobilized Media,” Congressional Quarterly suggests that a modest media effort in legislative advocacy – “hardly the kind of highly coordinated effort your typical fat Washington wallet buys” – is having some success, citing the introduction of bills to modify FOIA and provide a Reporters Shield Law. (CJOG is one of the organizations involved in that effort.) The report notes that “even as some journalists conclude that they must actively combat secrecy in order to do the job of covering government, others find advocacy awkward and incongruous. There seems to exist an inherent tension, perhaps an outright conflict, in the Fourth Estate seeking to influence the way government behaves.” (5/9/05)

Military Reporters Protest Restricts at Ft. Bragg Murder Trial

Military Reporters & Editors along with five other journalism organizations, have asked the Defense Department to rescind a set of 14 “groundrules” it has forced reporters to agree to cover the trial of Army Sgt. Hasan Akbar at Fort Bragg. The department’s immediate response is that they did not set local courts martial press rules but the journalism groups also asked the Defense Department to establish reasonable service-wide standards. (4-28-05)


Appeals Court Refuses to Rehear Miller, Cooper Contempt Case

The U.S. Court of Appeals in Washington declined to rehear the case of reporters Judith Miller of the New York Times and Matthew Cooper of Time Magazine, who were found in contempt for refusing to reveal their confidential sources to a grand jury investigating a government leak of the identity of CIA operative Valerie Plame. (4/19/05)

Sometimes, Secrecy Seems More Silly than Secure

Sometimes, secrecy is silly. OMB Watch has collected several examples of recent information withholding that will leave you … well, shaking your head. Like the Transportation Security Administration directive to pilots to stay clear of nuclear power plants, followed by a refusal to tell pilots or their association where those areas to be avoided might be. Or the decision by OSHA not to share a work hazards assessment at a major airport with the folks who work there. (4/6/05)

Seduction of Secrecy - A Discussion of Anonymous Sources

Washington is awash in secrecy; the use of anonymous sources undermines press credibility; and the media does not adequately inform the public about open government issues, 28 journalists, scholars and freedom-of-information experts said during a symposium on “The Seduction of Secrecy: Toward Access to Government Information on the Record.” The 5th Curtis B. Hurley symposium was co-sponsored by the Missouri School of Journalism and by the National Press Club, and moderated by Missouri’s Geneva Overholser. “There are a number of things that we have to do,” said the AP’s Tom Curley. “We have to be able to walk out of a room when somebody wants to go off the record. We have to have the courage to hold the story, perhaps to get it on the record, perhaps to get a fuller context. … We have to shine a spotlight on this issue. We have to cover it more aggressively.” (3/21/05)

The State of FOI, 2005: Four Reports

For the most part, privacy took a back seat to national security as vaguely defined terms such as “sensitive but unclassified” came more into play in the courts. And special court committees are wrestling with how much access “pajama surfers” should have. In the Congress, for a change, there is some movement, and the possibilities for new legislation greater than in recent years with the introduction of several FOIA bills. The Freedom Forum First Amendment Center has these special reports on the Courts, Electronic Access and the Congress, and the text of a speech by Lee Levine on privacy from the 2005 FOI Day Conference on its website. (3/18/05)

  • Access Reports’ Harry Hammitt on the Courts
  • ASNE Counsel Kevin Goldberg on The Congress
  • SPJ’s Andrew Schotz on Electronic Access
  • Lee Levine: Reconciling Privacy and Freedom of Information

Sunshine Week Response Overwhelming

The response from media around the nation to the Sunshine Week initiative has been overwhelming, with news and feature stories, editorials, columns, and editorial cartoons appearing in daily and weekly newspapers and news and special reports aired on television and radio stations in every state. Bloggers have weighed in on the public’s right to know as well. The Sunshine Week website is compiling a state by state report on the coverage. We've linked to the Sunshine Week site here and to three special reports we came across that we believe worth your attention.


New Alliance Formed to Press Open Government Case

Eight journalism organizations, including the Coalition of Journalists for Open Government, have joined in a new alliance promoting open government at the federal level. The Sunshine in Government Initiative seeks to educate the public about First Amendment issues and will lobby on open government issues. (3/10/05)

Two Add Open Government Sections to Their Websites

The Associated Press and the Project for Excellence in Journalism are adding sections on open government to their websites. AP's corporate website now has a Freedom of Information section listing information on AP's open government efforts in the various states and nationally and news about government access issues. The website for the Project for Excellence and the Committee of Concerned Jorunalists will add a new section on Press and State on Monday. It will feature items about open records and open meetings issues around the U.S. (3/10/05)

New York Bar Supports TV Cameras in Court

The New York State Bar Association filed an amicus brief with the Court of Appeals supporting Court TV's effort to overturn a state law banning cameras in the courtroom. The brief does not argues TV coverage should be permitted because it does not affect the rights of litigants or the outcome of trials. (2/25/05)

Judge Rules Reporters Can Keep Sources Confidential

A federal district judge in New York upheld the right to two NY Times reporters to maintain the confidentiality of their sources and said the Justice Department may not inspect their phone records to learn who the reporters talked with. Noting that "secrecy in government appears to be on the increase," Judge Robert W. Sweet said in a 120-page order that "secrecy may well be seen as the enemy of freedom when it conceals facts important to public understanding." He said a "free press has long performed an essential role in ensuring against abuses of governmental power.'' Sweet’s decision said the 1972 Branzburg v. Hayes Supreme Court decision gave reporters broad First Amendment protections. That opinion stands in stark contrast to a ruling a week earlier by a three-judge federal appeals court panel in Washington. It said the Branzburg ruling gave reporters little protection. (2/25/05)


Inside the Beltway

Wall Street Journal Asks Court to Unseal Leak Case Data

The Wall Street Journal and its parent, Dow Jones, asked that the federal district court in Washington DC to unseal eight pages of redacted information that special prosecutor Patrick Fitzgerald used to convince the court New York Times reporter Judith Miller should be jailed for contempt. The pages contained information that Judge David Tatel said in a concurring opinion demonstrated Fitzgerald had "met his burden of demonstrating that the information [sought from the reporters Miller and Mathew Cooper ] is both critical and unobtainable from any other source."

Homeland Security's FOIA Officers Pledged to Keep FOUO Data Secret

How much does it compromise a government employee who makes decisions on whether to grant Freedom of Information Act requests if he or she signs a non-disclosure agreement? The Project on Government Oversight raised that question after learning that two people in the Department of Homeland Security’s central FOIA office had signed the secrecy agreements, which call for punishment if For Official Use Only information is disclosed. DHS said employees could reasonably “safeguard potentially exploitable sensitive information, while also complying with the Freedom of Information Act." POGO’s reply, “gobbledy gook.” (11/2/05)

Senate's Secret Session "Not Best Way to Combat Secrecy"

The Reporters Committee for Freedom of the Press criticized Senate Democrats for going behind closed doors in their fight with the Republican leadership over the reported progress in an intelligence committee probe. It was only the 54th closed session of the entire Senate since 1929, according to Secrecy News. RCFP Executive Director Lucy Dalglish said more secrecy is not the best way to combat secrecy. (11/2/05)


Congressman’s Resolution Dies as He Waits for FOIA Request

Rep. George Miller, D-CA, the ranking member of the House Committee on Education and the Workforce, wanted information on wages and benefits to be paid to workers under Hurricane Kartrina reconstruction contracts. On Sept. 22, he filed a FOIA request with the departments of Labor and Homeland Security. On Sept. 27, he offered a House resolution requesting the information. A month later, the committee voted down his resolution, saying a House resolution isn’t required because the information is available under FOIA. Rep. Miller said he had not yet heard from either department, even though more than 20 business days had passed. The Administration’s disdain for information requests from members of Congress …is outrageous.” Rep. Miller said. (10/31/05)

Homeland Security Has a Plan, But Don’t Ask

The Department of Homeland Security is keeping its plan to protect the nation’s roads and bridges secret from state and local officials who have day to day responsibilities for protecting them. 9-11 commission member Slade Gordon ask the Senate Judiciary Committee, “What use is it if the people who have to adapt to it don’t know anything about its existence or what it says.” The plan, which Congress directed DHS to draft, is supposed to have set standards and risk-based priorities for state and local agencies to follow. (10/31/05)

New Fed Chair Might Run a More Open Bank

The Associated Press reports that Federal Reserve Chair nominee Ben Bernanke would likely run a more open and candid central bank by setting public goals on inflation and giving the public clearer signals on interest rates and economic conditions. That would help shape both public and investor reactions. Outgoing Fed Chairman Alan Greenspan believed in holding his cards close and never liked setting public inflation targets. (10/27/05)

9/11 Commission Calls Report Follow-up “Unsatisfactory”

In an update just issued, 9/11 Commission members have given Congress a grade of “unsatisfactory” on progress in implementing recommendations of their report on U.S. Intelligence lapses. Among the recommendations was declassification of the intelligence budget. That measure passed the Senate but the House and the President are blocking action. (10/21/05)

FEMA, Still Silent After All Those Jeers

FEMA continues on the path of most resistance to requests for information about the Hurricane Katrina recovery efforts. The Mobile Register says FEMA is telling reporters and others seeking contract information they must file a Freedom of Information Act request, a method notorious for its delays. Meanwhile, the Army Corps of Engineers is posting information on contracts it is letting on its website or providing the data upon request. And the Navy Sealift Command posted information on its controversial contracts to house evacuees on cruise ships. (10/19/05)

  • FEMA Claims Privacy in Keeping Evacuee Names Secret

Another “Misunderstanding” Bars Reporters from Scalia Speech

Supreme Court Justice Antonin Scalia took a very public trip, and well covered, to New York, mugging for the cameras, but back in Washington reporters and photographers were shut out of his speech to The American Council of Life Insurers. Scalia regularl;yt bars television cameras from most of his speeches. A court spokesman said the barring of print reporters was the result of a misunderstanding. (10/17/05)

Finding New Ways to Cut Through Government Red Tape

Federal Computer Week reports that an overhaul of the FirstGov web portal offers a prime example of how new technologies could making searching for government information more efficient and allow information seekers to dig much deeper into online data bases. Most government sites now rely on traditional technology but some agencies are now proactively seeking new commercial solutions to data search problems, the report said. (10/17/05)

Keep Homeland Security Advisory Sessions Secret, Industry Urges

A private industry group is urging Department of Homeland Security Secretary Michael Chertoff to exempt from federal open meetings requirements for 17 advisory councils who will be helping DHS made critical decisions on protection of the nation’s information technology systems. The councils themselves are mostly self-organized advisory groups that operate with some federal guidance. The working group said it wants to assure “continuous and open dialogue” between the councils and the agency. (10/17/05)

Some Push Back Along the Government’s Secrecy Path

Government secrecy continues to increase and the Washington press corps is at least partly to blame for perpetuating the culture of anonymity, Cox Newspapers Washington Bureau Chief Andy Alexander told a freedom of information conference of New England Editors. Alexander called the fight for government openness an “epic struggle” and said that there have been some gains because news organizations are now beginning to push back. “We are not winning, but we are starting on the road to not losing.” (10/17/05)

Citing Privacy, Agriculture Department Withholds Names of Subsidy Recipients

Over the past decade, the Department of Agriculture has awarded more than a billion dollars in subsidies to large cooperatives, which in turn pass the money along to individual farmers. But the department has refused a Freedom of Information Act request for the names of the people who actually get the money, claiming that “would constitute a clearly unwarranted invasion of personal privacy.” The Environmental Working Group, which filed the FOIA request, said it will appeal, and if necessary, sue. (10/11/05)

Courts Urged to Take More Critical Look at Secrecy Claims

The National Security Archive said in an amicus brief filed in support of FBI Whistleblower Sibel Edmonds that the federal courts need to take a closer and more critical look at the federal government’s secrecy claims. “Courts today simply are accepting the government claims that the need for secrecy of such information outweighs strong interests, including constitutional interests … We are asking courts to take a harder look." The brief goes on to argue that secrecy does not always serve the goal of protecting national security. (10/11/05)

NOAA Moves to Police Media Access to Scientists, Employees

The National Oceanic and Atmospheric Administration has directed its scientists and other employees to not answer any news media questions without first talking to a public affairs officer if the reporter’s question involves any potential crisis (like a hurricane?), national news, regulatory issues, research that might have a policy implication, or anything that might be controversial. The directive also instructs employees to brief the public affairs officer after any media contact so the PA can “provide additional information and context” if necessary. (10/7/05)

H’mmm, Maybe They Didn’t Use Google

The CIA, which has traditionally relied on secret operatives or high technology for its information, is opening a new unit to gather and analyze “open source” information – stuff that’s already public somewhere. But “open source” doesn’t mean available to the public, Security News reports. It’s director, Stephen Aftergood, submitted a FOIA request for the published statements of Osama bin Laden between 1994 and 2004. The CIA acknowledged that it had collected bin Laden’s comments but said the release would compromise “intelligence sources and methods.” (10/6/05)

McGraw Hill Ordered to Produce Data Gathered for Report

Ruling that "news gatherers are not entitled to an absolute privilege," Federal Judge Royce Lamberth told McGraw-Hill to turn over to the Commodity Futures Trading Commission information that had been provided to it by an energy company for inclusion in a monthly natural gas report. The commission believes the unnamed company submitted false information in an effort to manipulate prices. (10/5/05)


Secrecy at Centers for Disease Control Criticized

The Centers for Disease Control have come under criticism from scientists because of their tight control of information, Cox Newspapers reports. An article in the journal Nature focuses on the CDC’s failure to make available data it has collected on flu strains, which scientists say has slowed research on the viruses. Open government advocates has also criticized the CDC’s publication of an “Information Security” manual setting out 19 categories of unclassified information to be shielded. (10/4/05)

Judith Miller Agrees to Testify, Is Released

New York Times Reporter Judith Miller was released after 85 days in an Alexandria jail after she agreed to testify before a grand jury investigating the leak of the name of CIA operative Valerie Plame. Miller agreed after I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, personally released her from her pledge of confidentiality as a source of information. Libby, through his lawyer, said he had signed a confidentiality waiver more than a year ago but Miller’s attorney said it was not clear that earlier action was not coerced. (9/30/05)


SEC Pushes for Transparency, But Not Its Own

The Securities and Exchange Commission, which promotes corporate transparency, is having problems with its own transparency, Bloomberg News reports in a review of the agency’s performance under the Freedom of Information Act. The article quotes former SEC commissioner Edward Fleischman as commenting, `This is an agency that has never done very much disclosure about itself.” The article cites data in a CJOG report on FOIA performance of 25 federal departments and agencies. (9/30/05)

Court Rejects Fraud Claim in 1953 State Secrets Ruling

A three federal judge panel decided there must be an “obviously reasonable” and truthful interpretation of the original “state secrets” claim make by the U.S. government back in 1953 when it said the causes of a B-29 crash could not be disclosed in a lawsuit for national security reasons. Declassification of the documents has shown the cause was negligence of mechanics, crew and the base commander. But the court said the records, if disclosed at the time, could have revealed then-secret information about the equipment being tested on the plane and its mission.

DC Judge: Felon Privacy Rights Outweigh Public Right to Know

A federal judge in Washington said the “privacy interests” of illegal immigrants convicted of felonies outweighs the public interest in knowing whether the Justice Department has deported them as required by law. Judge Richard Leon rejected a Freedom of Information Act request from Cox Newspapers for Justice Department records on the felons. The newspapers had previously reported a number of similar incidents in Georgia in which immigrant felons were released from prison back into society rather than being deported. (9/29/05)

GSA Plans to Expand FirstGov Search Capabilities

The Government Services Administration says that it will spend $18 million to improve FirstGov, the federal government’s official portal. The website will be redesigned and search capabilities expanded, with images included. 9/26/05)

House Holding Hearings on Classified Information Leaks

The House Permanent Select Committee on Intelligence has held the first in a series of hearings on unauthorized disclosure of classified information, taking testimony from members of the intelligence community behind closed doors. At least two additional hearings, one of those closed, are anticipated. The committee chairman, Rep. Pete Hoekstra, R-Mich, said in a speech to the Heritage Foundation in July that he is concerned that there is “no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information.” He suggested that legislation may be needed to give the Justice Department “the tools it needs to identify and prosecute individuals who deliberately share classified intelligence.” (9/20/05)

  • Hoekstra Speech to Heritage Foundation

Records Show Navy Leased Plane Used for CIA Renditions

An obscure Navy unit leased two private jets used by the CIA to fly terrorist suspects to foreign countries for torture and interrogation, documents obtained by the Associated Press under a Freedom of Information request show. The planes, leased by the Navy Engineering Logistics Office, were used for what the CIA terms “rendition.” Italy has issued arrest warrants for 19 CIA operatives for kidnapping a Muslin clerk from Milan in 2003 and flying him to Egypt for questioning. (9/26/05)

Judge Demands Feds Let Him See DC Rail Safety Plan

First, the District of Columbia banned the rail shipment of hazardous materials through the city. In turn, CSX Transportation, joined by the federal government, sued to overturn the ban. U.S. District Judge Emmett Sullivan asked to look at the security plan developed by the railroad. The Justice Department replied that the plan is too secret for his unclassified eyes. Calling the response “offensive,” Judge Sullivan demanded to see the plan as proof it even existed. “I'm not going to rely upon the assertions of government lawyers." (9/22/05)

Pentagon Gags Two Witnesses at Judiciary Committee Hearing

The Senate Judiciary Committee’s hearing into the Pentagon’s ABLE-DANGER intelligence program and its withholding of information from the FBI on 9/11 hijacker Mohamed Atta was stymied when the Pentagon refused to allow several witnesses to testify. Defense Secretary Donald Rumsfeld said the department had offered to provide a classified briefing but would not participate in a public hearing.


Detroit Paper Wins Photo Release; Pick Them Up in Washington

The Detroit Free Press won its fight with the U.S. Marshals Service over access to photos of criminal defendants in the city’s U.S. District Court. But the federal court ruling said the photos could be released at the marshals Washington, D.C. office rather than in Detroit, and the service can take the full 20 days to process the requests under the Freedom of Information Act. The service had been providing mug shots a same day basis until last year when it stopped, claiming photos fell under the FOIA privacy exemption. (9/20/05)

FEMA Argues Privacy in Shielding Claims Records

The Federal Emergency Management Agency told a court in Florida that it is withholding the names of people who received federal hurricane damage funds after the state’s four 2004 hurricanes because their right to privacy outweighs the public’s interest in knowing how the money was spent – despite evidence, including grand jury indictments, of widespread fraud in doling out the many millions. FEMA made the claim in a brief contesting a suit brought by three Gannett newspapers in Florida. (9/20/05)


911 Commission’s Aviation Report Re-Released, with Fewer Redactions

The 911 Commission’s report on aviation failures, “Four Flights and Civil Aviation Security” was completed in August, 2004, months before the presidential election. It was not released until January, and then only with heavy redactions. Now, because of continuing pressure from the commission, there has been a “second review” and a new version with fewer redactions has been posted by the National Archives. It reveals, among other things, that officials were warned as early as 1998 that terrorists might try to hijack a commercial airliner and “slam it into a U.S. landmark.” (9/15/05)


Declassification Dispute Ends, 1963 Document Released

A rather innocuous one-page biography of one-time Italian president Giuseppe Saragat has been declassified after 40 years, ending a curious dispute within the Bush Administration. The Interagency Security Classification Appeals Panel had directed the document’s release a year ago. Then CIA director George Tenet, using the veto power given him in a March 2003 executive order, blocked the disclosure. The panel appealed; the White House failed to act; finally the new CIA boss, Porter Goss, declassified the document. Most amazing is that it was ever classified. (9/12/05)


Navy Sinks Lawsuit with State Secrets Claim

The federal government claimed a rarely-used state secrets privilege to quash a company’s claim of patent infringement. When Crater Corporation filed suit against Lucent Technologies to protect its patent on an underwater fiber optic coupling device, the Navy intervened to block discovery, saying the information probing could “cause extremely grave damage to national security.” An appellate court has now ruled that the state secrets privilege was properly asserted but that the trial court should not have dismissed the lawsuit. (9/8/05)

Are Environmental Planning Act Hearings Stacked Against Public?

A task force established by House Resources Committee Chairman Richard Pombo (R-CA) has held four hearings, purportedly on ways to improve the National Environmental Policy Act. But the testimony has been largely from industry interests who find NEPA requirements burdensome, OMB Watch reports. A number of citizens who sought to raise environmental concerns were told they could not testify. And after 200 environmentalists showed up to protest at the first hearing in Seattle, advance notice of hearings was kept minimal, OMB Watch said. (9/7/05)

NASA’s New E-Mail Policy a Blast Beyond Cyberspace

We’re mentioning The National Aeronautics and Space Administration new e-mail policy because we don’t want it to get lost in the shuffle. The NASA Headquarters “centerwide announcement” as reported in Secrecy News directs everyone to send any e-mails from the public to a central office, then forget about it. "You will not receive a reply that the e-mail has been successfully accepted, nor will you receive a copy of the response." (9/1/05)

Federal Judge: Let Detainees Decide If They Want to be Identified

A federal judge in New York, responding to an Associated Press suit, directed the Defense Department to ask Guantanamo detainees if they want their names made public. The Defense Department had redacted the names in turning over 558 transcripts of tribunal proceedings to the AP under an earlier court order. Defense argued they were protecting the privacy of the detainees, whose families might face death or serious harm if terrorist groups were unhappy with a detainee’s comments at the hearings. (8/31/05)

FEMA Says Hurricane Relief Records of No Public Interest

The Federal Emergency Management Agency has told a court in Florida there is little public interest in how it spend $5.5 billion in hurricane relief funds, despite fraud indictments and reports that some of the inspectors authorizing payments had criminal records. FEMA lawyers made the claim in court papers filed in a FOIA suit brought by the The Fort Myers News Press and other Gannett papers in Florida. (8/12/05)

FDA Rejects FOIA Request for Reports on Defibrillator Safety

The Food and Drug Administration has refused to make public safety information on heart devices that it receives annually from manufacturers. The agency claims the information is a trade secret. The New York Times, using the Freedom of Information Act, requested the annual reports on a defibrillator made by Guidant Corp. (8/8/05)

Investigators Focusing on Libby-Miller Conversation, American Prospect Says

The American Prospect reports that I. Lewis “Scooter” Libby has acknowledged to federal investigators that he talked with jailed reporter Judith Miller about Valerie Plame almost a week before columnist Robert Novak “outed” the CIA operative in a column. The article said the Libby-Miller meeting came during a week-long effort by Libby and White House deputy chief of staff Karl Rove to discredit Plame's husband, former ambassador Joseph Wilson, who had just written a New York Times opinion piece that said the Bush administration had misrepresented intelligence information to make the case for war with Iraq. (8/8/05)


Court Says Officials Calendars With Personal Items Aren’t Public

The appointment calendars of six U.S. Department of Agriculture officials are not public records because they contain a mix of official and personal items and were not required by the agency to be maintained, a federal district court in Washington ruled. A public interest group had sought the calendars in a search for evidence that the food safety officials had met with representatives of the meet and poultry industry. (8/5/05)

CDC Defines SBU with 13 More Acronyms

Secrecy News reports that the Centers for Disease Control and Prevention is the latest federal agency to spell out what it means by “Sensitive But Unclassified” information. Their definition Nostly embraces 13 other designators such as SASI, which has something to do with select agents, not bureaucratic response. The directive notes that a SBU designation on a document does not mean it should be withheld, just as the absence of a SBU designation does not mean a document should be released. The short version: review everything before releasing information. (8/2/05)

Despite Court Order, DOD Refuses to Release Abu Ghraib Photos

The Defense Department told a federal court that had ordered release of Abu Ghraib prison photos that it would not comply and promised to explain all to the judge in a sealed brief. The 87 photos and four videos in question are among the thousands of images taken by Specialist Joseph Darby, whose pictures of prison abuse prompted international criticism in 2004. The government said in a letter to Judge Alvin Hellerstein that the release, even with identifying features blacked out, could result in personal harm. (7/24/05)


Auto Owners Safer, Less Informed as Safety Boss Moves On

Jeffrey Runge, the administrator of the National Highway Traffic Safety Administration, is leaving for a new job as chief medical officer at Homeland Security. Auto industry officials credit him with a series of measures to make driving safer, but a number of consumer groups fault him for withholding critical safety information, due for release in the fall of 2004, from the public. (7/15/05)

OMB Watch Lawsuit Nudges EPA Into Release of Chemical Plant Data

After a FOIA lawsuit prompted by their two years of delaying, the Environmental Protection Agency has released information on chemical plant risk management plans to OMB Watch, a non-profit advocacy organization. The EPA had pulled the risk management information from its website after 9/11, saying it would repost the information in a new form “as soon as possible.” OMB Watch filed an FOIA request in 2003. It was denied and the appeal languished. In June, OMB Watch filed suit and EPA released the information without comment. (7/14/05)

Tax Court Reverses 20-Year-Old Policy Sealing Trial Decisions

Since 1984, the U.S. Tax Court has sealed reports of special trial judges, which come to them as recommendations. Their subsequent rulings, in more than 900 cases, have suggested the Tax Court’s final rulings concurred with the decisions of the trial court. But no one outside the court knew for sure. In March, the U.S. Supreme Court ordered the report in a Chicago case released and it showed the court’s ruling and the trial judge’s finding at odds. The high court called the sealing improper. Now, the tax court has reversed its policy and will make public all future trial judge decisions. (7/14/05)

Family Finds, Releases Censored Story on A-Bomb's Aftermath

The censored dispatches of World War II correspondent George Weller from Nagasaki shortly after the Aug. 9, 1945 bombing have finally been made public – not by the Pentagon but by Weller’s son, Anthony, who found the carbons after his father’s death, and recently released them to a Tokyo newspaper. The army censorship office had blocked their release, fearing the public reaction to Weller’s revelation and descriptions of widespread radiation sickness and death. (6/20/05)

ACLU Wins Release of More Abu Ghraib Photos

A federal judge in New York ordered the government to release to the ACLU copies of four videos and some 140 photos that were part of the collection that ignited the Iraqi prisoner abuse scandal a year ago. The ACLU, contending the photos would show the abuse was “not just the action of a few rogue soldiers” sued for the photos under the Freedom of Information Act. (6/6/05)

House Funders Critical of TSA, Handling of Sensitive Security Information

The House Appropriations Committee, in a report accompanying The Department of Homeland Security funding bill, criticized the Transportation Security Administration for failing to monitor the use of Sensitive Security Information designations used to restrict access to transportation security information. “TSA has not officially limited the number of TSA staff who can designate SSI documents, so in essence all TSA employees currently may designate a document as SSI,” the report said, adding that Congress would withhold $10 million from the Department of Homeland Security until department-wide policies and procedures are in place. “The Committee finds this situation completely unacceptable.” (6/1/05)

Congressman Asks Justice for Data on Reporter Subpoenas

Rep. Jim McDermott (D-WA) said he has filed a Freedom of Information Act request with the Justice Department asking for all records showing how many subpoenas have been requested and how many authorized for to obtain information from or about news reporters in the last four years. McDermott said he was concerned with the increase in reporter subpoenas and pressure to provide confidential information. The increasing pressure on journalists will most certainly lead to a decline in investigative reporting, threatening freedom of press and the public’s need, and right, to know. (5/26/05)

Election Commission Open Files Aren’t Public, Judge Says

A federal judge in Washington refused to order the Federal Election Commission to release any report it might have on a pending investigation of possible illegal corporate contributions to House Majority Leader Tom DeLay by Westar Energy. The FEC said it had no closed file on suchg contributions and District Judge Ricardo Urbina said the FEC is prohibited from acknowledging open investigations. The Citizens for Responsibility and Ethics said it would appeal. (5/24/05)

Five Sue to Obtain Records of FBI Monitoring

Five advocacy groups, including the ACLU and Greenpeace, have sued the FBI in an effort to obtain records on how it it monitoring anti-war and other political activities as part of its counterterrorism efforts. Requests for the records under FOIA were ignored. The suit claims all five groups have been the subject of FBI terrorism task force attention. (5/24/05)

Pentagon Pressure Results in Base Report Being Pulled

The report by the Overseas Basing Commission that was critical of Secretary of Defense Donald Rumsfeld was posted on the commission’s website, then pulled when the Pentagon complained. The Defense Department said the posting resulted in “unauthorized posting of classified information.” A commission spokesman, however, said the report was based strictly on public sources. (5/24/05)


Gonzales: Must Look at Impact of FOIA Reform Proposals

Attorney General Alberto Gonzales spoke at the National Press Club on May 20 and gave very generalized responses to a number of questions on the Freedom of Information Act and a shield law. He said his office is concerned about the burdens FOIA now places on the federal agencies and wants to understand what the impact of legislation proposed by Sens. John Cornyn and Patrick Leahy might be. He said he didn’t have an “independent” judgment on shield law legislation. (5/23/05)

Appeals Court Dismisses Cheney Task Force Suit

A federal appeals court has tossed a lawsuit aimed at forcing Vice President Dick Cheney to reveal the participation of industry officials on his energy policy task force. The Court of Appeals for the District of Columbia said the Sierra Club and Judicial Watch failed to prove the industry representatives served in any policymaking role. That would have required the records to be released. As long as the task force was strictly government employees, Justice Department lawyer Paul Clement argued, forcing the White House to produce task force information would be an "unconstitutional and unwarranted intrusion on the executive branch and its internal functions." (5/10/05)

The Bolton Files: A Chilling Impact?

Not surprisingly, the State Department has declined to release internal documents about clashes John Bolton, the nominee for U.N. ambassador, had with intelligence agencies. The reasoning offered by Secretary of State Condoleezza Rice is that the documents involve “internal deliberations” and making them public might have a chilling effect on future policy debates, the New York Times reported. (5/9/05)

Extra, Extra, CIA Discloses Its 1963 Budget

The CIA has steadfastly refused to make any budget information available, however minimal, however historic. But compelled by a lawsuit that pointed out the 1963 budget had been revealed 15 years ago, the CIA acknowledged it had been 550 million. The only other know CIA budget figure is for the year 1997 -- 26.6 billion. (5/9/05)

Off the Record, Press Secretary, Media Talking

A group of Washington Bureau Chiefs met with Presidential Press Secretary Scott McClellan in the opening step in a campaign aimed at ending off-the-record background briefings. Editor & Reporter reported that McClellan offered to halt the practice if White House reporters would stop using anonymous sources. McClellan later told E&P it had “misinterpreted” his comment that background briefings were part of a larger problem and couldn’t be dealt with in isolation. Either way, it appears some discussion is underway. (5/4/05)

Whistleblower Coalition Formed by Sibel Edmonds

With fired Whistleblower Sibel Edmonds in the lead, more than 50 current and former government officials have formed the National Security Whistleblower's Coalition, in no small measure for the security of the genre. They plan to meet with House and Senate lawmakers to offer legislative proposals. See our Pending Legislation session for summaries of pending Whistleblower legislation. (4/29/05)


Unclassified but Still Unavailable to the Public

The Boston Globe reports that a an increasing amount of unclassified information is being kept from the public by federal agencies using “50 to 60 loosely defines security designations that can be imposed by officials as low-ranking as government clerks.” The use of the designators is not new but had grown sharply in the last four years. (4/25/05)

Justice Told It Must Release Presidential Pardon Records

A federal judge has told the Justice Department it must disclose the names of presidential pardon applicants whose requests were denied – and the correspondence of citizens who supported their release. U.S. District Judge John Bates ruled in a suit brought by Washington Post reporter George Lardner, who is writing a book on pardons. Justice had invoked FOIA’s privacy exemptions in turning down Lardner’s records request. (4/16/05)

President Bush Backs Open Government -- and Security and Privacy

The record of his administration notwithstanding, President Bush told the American Society of Newspaper Editors he believes in open government. In response to a series of questions on transparency issues, he said “the presumption ought to be that citizens ought to know as much a possible about the government decision-making…I understand there is a suspicion that we are too security conscious. … I’m worried about things getting in the press that put people’s lives at risk.” He also said individual privacy, including his own, needs to be protected. (4/16/05)


Prosecutor Describes Plame Leak Probe as “All But Complete”

The Washington Post reported that the investigation into who illegally revealed the identity of CIA operative Valerie Plame is over, other than the questioning of the two reporters who have refused to testify. Special prosecutor Patrick J. Fitzgerald filed a motion with the court March 22 said the “factual investigation” other than testimony of reporters Judith Miller and Matt Cooper was “for all practical purposes complete” last October. The Post said that suggests he as indeed interviewed Robert D. Novak, whose column naming Plame set off the investigation. (4/8/05)

Secrecy “Hindering” Nucler Plant Protection, Scientists Report

Government restrictions on information sharing “are hindering progress” in making nuclear facilities less vulnerable, a committee of the National Academy of Sciences wrote in a new report. The committee also said that "sharing information with the public is essential … for sustaining public confidence in the [Nuclear Regulatory] Commission as an effective regulator of the nuclear industry, and for reducing the potential for severe environmental, health, economic, and psychological consequences.” (4/8/05)


Justice Drops $373,000 Search Fee, but Not the Fight

The People for the American Way Foundation won’t have to pay the Justice Department $373,000 to search their files for information on hidden court cases. But that doesn’t mean they’ll get the records. DOJ now says that many of the case files requested by the foundation have been sealed by the courts and the records are just not available. A new federal court hearing is set for April 21. (4/4/05)

If We Knew That, We Wouldn't Ask Department

When it became clear that many of the 1,600 Abu Ghraib photos shown a Senate Armed Forces Committee last year would not be made public, the Federation of American Scientists’ Steven Aftergood filed an FOIA request. He got bounced by the Defense Department to the U.S. Central Command, back to Defense, then to the Army's Freedom of Information Department, and on to the Army's Crime Records Center, which has now asked him to “provide the date, location, and names of persons involved in the abuse and we will attempt to conduct a search.” (3/31/05)

No Casket Photographs, Pentagon Told GI's Mom

The mother of a serviceman killed by sniper fire in Iraq returned to Arlington National Cemetery for the first time since her son’s burial last fall. Karen Meredith told Cox Newspapers she was still angry that the Pentagon had refused to allow her photograph the arrival of his casket at Dover Air Base for “privacy” reasons. She called it “disrespectful to families.” The Pentagon said, in effect, it was acting in the privacy interests of all families and that it discourages families from coming to Dover because “it’s not a parade ground.” (3/24/05)

Classification of Documents up 75 % in FourYears

The rate of classification has increased 75% since the start of the Bush Administration and topped 16 million classification decisions in 2004, according to the head of the government’s classification oversight office, J. William Leonard. “Safeguarding” of unclassified information is also increasing, says Jacques Gansler, director of the Center for Public Policy and Private Enterprise at the University of Maryland,. He said he’s found more than 50 sets of differing rules issued by government agencies to protect unclassified information. (3/11/05)

Demand for Public Documents on the Increase

The Newhouse News Service reports that demand for federal government information is at an all time high, with Freedom of Information Act requests and government web site hits up significantly. So, too, is the use of private sites that feature leaked or obscure government reports. One measure: The U.S. Government Printing Office's site, gpoaccess.gov, averaged nearly 34 million retrievals of government documents a month in 2004. That was up a million from 2003 and triple the number in 1998. (3/11/05)

Supreme Court Halts “Arbitrary” Tax Court Secrecy

The U.S. Supreme Court said in a 7-2 ruling that detailed reports written by special judges as recommendations to the U.S. Tax Court must be public. In the past, the tax court has issued public opinions but kept the recommendations on fact on which they are based confidential. The Supreme Court said the tax court’s interpretation of its own rules was “arbitrary.” (3/11/05)

Culture of Secrecy Hurting Security, Committee Told

“An unconscionable culture of secrecy has grown up in our nation since the Cold War. Secrecy has often acted as the handmaiden of complacency, arrogance and incompetence,” former 9/11 Commission member Richard Ben-Veniste told a congressional hearing on government overclassification. One example of that overclassification – the administration blacked out a section of one of the commission reports simply reported public testimony. Another witness said the Transportation Security Administration redacted from an FOIA request the numbers of FAA Information Circulators even though the numbers had been published in the best-selling commission report. Committee Chairman Rep. Christopher Shays, R-Conn., said in opening remarks that t "Cold War cult of secrecy remains largely impervious" to the current security imperatives. (3/4/05)


FOIAed File Shows FBI Conducted Investigations for the Late Sen. Thurmond

An FBI file obtained through a FOIA request shows a long-running, close relationship between the agency and the late Sen. Strom Thurmond, exposing, the Columbia State reports, “the usually concealed intersection of politics and law enforcement – a nexus where politicians enjoy access to confidential files on private citizens and groups.” The State obtained 600 pages of the massive FBI file, with 1,700 pages still to come. The file shows the FBI did many favors for Thurmond – a senator for 48 years – including secret investigations – and that returned the favors with critical political support. (3-3-05)

Government Asserting “State Secrets” to Block Suits

A “state secrets privilege” is being used aggressively by the Bush Administration to block court challenges, much to the dismay of civil libertarians and open government advocates, the Chicago Tribune reports. The privilege has no statutory predicate; rather it’s the outgrowth of a series of legal decisions involving national security claims. The government has asserted the privilege in several recent cases, one involving an FBI whistleblower, another a former CIA agent and a third involving a Canadian man seized in the U.S. and taken to Syria for questioning. (3/3/05)

Rep. Waxman Calls for Study of Unclassified Designations Closing Records

Arguing that there is growing evidence that the executive branch is using designations such as “sensitive but unclassified” as a mechanism to withhold information that should be public, Rep. Henry Waxman, D-CA, is urging a congressional study of the use of “unclassified designations.” In a letter to Rep. Christopher Shays, chairman of the Subcommiteee on National security, he cited five instances where federal departments had used a “sensitive” designation to “improperly” prevent release of information. They include redaction of information on CIA involvement in an inaccurate terrorism report to the Transportation Security Administration concealing the name of the person appointed to deal with the public as ombudsman. (3/2/05)

  • Earlier Report on Government Secrecy

Beyond the Beltway

Florida Supreme Court Rejects Limits on Courtroom Cameras

The Florida Supreme Court, one of the first state high courts to approve the use of cameras in the courtroom, rejected a proposed new rule which would have limited camera use to protect privacy rights. The new rule, proposed by a Florida Bar committee, had been opposed by both a broad range of media organizations. The justices offered no explanation in their unsigned opinion, instead citing a number of prior Supreme Court and appellate decisions in turning down the juror photography rule. (11/4/05)

NY Judge Will Allow Cameras in Most Cases Despite Rebuke

Saying that “anything that limits public access should be strictly interpreted,” a trial court judge in New York said he would continue to allow cameras in his courtroom in most situations despite a rebuke from an appellate court. Judge Patrick J. McGrath said the provision of state law cited by the appellate court applied only to proceedings where subpoenaed testimony is taken. (10/31/05)

And Now Let's Hear It for the Very Worst

The Illinois Press Association took 10 steps backward for Freedom of Information, naming the state’s 10 most egregious open records and open meetings responses in the past year. To no one’s surprise, none of the winners came forward to accept their “Worsty” awards. The association said the awards would be annual: “The abuses of these two access laws continue to escalate.” IPA President-Elect Scott Champion said the laws’ lack of teeth make it easy for agencies to be bad. (10/25/05)

By George, This Time It’s Jeb Behind Closed Doors

Jeb Bush appears to have taken a page from his brother’s operations manual. The Florida governor ignored his state’s Government in the Sunshine Law by meeting privately with 20 Republican members of the House and Senate on his plan to redo the public education system. “Not everything has to be open” he told two reporters barred from the meeting. Based on the comments of several legislators, the fine line the governor drew between the law and the meeting may be that he and the lawmakers didn’t discuss policy, just how to gain support for the policy. (10/21/05)

Open Records Update in Utah Would Close Many Records

A Utah legislative task force has recommended that lawmakers correspondence with the public be confidential and that government workers be permitted to disregard public records requests they consider “harassing or otherwise unreasonably increasing the workload or causing unwarranted expense.” The proposal appears aimed not at local gadflys but at developers who are trying to use the current open records law to “tie up staffs of small towns.” (10/21/05)

Public Interest Trumps Privacy in Kentucky Official's Assault Case

The Kentucky attorney general put it as gently as possible. He said Lexington police department incorrectly interpreted the state’s Open Records Act when it decided that the privacy rights of the vice mayor outweighed the public’s interest in knowing he was accused of assaulting a car salesman. A public official, the AG opinion said, “forfeits, at least to some extent, his privacy interest, and the public's interest 'in seeing that alleged criminal activity is thoroughly investigated and vigorously prosecuted without favoritism or bias' ... is correspondingly heightened.” (10/19/05)

Connecticut HMOs Told to Open Some Records to Public

Connecticut’s Attorney General says that HMOs paid by the state to treat low income residents must make their records of physician payments public. The governor has also directed release of the documents. The HMOs, which receive more than $600 million a year, argue that the amounts they pay doctors is proprietary information and that disclosure would open them to unfair competition from other HMOs. (10/17/05)

Federal Prosecutors in Rhode Island Withhold Age, Address of Accused

The U.S. attorney’s office in Providence, R.I., has decided to withhold from the public some personal information on those it charges with crimes. In a press release, the prosecutor’s office said its decision not to provide age and address of the accused is an effort to comply with court guidelines on individual privacy information in placed in court records. (10/17/05)

Georgia Supreme Court Upholds Cameras in Court

The Georgia Supreme Court overturned a superior court decision prohibiting the Savannah Morning News from photographing a local murder trial. The trial judge had said the cameras would invade the privacy of jurors and would be obtrusive. The high court disagreed but its order came more than half a year after the defendant had been convicted and sentenced to life in prison. (10/17/05)

“Privacy” Claim Discounted in Salary Request Dispute

A former state representative who sued the city of Dover, New Hampshire for records naming all employees who are paid more than $60,000 won in Superior Court. Judge Peter Fauver said the privacy interests of the employees were not legitimately at issue, but added that the public interest in accountable government would outweigh the privacy claim in any event. (10/17/05)

About Half Agency Record Denials Improper, Indiana Ombudsman Finds

Indiana’s Public Access Counselor says state and local officials wrongly withheld records or blocked public access to meetings in about half of the cases investigated by her office in the past year. A review by the Indianapolis Star of the 219 opinions issued in the past year showed that in 54 per cent of the cases the access counselor supported the citizen-requester. Although its not mandatory, in most instances, the agencies then released the information. (10/12/05)

Schwarzenegger Vetoes Reporter Prison Access Bill

California Governor Arnold Schwarzenegger vetoed two bills that would have allowed journalists to freely interview inmates at state prisons. The governor, who vetoed similar legislation last year, said the bills were unnecessary because reporters now have “wide ranging access to both prisons and inmates.” in fact, they don't. The bills would have allowed reporters to arrange one-on-one interviews and to take notes and tape record conversations, which cannot be done under existing prison regulations. (10/12/05)

State Loan Records Off Limits, Connecticut Officials Say

Officials at Connecticut’s Development Authority contend that records millions of dollars in taxpayer-financed loans to businesses, including those in default, are not public record. The New Haven Register reported that the agency apparently wrote off $4.8 million in loans in 2001-02, most without approval of the agency’s board. And while the state auditor said the records should be public, a spokesman for the Gov. Jodi Rell said other factors, such as stability of the businesses involved, might warrant confidentiality: “If the survival of a business and potential loss of jobs are at stake, other factors may need to be weighed." (10/12/05)

Washington State Citizens to AG: Agencies Thwart Records Requests

Washington Attorney General Rob McKenna is getting an earful from residents as he tours the state in a series of forums gathering information before writing public disclosure guidelines. People say it’s too easy for officials to delay and deny access to government information. They also want more information online and records indexed for easy reference. (10/12/05)

"Confidential" Complaint Law Doesn't Seem to Have Caught On

Missouri has a new law allowing people to file complaints with the state against insurance companies while keeping their identities, and details of their allegations, confidential. The stated purpose was to protect individual privacy interests – and thus stimulate more complaints. At the same time, of course, the law protects the companies from potential bad publicity. One month into the new scheme, the Associated Press reports, the number of complaints filed is actually down from a year ago. (10/10/05)

Texas Land Agency Agrees to Make Public Records on Energy Deal

The Galveston Daily News and the Texas General Land Office have settled the newspaper’s suite seeking monthly reports on natural gas deliveries and other documents. The newspaper filed its lawsuit in June claiming that the land office had been stonewalling its requests for public records related to the State Power Program. The newspaper has published a series of articles and editorials examining the State Power Program, a partnership in which Reliant Energy converts natural gas provided by the land office into electricity that is then sold to public agency customers, such as cities and schools. (10/10/05)

California AG: Provide Electronic Maps at Cost

California Attorney General Bill Lockyer said in a new opinion that electronic maps maintained by county assessors to show property boundaries are public record and must be made available for copying at minimal cost to requesters. Some assessors had been charging high fees for providing digital copies. (10/6/05)

UNC Presidential Search Concluded Behind Closed Doors

The University of North Carolina’s presidential search committee broke the state’s already lax open meetings law in selecting a new president to recommend to trustees, the Raleigh News & Observer reported. North Carolina law requires only that such boards announce when and where they’ll meet. Then they can talk privately if they choose. The search group, however, never announced their interviewing, conducted behind closed doors in a Charlotte hotel. They then recommended that former presidential (Clinton) Chief of Staff Erskine Bowles head the 16-campus university. (10/6/05)

Ball State: A Public Record? Depends on How You Define Public

Officials at Ball State University are parsing the public. They’ve decided to make evaluation forms on prospective provost candidates available to their public -- the faculty, staff and students of the university – but not to the general public. Any member of the campus community picking up documents on the provost applicants must sign an agreement not to distribute the information publicly. The university contends the forms are intra-agency documents, not public records. (10/5/05)

Eight Groups in Hawaii Join Suit to Block Private Meetings

Two Society of Professional Journalist chapters and the Big Island Press Club joined with five civic organizations in a suit to stop Honolulu City Council members from holding multiple one-on-one discussions to skirt the state’s open meetings law. The council used the scheme in developing a reorganization plan. (10/5/05)

NC Agency Gets a Disincentive on Withholding Records

The North Carolina Department of Commerce was ordered to pay $7,500 in legal fees to requesters seeking records on a $242.5 million incentive package that resulted in Dell building a computer assembly plant in Winston Salem. It may be the first time a state agency has had to reimburse legal fees in a records access dispute. (10/3/05)

Nashville Judge Closes Records in State Government Harassment Cases

An effort by the Nashville Tennessean to review workplace harassment case files involving the governor’s appointees was turned back by a county judge, who agreed with the state that the records are protected both by attorney-client and work produce privileges. The governor previously made available case files involving low level employees but balked when asked for records that might implicate his aides. The paper said two top aides reportedly named in harassment investigations had recently resigned. (9/30/05)

Paper, AP Sue Over Delaware Autopsy Records

The Wilmington, Del., News Journal and the Associated Press filed suit to force Delaware officials to make public autopsy records on a Rehoboth Beach businessman who died in a car fire. The state Attorney General’s Office has said the files are exempt from disclosure because they deal with active investigations. News Journal Editor David Ledford noted that the autopsy records have been open for many years, until this instance where the widow objected. (9/278/05)

Utah’s Legislature Considers Dark Side Legislation

Utah legislators, in a secrecy mode, are considering new legislation that would narrow the definition of a public record by requiring the content to show a “connection to the conduct of public business” and allowing legislators to protect their own memos as long as they aren’t intended to “establish policy.” They are also debating the merits of charging fees to let agencies make money on record-keeping. (9/22/05).


Pennsylvania Agency Claims Travel Records Are Proprietary

Pennsylvania’s student loan agency gives out more than $400 million in state funds each year. It has also spend almost $900,000 in the past five years on annual retreats, one in California’s Napa Valley. Now it is has asked a court to block efforts of three reporters to look at travel expense records. The agency contends that not only are those legislative records – and exempt from the Right to Know Law – because the majority of its board members are legislators but that the information is also a trade secret. We kid you not. (9/20/05)


Tennessean Sues to Get State Workplace Harassment Records

The Nashville Tennessean has sued the state for withholding sexual harassment records, including several involving complaints about officials appointed by the governor. The paper sought to review 10 recent complaints filed with the Department of Personnel. Documents were withheld in half the cases. (9/19/05)

Delaware AG: Autopsy Records an Open-Shut Case

The Delaware Attorney General’s Office says that although autopsy records are public information, findings on the cause and manner of death can be withheld on the basis of privacy. The unusual position was offered in a footnote in brief filed in a suit on a medical examiner’s refusal to release information on the death of a man found dead in a car fire. The AG’s office said the law declaring the information public should not be overturned, but added that officials aren’t required to release the information. (9/15/05)

Texas Mandating Open Records, Meeting Training

Starting in January, Texas officials will have to take a two-hour training course designed to get everyone on the public payroll up to speed on the state’s open meetings and records laws. There are a couple hitches in the legislation mandating the training:: Top officials can opt out, instead sending their public information officers, who are probably the most likely to already know and understand the law. And there’s no provision for a refresher, even for agencies that may have a poor compliance record. (9/15/05

Missouri Court Exempts Some Data in Public Housing Files

A Missouri appellate court held that personal information in state housing assistance files are exempt from the public records act. The information, including the social security numbers of the program beneficiaries, had been sought by a Kansas City real estate broker. The court said the Missouri General Assembly clearly intended to exclude individuals who " because of need, receive government assistance for shelter." (9/13/05)

California Legislature Approves Prisoner Interview Bills

The California Legislature approved two bills that override Department of Corrections restrictions on reporters seeking to interview prisoners. The bills allow reporters to take pens, pencils, notepads, and television cameras and radio equipment to the interviews. Both Gov. Arnold Schwarzenegger and his predecessor vetoed similar bills, arguing that the attention would turn criminals into celebrities. (9/9/05)

Georgia Supreme Court Asked to Allow Cameras at Police Trial

The Savannah Morning News and WTOC-TV asked the Georgia Supreme Court to either immediately allow cameras at the trial of a former police officer charged with sexual assault, or to delay the trial until a hearing on the cameras issue could be held. The trial court judge turned down the media request for cameras, saying the court room is too small and cameras would be a distraction. (9/9/05)

State Employee Addresses Not Public, Ohio Court Rules

Ohio’s Supreme Court ruled that the home addresses of state employees do not meet the definition of a public record and may be withheld from disclosure. The Columbus Dispatch, which had requested and obtained state payroll databases for nearly a decade, sued when it was denied the information in 2003. But the court said its ruling applied only to the addresses and it was not otherwise withdrawing from its liberal interpretation of the state’s open records law. (9/7/05)

Bankruptcy Examiner's Report Ruled Public Record

Two Massachusetts media organizations that sought release of a bankruptcy examiner’s report that purportedly contained scandalous and defamatory material. Former executives of Gitto Global Corp, which filed for bankruptcy, had challenged the release, but the 1st U.S. Circuit Court said not all material that might harm someone’s reputation triggers an exemption. (9/2/05)

Caller Times Sues to Get Records on Child Abuse Cases

Rebuffed in its efforts to get records on child abuse cases resulting in a fatality or near fatality, The Corpus Christi Caller Times filed suit to force the Texas Department of Family and Protective Services to release the information. The agency said it had released some records but was prohibited from law from doing more. (9/2/05)

City Told It Should Make No Law Affecting Church, Secretly

Jeff Bruette rents a warehouse in Middletown, Del. and he wasn’t thrilled when town fathers voted to allow two churches to operate in the same building. He asked for the meeting minutes but was told it all happened in executive session and those minutes were not public record. Bruette took his case to the Attorney General’s Office in a thoroughly researched complaint – and won. City hall has been told to turn over the records and admonished on closed meetings. (9/2/05)

In New York, It’s Tough to Even Get a List of Agency Records

Most New York agencies seem to have pretty much ignored a state law that requires them to keep, and make available to the public, a list of the records they keep. Two legislators said in a report that only 36 of 59 agencies they surveyed had responded and that the records lists that were produced were incomplete. The governor’s office said the state provides citizens more information than ever before and the legislators might consider subjecting themselves to the Freedom of Information Law. (9/1/05)

New Jersey Pulls Back New Rules Sealing Infrastructure Information

The New Jersey Attorney General’s Office, responding to public testimony and written comment, said it will redraw proposed new rules that would have closed records on critical infrastructure in the name of homeland security. Critics told a Domestic Security Task Force studying the new rules that they were too general and gave records custodians too much discretion to withhold information. (9/1/05)


Doggone, Governor Must Turn Over E-Mails

The Kentucky attorney general has told the governor he must release all e-mail messages sent to and from his personal government address. The 10-page opinion said Gov. Ernie Fletcher had not met the required “burden of proof” showing that e-mails to the "" site -- named after his deceased golden retriever -- were not related to official business. The governor’s office, in response to a Louisville Courier-Journal request, had withheld all but three e-mails received at the “sadie” site. (8/31/05)


FBI Terrorist Workshop Identified Several Campus Groups

FBI documents released to the ACLU under the Freedom of Information Act show that several anti-war groups and animal rights activists were topics in a 2002 law enforcement “Domestic Terrorism Symposium.” The ACLU said the documents imply the organizations were thought to be involved in terrorist activities. However, an FBI spokesman minimized the significance of the records, saying the groups identified by someone at the conference not from the FBI and were simply talked about. (8/31/05)

Wisconsin AG Sues Legislators Over Concealed Draft of Concealed Weapons Law

The Wisconsin Department of Justice has filed a public records act against two legislators who have refused to release a draft copy of a bill requiring the state to issue concealed weapons permits. The senators say the bill, supported by the National Rifle Association, is still a work in progress. The legal issue turns on whether the draft is, in fact, solely the work of the senators or whether the NRA or others have helped in the drafting. The AG’s office argues they and the public should have ample time to study and comment on the bill before there’s a vote. Similar legislation passed last year but was vetoed by the governor. (8/31/05)


$300,000 Judgment in Seattle Records Delay Case

For eight years, Seattle businessman Armen Yousoufian battled King County, first to get records on impact studies for the $325 million stadium built for the Seattle Seahawks, then on how much the county should pay in legal fees and penalties for stringing his request along for more than four years. A court has now awarded him $300,00, but Yousoufian is still not content. It’s not enough to discourage other public officials from withholding information, he says, and, besides, he still doesn’t have all the records sought. (8/29/05)

Judge Seals Records in 1982 Murder Case Involving Ex-FBI Agent

At the request of state prosecutors, a Circuit Court judge in Miami sealed more than 100,000 pages of records in a murder case against former Boston FBI agent John Connolly. accused of tipping off mob hitmen who killed a jai-alai fronton owner in 1982. Two documents submitted by prosecutors in support of the sealing were also sealed. The records were sought by two New England newspapers. The Miami Herald has filed a separate request for the records under the state’s open records law. (8/26/05)

Judge Grants ACLU Attorneys Access to Subway Search Records

A federal judge has told the city of New York it must turn over statistical information to the ACLU on its subway bag searching. Magistrate Judge Frank Maas agreed that the ACLU could not present its case that the search program is ineffective without access to the data sought. The court said, however, that it should be disclosed “for attorneys eyes only.” (8/24/05

North Carolina Legislature Bans Release of Autopsy Photos

The North Carolina Legislature, following Florida’s lead, banned the copying of autopsy photos and recordings. In both states, the law was a response to news media requests for the autopsy photos of race car driver and North Carolina native Dale Earnhardt, who was killed during the 2001 Daytona 500. A Florida newspaper, which believed Earnhardt died because of improper head restraints in his racecar, had requested the autopsy records to have them examined by an expert in head injuries. Florida subsequently passed a law exempting autopsy photos from the public records law. The North Carolina law bans release but does permit a requester to seek court review. (8/24/05)

Virginia's High Tech Board Takes a Closed Source Approach

Virginia’s $2.5 billion program to privatize its information technology system is kicking up a storm because the Information Technology Investment Board has refused to release information on three unsolicited proposals it has received to execute the transition. The investment board even rebuffed a request from the governor to release information, saying it could jeopardize the state’s bargaining position. (8/24/05)

Georgia AG Sues To Open Bowl Bid, NASCAR Hall Records

Georgia’s Attorney General sued two Atlanta business organizations in an effort to make public information on bids for the 2009 Super Bowl and for a NASCAR hall of fame. AG Thurbert Baker said the records on bids that commit the city to spending millions of dollars, are public and should be released. Both groups argue they are not public and not subject to the records law. (8/23/05)

Missouri House Members Pulling Personal Data from Website

Personal identifying information on Missouri House members, including home phone numbers and home addresses, will be pulled from the legislative website as a result of a new law. But the governor, Matt Blunt has urged administrative agencies to ignore the new legislation, which carries no penalties. He said he signed the bill only because of other, important provisions. (8/23/05)

San Bernardino Attorney Keeps His Counsel Confidential

The county counsel in San Bernardino believes his clients are the county officials, not the public, and so he’s declared his opinions confidential. In fact, he kept their secrecy secret until recently when the Board of Supervisors voted ago to release two of his memos. ( 8/22/05)

Keep Court Records Open, But Do It Carefully, Florida Panel Says

A Florida Supreme Court task force on court records recommended that the state’s established policy of openness be held “paramount” but that internet access be limited until system improvements are in place to handle privacy issues. The committee also recommended that lawmakers do a better job of regulating the data-collection industry, reexamine what records are confidential and prevent unnecessary documents from being entered into court files. (8/18/05)


Louisiana Appeals Court Opens Files in Civil Rape Case

A Louisiana Appeals Court ordered unsealed the records in a civil lawsuit that alleges that a former teacher and assistant principal raped a student but did order the names of the girl and her parents redacted. The court said the trial court overstepped its authority in attempting to bar The New Orleans Times Picayune and other media from reporting on the case. (8/18/05).

VA Sued Over $17,000 Fee for Hospital-Closing Records

The ACLU, acting on behalf of a Pittsburgh veterans group, has sued to force the Department of Veterans Affairs to waive a $17,000 fee it wants to charge for records related to the closing of a local VA hospital. The ACLU claims the records should be provided no charge because they fall within a Freedom of Information Act “public interest” provision. The VA said the coalition of veterans seeking the data is a “narrow, special interest” organization. (8/17/05)

Ohio Supreme Court Says Photos of Police Officers Can Be Withheld

The Ohio Supreme Court ruled that photos of police officers do not have to be released as public records under state law. The court said in suits brought by two newspapers whose requests for photos had been denied that the photos come under an exemption that shields records that identify a person as a law enforcement officer. The newspapers questioned whether the law might also allow departments to withhold names of officers or withhold incident reports but the court focused only on the photograph issue. (8/17/05)

Federal Judge in Indiana Agrees to Unseal Some Records

A U.S. district court judge in Evansville, Ind. said he will open portions of plea agreements that were sealed in a number of federal criminal cases. He also signed off on a plan that required the U.S. attorney’s office to post public notice when it files a motion to seal any future plea agreements. The deal had been worked out by federal prosecutors and the Evansville Courier and Press, which had protested the sealings. (8/15/05)

Make That the Double Super Secret Bowl

The City of Jacksonville spent more than $2.6 million in public money to bring Super Bowl XXXIX to the North Florida city but the host committee has accounted for only $600,000. Auditors say they’ve asked for but not received documents supporting the expenses. And the Jacksonville Business Journal was told by the committee that it was not subject to the state's public records law and would not produce the records. (8/14/05)


Rhode Island Federal Court Considering a Blanket Gag Rule

The federal court in Rhode Island is considering a blanket gag order for anyone involved in pending court cases as part of a broad revision of its rules of procedure. A host of media and non-profit freedom of information groups have filed protests against the proposed change, saying “a general presumption of openness and free and full disclosure of information should be the rule.” (8/15/05)


Colorado Opens Homeland Security Spending Records – Sort of

A Colorado law went into effect July 1 requiring that government officials make available homeland security spending records, redacting if necessary portions that deal with "specialized details of security arrangements or investigations." The Rocky Mountain News got very different responses when it sought records on the $130 million in grants to the cities and counties. Ten northern Colorado counties provided thick binders of information; the city of Denver a single page listing broad categories such as “voice communication – $12 million.” (8/5/05)

Alabama Sets Up Commission toStudy Records Law Reform

Alabama is setting up a 30-member task force to look at public records laws and practices and recommend new legislation. Sponsors said creation of the task force is “a logical next step” following passage of an open meetings law which goes into effect Oct. 1. The task force is due to report at the start of the 2006 legislative session. (8/3/05)

Wisconsin Reviewing Online Court Records Posting

Wisconsin, which has had its circuit court records online since 1999, is having second thoughts. An oversight panel of judges, clerks of circuit courts, representatives from the courts, district attorneys' offices, law enforcement agencies, the state public defender's office, state legislators and the media has been named to review the rules governing the records program and report to the state’s courts director after it concludes its discussions in December. (8/3/05)

NASCAR Negotiation Reports Missing from Public Record

NASCAR racing may be a noisy but the enterprise itself is involved in very quiet dealings with public officials, prompting the prosecutor in Kitsap County, Washington to ask the state’s attorney general to find out why economic studies and other documents about a proposed new speedway aren’t part of the public record. Prosecutor Russell Hague says county officials may have illegally given away work product to keep it confidential. (7/15/05)

Oregon Law Clears Access to Firefighting Operations

The Oregon legislature approved a bill giving reporters and photographers access to firefighting operations as long as they do not “unreasonably interfere” with the firefighting effort. (7/14/05)

Technology May Have Adverse on Utah Record Access

A legislative task force in Utah is wrestling with how the state’s public records law should apply to electronic records. E-mail messages is one of the big issues. From the discussions to date, it appears the task force will recommend excluding e-messages and that other records may become harder and more expensive to get than their paper counterparts. (8/1/05)

Town That Stonewalled on Tax Data,Admits Breaking Law

A couple in Barrington, R.I. began asking questions when their property assessment doubled. Town officials stonewalled. A year, a lawsuit and a complaint to the state attorney general later, the town has apologized, paid a fine and delivered the information. In telling the couple’s story, the Providence Journal asked online readers, “Have you had problems with getting access to public records?” and gave them the opportunity to both vote and comment. Online readers can view the results. (8/1/05)

Idaho: Burning Fields Are a Trade Secret

Some Idaho residents are doing a now-so-slow burn over a state Agriculture Department decision to withhold information on the burning of vast field burning that can cause serious respiratory problems. The agency says that seed-crop fields are a “trade secret” under the public records law, so location can’t be disclosed. The agency also took down information on planned burns from a website originally intended to notify people of approved burns. (7/29/05)

Court: No Blanket Exemption for Prison Medical Misconduct Records

The Washington Supreme Court said the names of both witnesses and staff members who have been disciplined in prison medical misconduct investigations are public record. The 6-3 decision came in a case brought by the editor of Prison Legal News against the Department of Corrections, which argued it had a blanket “law enforcement” exemption under the Public Disclosure Act. “The burden is on DOC to prove that the records are essential to effective law enforcement,” the court said, adding, “The exemption must be construed narrowly.” (7/24/05)

Public Records Requests on the Rise in Texas, Paper Reports

More and more people are seeking access to public records, both locally and across the state of Texas, the Corpus Christi Caller Times says in a special report on public record requests. Statewide, the increase is 20 percent. And the requests are getting more complicated and controversial. The newspaper also conducted an open records audit of 41 local agencies and found 53 percent complied with the law, although 83 per cent eventually released requested records. (7/24/05)

Reader Records Seized at Scottsdale Library

The Scottsdale Tribune reports that on three occasions last year, the Justice Department used grand jury subpoenas to obtain reader account information from area libraries. Federal prosecutors obtained the records under Arizona law, which requires a court order to take library records, not under less stringent Patriot Act provisions. The court orders suggested the records were sought as part of a mail bomb investigation. (7/24/05)

Taxpayer Suit Brings Down the Cost of Copying

Officials in Nash County, Tenn. have given in on the cost of copying public records rather than continue to fight a citizen’s law suit. Dennis Nielsen sued, arguing the county’s 25- cents-a-page fee was not the “minimal cost” mandated by state law. The county first dropped the cost to 15 cents but Nielsen wasn’t satisfied. Now it has dropped the cost to a dime and Nielsen has withdrawn his suit. (7/25/05)

Massachusetts Newspaper Association Seeks Tougher Meetings Law

The Massachusetts Newspaper Publishers Association has asked the state legislature to consider six bills that would put teeth in the state’s open meetings law. The measures would provide a civil fine of $1,000 against any board and $500 for individual members for meeting illegally and make it a misdemeanor with fines ranging up to $2,500 for knowlingly violating the law. (7/14/05)

Michigan AG's “Unreasonably High Cost” May Be His Own

The Michigan Attorney General’s Office sought to charge the Detroit Free Press $20 an hour to meet its request for records on the beer and wine industry. It said assembling the data would result in “unreasonably high costs,” using fee authorizing language in the state open records law. The paper disputed the charge because the assembling took only three hours. It sued, won, and is seeking legal fees. Now let’s do the public math. Cost of search and assembly: $60. Cost of reimbursing plaintiff: $30,000. (7/14/05)

Ohio Court Flips Coin Records in Favor of Public

The Ohio Supreme Court ordered that all transaction records related to a $50 million rare-coin investment made on behalf of the Bureau of Workers Compensation be made public. The court by a 5-2 vote rejected the argument that the records are “trade secrets” and thus exempt from the Public Records Act. The suit was brought by the Toledo Blade, which sought the records after reports that as much as $13 million might be missing. (7/14/05)


Texas AG Sues a Sheriff Who Refused to Release Records

Texas Attorney General Greg Abbott sued the sheriff of Frio County to force it to release records a San Antonio resident has been seeking for over a year. The records included information from the personnel files of jailers and from the applications of bail bond companies authorized to do business there. "The Sheriff's Office went to great lengths to develop excuses for not releasing information that is clearly public,” Abbott said. (7/14/05)

New Jersey Utility Uses CII to Keep Public Map Data Confidential

The Brick Township Municipal Utilities Authority did not want to provide an electronic copy of topographic mapping information requested by a local resident. So when the New Jersey Government Records Council said the data was public, just like the paper maps that could be purchased for $5, the utility asked the Department of Homeland Security to declare the data Protected Critical Infrastructure Information. Secrecy News Letter reports that DHS agreed on June 3. Now the utility can tell the citizen and the state, sorry, that information is confidential. (7/7/05)


Washington Supreme Court Toughens Rule on Sealing Records

The Washington Supreme Court tightened the state’s rule on the sealing of court records in a civil case, saying that all records used by a court in deciding a case must be open unless there is a “compelling interest” in confidentiality. An appeals court has earlier held that the drug company defendant in a medical damage suit had only to show “good cause” for keeping the trial information confidential. (7/7/05)

FOIA Records: FEMA Seeking Refund of 6,579 Hurricane Claims

The Federal Emergency Management Agency is asking thousands of Floridians to give return more than $27 million in hurricane aid paid out in the wake of the four storms that hit the state last year. The Ft. Myers News Press learned of the 6,579 repayment requests through a Freedom of Information Act suit for records of alleged overpayments. FEMA said many of the payback demands stemmed from private insurers ultimately compensating the victims. (7-4-05)


Portland Retirement Board Fights Release of Disability Records

Although police and fire disability records have been treated as public over the years, Portland, Oregon’s Retirement Fund trustees are now suing to block a request from the Oregonian for the names of those on disability, the amounts and whether the individuals reported outside income. The board’s claim: release would violate the privacy rights of those getting the payments. (7/5/05)

U.S. Asks That Fraud Case Documents Be Open to Public

In a Cincinnati case involving $24 million in allegedly fraudulent billings against a herbal supplements firm and its owner, it’s the federal prosecutor asking that the documents be unsealed. The government filed the request in U.S. District Court, saying documents seized in a raid on Berkeley Premium Nutraceuticals “should be open for the public to see. ” (7/5/05)

$8 Billion Spent, No records to Show for It

Congressional Quarterly reports that the federal government has given out about $8 billion in homeland security grants since Sept. 11, 2001 but that most states have laws or policies that keep citizens from knowing just how the money is being spent. The Department of Homeland Security won’t release information on how the states spend the money. And only 12 of the 34 states CQ had surveyed would disclose details of the funding. Where the information is withheld, officials say the information could be useful to terroists (6/28/05)

  • Cattle Prods and Chutes in Nebraska's Million

New York Legislature Agrees on Plan to Post Campaign Finance Reports

New York’s legislature reached agreement on a plan to have local campaign finance records filed electronically and put online. In May, the state board of elections declined to investigate reports of contributions that exceeded legal limits because compiling the paper data would be too time consuming. (6/28/05)

Portland Balks at Terrorism Task Force Secrecy Requirements

Portland, Ore. recently became the first city in the nation to pull out of a Joint Terrorism Task Force agreement with the FBI, a reaction to the law enforcement agency’s refusal to share information with elected officials. Some 30 local organizations had opposed the city's joining the task force because the FBI would grant security clearance only the to top police officials. (6/27/05)

Citizen-Run Development Corp a Public Agency, NJ Court Says

The New Jersey Supreme Court ruled that a non-profit Trenton development corporation set up by the city was subject to the state’s open meetings and records laws. Attorneys for Lafayette Yard Community Development Corp. argued it was incorporated by “public-spirited citizens” but the court said the mayor and council have absolute control over membership and it was "performing a public governmental function" by redeveloping "public land donated to it by a municipality and finances it with municipally guaranteed tax-free bonds." (6/20/05)

Court TV Loses Bid for Cameras in New York Courts

Court TV failed in its effort to get New York’s Court of Appeals to overturn a ban on cameras in the court. In a 7-0 decision, the state’s highest court said that is a legislative prerogative. The court said the ban on cameras was “not a restriction on the openness of court proceedings but rather on what means can be used in order to gather news." (6/20/05)

Greenwich Must Release Satellite Photos Despite Privacy Claims

Connecticut’s Supreme Court, in the first appellate level decision involving security and access to government geographic information systems, said the public has a right to aerial photos and other records of the Town of Greenwich. It said the town’s concerns about invasion of privacy weren’t specific enough to justify an exemption from the state’s open records laws. (6/20/05)


A Few Minnesota Court Records Will Make It to the Internet

Minnesota’s Supreme Court is the latest to wrestle with public records and electronic access and it’s decided to go slow, posting only some of the information that gets into court files on the Internet. “We can’t be troglodytes and keep our head in the sand,” said Justice Paul Anderson in announcing the policy that takes affect July 1. Court-generated documents like calendars, orders and opinions will be posted, but details in criminal cases will mostly be held back until there’s a guilty verdict. Documents in civil suits won’t be automatically available, but may be posted in high profile cases. (6/15/05)

Connecticut Governor Says He'll Veto E-mail Exemption

Connecticut Gov. M. Jodi Rell said he will veto a bill that exempts lawmakers’ e-mails from the state Freedom of Information law. The legislation was adopted by the General Assembly in the final minute of its 2005 session by a 145-2 vote in the House and then by a 31-5 vote in the Senate. "This is a brazen attempt to skirt the law," the governor said. (6/13/05)

New York House OKs Environmental Right to Know Act

An Environmental Community Right to Know Act has cleared the New York Assembly. It would require the state to provide free Internet access to information on hazardous substances released into the environment. The data would be searchable by zip code. A companion bill has been introduced in the Senate. (6/13/05)

The Price of Toll Road Information: A Non-Disclosure Agreement

The secrecy surrounding the early phases of a $184 billion, 4,000-mile network of Texas toll roads, rail lines and utility lines is giving many public officials second thoughts. The state’s attorney general has ruled that development and financial details of a March toll road contract must be disclosed and some San Antonio officials are balking at having to sign non-disclosure agreements to review and have any input on an area toll road proposal costing $1.3 billion. "This whole deal scares the hell out of me,” said one. (6/13/05)

Florida Supreme Court Asked to Revise Cameras Rule

Florida, which became one of the first states to allow cameras in the court in 1979, is considering modifying its rule. The Florida Bar Association has asked the Supreme Court to change its rule, which allows the judge to decide in individual cases bases on a need to control decorum and make sure proceedings are fair. The change would allow judges to factor individual privacy interests into the decision. (6/10/05)

Release of Autopsy Information Cleared by Delaware Court

A Delaware chancery court judge ruled that state law does not prevent the release of autopsy information, denying an injunction requested by the family of a man burned in a car in February to block the police chief from issuing a press release to “dispel certain rumors” about the case. (6/10/05)

The End of a Long Road to Get Traffic Safety Data in New York?

Nearly three years ago, New York’s Department of Transportation put the brakes on a Newsday request for data on the most dangerous intersections in the Long Island area and for information on what the DOT is doing about them, information the department must compile under federal law. The DOT refused, citing another federal law it said allows the state to withhold information that might expose it to law suits by accident victims. On June 9, the NY Court of Appeals, the state’s highest court, ruled 7-0 for Newsday. The DOT says it may appeal to the US Supreme Court. (6/10/05)

  • Bridge Repair Secrecy Challenged

Town Loses Attorney-Client Privilege Claim on Legal Bills

How far does attorney-client privilege extend? Not, a superior court judge in North Carolina has ruled, to the legal bills submitted by the counsel for the town of Kitty Hawk. The Outer Banks Sentinel asked for the records a year ago and sued when the town said refused. The town council then voted to waive the attorney-client privilege it had claimed and provided heavily redacted documents. The newspaper went back to court and won full disclosure. (6/10/05)

Agency Shaded Reports on Employees African Safari

The Virginia Department of Game and Inland Fisheries is seeing things more clearly these days, and so is the public, thanks to the efforts of retired optometrist Lee Albright. He and his wife, Paulette, won a lawsuit against the agency for overcharging for records. The court also said the agency had improperly redacted more than 70 pages of information, data that showed the department, despite claiming budget problems, paid more than $11,000 for an African hunting trip for three employees. (6/6/05)

Appellate Court Rules Internal Investigation Records Are Public

The internal investigation reports on a Portland, Ore. police officer who shot and killed a woman, touching off a racial protest, are public record, an appellate panel agreed. The city had refused to release the records to the Portland Oregonian. The three judges said the records "contain nothing that could cause a chilling effect of such magnitude as to outweigh the benefit to be reaped by allowing the public to determine whether a full, frank, and thorough investigation … occurred." (6/6/05)

Missouri Governor Urged to Veto State Employee Privacy Bill

The Missouri Press Association has asked the governor to veto a bill which directs state and local agencies not to post on the Internet the home addresses and phone numbers of public officials without their permission. The bill sailed through the legislature on its last two days with a single “no” vote. (6/6/05)

Online Journalist Says Customs Agents Sought Source of Unclassified Leak

Bill Conroy, who writes for Narco News, an online publication, said a story about an unclassified Department of Homeland Security memo that directed agents to sanitize terrorism-related case files resulted in two harassing visits by customs agents to try to learn his source. The first visit was to his home when he was not there, the second to the business publication where he works as a copy editor. When he refused to reveal his source, the agents tried to get his publisher to put pressure on him. He wouldn’t; the agents left. (5/31/05)


The Accidental Open Records Advocate

Walter Kuckes is a retiree on a mission. It began when he tried to pick up a public brochure on legal issues related to visitation rights at his courthouse in Avon, Minn. He discovered that getting public information isn’t always easy. That led him to visit all 87 county courthouses and begin a series of letter writing efforts that have made getting information a lot easier for his fellow citizens. The Minnesota Society of Professional Journalists recently gave him its Freedom of Information Award. The Star Tribune’s reader representative, Kate Parry, celebrates his journeys for open access. (5/31/05)

Texas AG Appeals, Then Argues Both Sides in HIPAA Dispute

Does state or federal law prevail in the handling of medical records? Last year, Texas Attorney General Greg Abbott issued an opinion saying that the state’s Public Information Act takes precedence over the federal Health Insurance Portability and Accountability Act (HIPAA). But the state’s Mental Health and Retardation Department declined a newspaper request for records, and a local court ruled in it's favor. The AG’s office appealed, and now finds itself arguing both sides because it also represents the department. (5/26/05)

Kentucky Appellate Court Holds Donors Names Can be Kept Private

A Kentucky appellate court ruled that the names of financial donors to a state university foundation did not have to be disclosed under the state’s open records laws. A circuit court had ordered the names any donors who had not requested anonymity disclosed; the University of Kentucky appealed. “The privacy interests of the donors …outweigh the public interest in disclosure,” the appeals court said. (5/24/05)

Police, Schools Flunk Pennsylvania Records Audit

A Pennsylvania audit of public records compliance conducted by the Associated Press, 50 newspapers and a television station found that in 30 percent of the tests, public officials refused to provide clearly public records, or unduly delayed release. More than 700 agencies were surveyed, with police and school boards the least likely to meet the law’s requirements – 40 percent of the police departments denied access to call logs or incident reports; less than half the school districts provided the superintendent’s employment contract on request. (5/24/05)


Records Request? Just a Minute, We Have to Check With Subject First

New York’s Racing and Wagering Board has agreed to stop a 30-year-old practice of checking first with the subjects before granting Freedom of Information Law requests for records. It took a state supreme court ruling to convince them the custom might be improper. There’s no record of how many requests were rejected in whole or part as a result of the consultations. (5/24/05)

Utah Agencies Pass Up an Easy "A" in Records Audit.

A similar records audit in Utah, covering 135 agencies, produced an overall “B” grade from the Utah Foundation for Open Government. The grading criteria were easy: minimal compliance with state law produced an “A”. It was the first such test of the state’s records law since it was adopted 15 years ago. Grading was based not only on production of records but on attitudinal and other factors such as asking for proof of identity (not required by the law) and charging for inspection of records. The poorest performance was by police and sheriff’s departments. Several received failing grades. (5/24/05)

22 Exemptions Added to Florida Open Government Laws

The Florida Legislature wrapped up its session by passing 22 new open records and meetings exemptions, but the state’s First Amendment Foundation said only one was problematic. That bill exempts from the public record hurricane damage claims insurance companies submit to a common “loss projection model” which is then used to set rates. The law will prevent homeowners from making comparisons on their damage settlements, said Barbara Peterson, president of the Foundation. (5/18/05)

Students Discover a Paranoid Bureaucracy Out There

The students at Brigham Young University who recently participated in a public records audit of state and local agencies said they were surprised at the paranoid reactions of government officials they asked for records. There reports tell of questioning that while polite went beyond the law. One student said a clerk “asked at least four times who we were with and why we wanted to see the log. She said we couldn’t see it, even with a written request, without a good reason.” (5/18/05)

There Is a Free Lunch, and Much, Much More

It took two years of asking and then a lawsuit, but the Detroit Free Press finally got the mayor’s credit card records. No surprise that the records showed Mayor Kwame Kilpratrick had been a free spender with taxpayer’s money – paying for immediate family and a baby sitter and a sister on trips – and nearly $12,000 for Super Bowl hotel rooms. In sidebars, the newspaper showed selective redactions from the $210,000 in credit card charges and copies of reimbursement checks to the city the day the records were finally released. (5/18/05)


Washington Governor Signs Records Law Improvements

Washington Governor Christine Gregorie signed two open government laws, one prohibiting records custodians from requesting requests as “overly broad” or too vague; the other allowing agencies to release information in complex requests in stages. The legislation also directs the Attorney General Rob McKenna to complete a model public disclosure rule for use by his and other agencies. McKenna wants to set up a records index to help the public find information and to develop software will allow easier computer searching by keyword. (5/18/05)

Kentucky Approves Exemption for “Homeland Security” Information

Kentucky lawmakers exempted information involving “homeland security” from the state’s open records and meetings laws. The new law, which passed both houses without opposition and was signed by the governor. It permits meetings to be closed to discuss “homeland security matters” and records to be withheld if they would “expose a homeland security vulnerability” and give the exact physical location of hazardous chemical, radiological, or biological materials.” 5/2/05

Open Government Gains in Three States

An Associated Press report summarizes new open government advances in three states. New York’s new law pushes records custodians to provide documents within 20 days of a request. Iowa added some teeth to its open meetings law and called for online posting of meetings. In California, Gov. Arnold Schwarzenegger agreed to make state public records more widely available to those who request them. (5/11/05)


Judical Panel Keeps Seal on Grand Jury’s Probe of $220 Million Contract

A three judge panel in Hartford ruled that testimony by former Gov. John Rowland and other grand jury witnesses about a $220 million trash authority deal with Enron Corp. can remain sealed. Newspapers sued to get the report after one judge reported that he found no evidence of criminal wrongdoing in the testimony. (5/9/05)

If You Can’t Get a Refund, Get Even

Even a state legislator, it seems, can suffer the sticker shock of a public records request. When Rep. Robert Ackerman, of Eugene, asked for some records involving Oregon’s higher education system, he got the 32 pages sought – and a bill for $800. His immediate reaction is not recorded, but his longer term response was to file legislation to force agencies to forewarn citizens if the bill is going to be more than $25. The bill has passed the Oregon House. (5/9/05)

Ohio Gun Law Debated at Freedom of Information Forum

Ohio's year-old law that keeps the public from examining concealed gun permits was debated by 17 law enforcement officials, civic activists, journalists and private citizens in the first of a series of Freedom of Information Roundtables sponsored by local newspapers and the Associated Press Managing Editors. The law does give records access and one newspaper has published a list of local gun owners The non-gun owning citizens wanted the right to know who had permits, owners said publishing names wouldn’t make anyone safer, and police said they were more concerned about people with guns and no permit. (5/9/05)

California Governor Directs Agencies to Open More Records

California Gov. Arnold Schwarzenegger said he has advised all state agencies “to give careful attention to the limits on statuary exemptions to the (California Public Records) Act and to seek executive approval from our office before withholding access to public records." His directive follows a letter from California newspaper publishers asking for more aggressive enforcement of the principles of Proposition 59, approved by voters last fall. It establishes a constitutional right of access. (5/5/05)

Energy Department Battles To Keep Yucca Mountain Complaints Secret

Three administrative law judges reviewing tens of thousands of pages of records on the Yucca Mountain nuclear waste repository appear to be leaning toward release of employee complaint records. The Department of Energy argues the records are a special set of files that are above and beyond in terms of level of confidentiality” and should only be released on a “need to know” basis under strict non-disclosure provisions. But one judge commented, “I’m off the reservation on this one.” (5/5/05)

St. Louis Police Redact Key Portions of Incident Reports

St. Louis police recently advised the Riverfront Times that the copies of incident reports they had requested would come heavily redacted, without victim and witness names or any description of the offense. When asked why the change in policy, police blamed their ongoing feud with the St. Louis Post Dispatch over records that paper sought. The department has a long history of withholding access to records and lost a suit in 2001 on internal affairs documents. (5/5/05)

New York Amends Records Law to Speed Requests

New York Gov. George Pataki signed into law legislation intended to provide public information to requesters more quickly. The law requires government to grant or deny a public records request within 20 days, or give the requester a specific date on which the information will be provided. The law exempts the legislature. (5-4-05)

Kansas Judge Releases BTK Documents Sought by Media

District Judge Greg Waller released five of seven documents that six media organizations in Kansas have asked a district court in Wichita to unseal in the BTK serial murder case. Six news organizations sued. Almost immediately, the prosecutors, saying attorneys for the defendant Dennis Rader agreed, moved to vacate the order. (5/2/05

Autopsy Records Should Be Released, Delaware AG Says

The Delaware Attorney General’s Office said autopsy records of a businessman found dead in his car are public record and should be released. The man’s wido has sued to block release of the records sought by several newspapers. Deputy AG Ann Woofolk said the information is not privileged and the widow had no legal right to prevent its release. (4/28/05)

A Look at One County Where Chemicals and Transparency Mix

Wisconsin may provide a critical model for transparency in the ongoing debate over secrecy in the name of security and openness to assure public safety. A 1986 state law known as Known as the Emergency Planning & Community Right to Know Act, drafted after the Bhopal tragedy in India, requires about 7,000 industrial operations throughout state to disclose hazardous chemical stockpiles and counties to maintain the information in a public database. The Milwaukee Journal-Sentinel reports on how it’s worked – well, officials say – in one county with 150 affected industrial operations. (4/26/05)

City Sues Newspaper Over Public Meetings Demand

The North Carolina Supreme Court is considering whether a local government can sue citizens who demand records or meeting access. The city of Burlington claims it needs the power to sue to determine its obligations under state law. It’s specific dispute is with the Alamance News, which had been threatening to sue the city over closed meetings. The city made a preemptive legal strike. The publisher, Tom Boney, says it’s already cost $42,000 in legal fees. (4-26-05)

Making Our Garbage Trucks Safe from Terrorists

Don’t ask us why the U.S. Justice Department was the one signing off on two new, air conditioned garbage trucks for the city of Newark, but the Associated Press reports the $300,000 purchase has come up in the debate over Department of Homeland Security funding for New Jersey, which will take a 33 percent hit this year while neighbor New York gets a 300 per cent increase. A thoughtful look at the issues and any question of accountability is made difficult by DHS secrecy and a New Jersey governor’s executive order that lets counties keep security information confidential. (4/26/05)

Oregon Appeals Court: Records Cost Must be Reasonable

An Oregon appeals court has ruled for an animal rights group seeking public records, saying the cost must be reasonable and sending the case back to a lower court. In Defense of Animals asked for records of care of animals at a university primate center. The center said the request involved 6,000 animals over a period of years and compiling and copying the records would cost $151,000. (4/25/05)

Court TV Files Suit to Permit Cameras in New York Courts

Court TV is challenging a 52-year-old New York law that prohibits the televising or broadcasting any court hearings that involve witness testimony. The suit argues that the law violated free speech provisions in both state and federal constitutions. The state has experimented with cameras in the courtroom on several occasions and each time commissions recommended they be permitted. But legislation never followed. (4/25/05)

Florida AG Says College Foundation Records, Meetings are Public

Charlie Crist, Florida’s attorney general, has issued an opinion saying the records of non-profit foundations that support state community colleges and universities are subject to the public records and open meetings laws. For years, most have acted as if their records and meetings were exempt. (4/25/05)

California Appellate Court Says Government Payrolls are Public

A California appeals court said the salaries of government employees are public records, rejecting a claim by the city of Oakland that it should be able to treat that information as exempt under privacy laws. The city was sued by the Contra Cost Times. (4/20/05)

San Diego Reverses Itself, Makes Official Calendars Public

With a boost from California’s new Proposition 59, the city of San Diego has now decided that the appointment calendars of the mayor council and other city officials are public record. The city has been operating under a 1991 court ruling that limited access to officials’ calendars. (4/20/05)

Wisconsin Plan for Toxic Chemical Security -- Disclose More

Waukesha County, Wisconsin has a different approach to dealing with toxic chemical security and safety concerns – it demands more disclosure to both emergency officials and the public than federal guidelines require. The result, says one local official, is that many facilities are maintaining a lower inventory of very toxic chemicals. Some have reduced the amount on-site while others have turned to substituting toxic chemicals with safer ones. (4/20/05)

Iowa Reexamining Law on Cost of Public Records

Iowa law says the fee for copying public records “shall not exceed the cost of providing the service” but a recent audit of compliance by Iowa newspapers showed state and local agencies have very different ideas of what that actual cost is. The audit has prompted the Iowa attorney general’s office to develop guidelines and the legislature to consider a new law, the DesMoines Register reported in an article detailing the possible changes. It also provided readers a list of available public documents they might find useful. (4/11/05)


Media Organizations File Brief in Apple Case in Support of Journalists

A dozen media organizations, including the Reporters Committee for Freedom of the Press, have filed a friend-of-the-court brief in a case growing out of a suit by Apple Computer against 25 unnamed individuals, believed to be its own employees, for leading information to websites. A judge ordered an internet service provider to provide e-mail records that could identify the source or sources. The brief argues that forcing disclosure of the website bloggers source or sources through third party subpoenas would "substantially impair journalists' ability to gather and report the news.” (4/11/05)

Are Donor Records Public? This One’s a No-Brainer

The Maine Attorney General is arguing in response to a law suit brought by Blethen Newspapers that medical examiner documents dealing with brain-harvesting are not public record. Four lawsuits have been filed by people who claim they did not consent to having their deceased relatives included in a brain donor program. The AG cites both privacy and a possible criminal investigation for withholding the records. (4/8/05)

Bids Must Be Public Before Deal Closed, California Court Rules

A California appeals court ruled that bid proposals become public as soon as all competitive proposals have been filed. The Los Angeles Airports Department had refused to release information on hangar lease proposals until it had completed negotiations with the successful bidder. The court said “the public has a significant interest in knowing” before the deal is done, whether the city “has afforded any favoritism or advantage to certain individuals or entities” and a right “to point out possible errors or omissions or simply offer their perspectives.” (4/8/05)

Newspaper Sues to Unseal Records in Judicial Bribery Case

The Biloxi, Miss, Sun Herald has asked the U.S. District Court in Jackson to unseal records in a judicial bribery case that involves a state supreme court justice, two former judges and an alleged scheme to bribe judges to obtain favorable decisions. At least 27 pleadings filed by both prosecutors and defendants in the case have been sealed. The case goes to trial May 7. (4-8/05)

911 Tape of Police Shooting Ruled Public Record

The South Carolina Supreme Court said the tapes of a 911 call made during a fatal police shooting were public record and should have been disclosed, despite a city of North Charleston claim they were evidence in a separate criminal trial. The Charleston Post and Courier sought the tape after a prosecutor said it convinced him not to charge police, who shot and killed a man holding four others at gunpoint in a video store. A store clerk witnessing the incident made the 911 call. (4/6/05)

It’s Not the $1.50, It’s All About Justice

Dennis Nielsen wants to know what his public officials earn and so every year the Nashville, NC man files a public records request for local government payroll records. This year, he got 81 pages from the city for nothing, then Nash County asked 25 cents-a-page for the six pages it turned over. That led to his suing the county, claiming their fee was arbitrary and excessive. “They use this as a way to discourage you.” He said his suit was about justice, not money. (4/6/05)

Maine Throws the Dice for Partial Privacy

Personal privacy seems an unlikely barricade to putting up a gambling house, but it became a go-no go issue for the developer of a casino in Bangor, who said he wouldn’t proceed if information on employees, such as their criminal records, became public record. The state legislature has now passed, and the governor signed, a compromise bill that provides for disclosure of information about the company and its employees if it is available from other government sources, including the courts, but keeps other personal information private. (4/4/05)

Texas Considering Reporter’s Shield Law

Saying, "We are on dangerously thin ice," Texas journalists have overcome years of ambivalence and are pushing for a state law that allows reporters to shield their notes, tapes and identification of sources. Similar bills have been file din both the Texas Senate and House and would give journalists a qualified privilege for the protection of confidential and non-confidential sources and work product. (4/4/05)

Vermont Legislature Limits Legal Fee Recovery in Records Cases

The Vermont Legislature approved a law that requires public agencies to pay legal fees in public records cases only if a court finds they “knowingly and unreasonably” withheld the records. Media organizations had pressed for attorney’s fee recovery anytime a requester won a legal battle for access, arguing that a lack of good faith is all but impossible to prove. (4/4/05).

8 Arrested in Florida for Misuse of Public Records

Florida’s Department of Law Enforcement arrested eight people for posing as reporters to illegally obtain traffic accident reports from police departments in Palm Beach, Broward and Dade counties. A Florida law, aimed at insurance fraud schemes, restricts access for 60 days following an accident. The information was being used to solicit victims to go to medical clinics and auto body shops to collect money on fraudulent claims. (3-30-05)

Missouri Appeals Court Opens Juvenile Court Hearing in Felony Case

A Missouri appellate court ruled that “adjudicatory” hearings in juvenile court must be open to the media in some circumstances, although the court offered no definition. A family court judge had closed a hearing on a 12-year-old girl charged with murder of a younger sister at the family’s request. The appeals court said Missouri law provides for public access if the child is accused of conduct which, if committed by an adult," would be considered among the top two classes of felonies. (3/30/05)

Alabama Gets A New Open Meetings Law

It’s taken 90 years, but the State of Alabama finally has a law requiring government meetings at all levels to be open to the public. Alabama adopted one of the first open meetings laws in the nation back in 1915, but it was mostly a statement of principle, and court decisions over the years didn't help open government advocates. The new law provides for a $1,000 fine but it still allows public bodies to vote themselves into executive session. (3/16/05)

FOI Education Bill Referred to Summer School

A Tennessee legislator who thought it would help citizens to have someone in every state and local agency schooled on the public records law is getting an education of sorts. His bill has been sent to a legislative summer study committee. “There are a lot of forces out there,” said Rep. Jimmy Eldridge, noting the Sheriff’ Association and Municipal League among them. (3/29/05)

Put Most Court Records Online, Florida Study Group Urges

Most court records should be made available to the public via the Internet, a commission created by the Florida Supreme Court to study the issue has recommended. But acknowledging privacy concerns, the commission suggested three exempting three broad categories of records: divorce, juvenile and probate, and photographs of victims and of injuries. (3/29/05)


Montana Court Opens Administrative Meetings

Montana’s Supreme Court justices said their weekly administrative meetings would be open to the public. The sessions have been private since Montana became a state. The action came one week before a hearing on a bill passed in the state senate to force those meetings to be open. (3/23/05)

Four Newspapers Sue FEMA for Access to Disaster Aid Records

Four Florida newspapers have sued the U.S. over the handling of disaster relief after last year’s four hurricanes. The South Florida Sun-Sentinel filed a federal lawsuit to force the Federal Emergency Management Agency to release of government records on the distribution of millions of dollars in disaster aid following last year's four hurricanes. Three Gannett-owned newspapers, the News-Press of Fort Myers, Florida Today in Melbourne and the Pensacola News Journal, sued both FEMA and its parent agency, the Department of Homeland Security. for similar information.


Privacy Doesn’t Shield Names of Political Appointees

The Massachusetts Supreme Judicial Court, in a case involving the release of the names of reserve sheriff’s deputies, said that any “any constitutional protection of individual privacy does not insulate the disclosure of the names and addresses of those who have applied to, and been appointed by, a public official, regardless of the scope of their subsequent responsibilities." (3/11/05)

NC Considering New Laws on Industry-Lure Records

Government officials have long argued that they must negotiate incentives luring new industry in private. Two bills being considered in North Carolina accept that argument but require that the incentives become public once the deals are announced. The legislation was introduced after two media groups sued the state Commerce Department for withholding information on negotiations involving Dell, Merck, and Boeing. (3/7/05)

Opening the Appointments Calendar Door in California

Every journey begins with a single request department. Shortly after voters adopted an open government constitutional amendment last fall, the California First Amendment Coalition asked the new governor, Arnold Schwarzenegger, to make the calendar of his appointments public. In January, he agreed, reversing a long-standing policy of California governors. Since then, 10 other top state officials have turned over their appointment calendars when media organizations asked for them. (3/2/05)

9-1-1 Tape Itself a Public Record, Ohio Supreme Court Rules

Ohio’s Supreme Court said 9-1-1 calls are public record in any form and must be released. The Columbus Dispatch had asked for the tape of a call related to a murder. The prosecutor allowed a reporter to listen to the tape and offered a transcript but would not copy the tape. (2/28/05)

Laws and Regulations

Rep. Pence: Senate Is Key to Shield Legislation

Rep. Mike Pence, R-Ind., told a conference of newspaper association managers the House will hold a hearing on his reporters shield bill before the end of the year. He said he's hopeful teh bill will pass in the current session but said the key is what happens in the Senate, where there is a companion bill filed by Sen. Richard Lugar, R-Ind. Pence said the bill is more about protecting the public than the press. "This is about the public's right to know, this is not about protecting reporters." (11/9/05)

Bill Filed To Force Post Katrina Environmental Hazard Reporting Filed

Rep. Cynthia McKinney, D-GA, filed a bill (HR 4139) to require the Environmental Protection Agency to develop and make public a comprehensive environmental sampling and toxicity assessment of the hurricane ravaged Gulf Coast. The bill notes that there were in Katrina’s path 466 facilities handling large quantities of dangerous chemicals, 31 hazardous waste sites, and 16 superfund toxic waste sites. It notes that three of the waste sites were flooded and 170 drinking water facilities destroyed or compromised. It calls for a pro-active information to alert people in the region on public health and safety threats. (11/1/05)


We Can Neither Confirm Nor Deny the Winner of SEC Lawsuit

A stock analyst who combs Securities and Exchange Commission records for indications of investigations it has pending won a partial victory to get more data from the agency under FOIA. A U.S. District Judge in Minnesota ordered the SEC to process 10 pending requests. But the judge balked at directing the agency to stop giving the analyst, John Gavin, a so-called “Glomar” response in which it neither confirms nor denies the existence of information. The government saw the ruling as a victory because it could continue to keep secret the fact of an investigation. (10/31/05)

Step Up Information Sharing, Bush Says in Executive Order

President Bush has signed a second Executive Order) directing governmentagencies to do a better job of sharing information. The new order, 13388, also calls for setting up an Information Sharing Council to provide oversight. However the order says nothing about over classification of information, which was at the heart of the provisions in last year’s intelligence bill that lead to the executive order. The order asks agencies to give information sharing their highest priority. (10/26/05)

Appeals Court: Don’t Let Security Measures Jeopardize Fair Trial

The 2nd U.S. Circuit Court of Appeals said federal courts need to more closely supervise the U.S. Marshals Service to make sure it is not restricting public access in the name of security. While upholding the decision in a criminal case, the appeals court said, "We believe the district court erred in assuming that a defendant's Sixth Amendment rights cannot be violated unless a court itself restricts courtroom access." (10/25/05)

U.S. Appeals Court to Federal Judges: Stop Secret Trials

Even as it upheld the conviction of a Columbian drug boss, the federal appeals court in Atlanta cautioned the U.S. District Court in Miami to stop holding secret trials. And the interim U.S. attorney said his office would no longer be party to secret court cases. The convicted drug lord, Fabio Ochoa, had claimed in his appeal that the federal court in Miami used secret dockets to shield prosecutions of possible defense witnesses. He cited one 2002 case in which another Colombian drug dealer was convicted and imprisoned in complete secrecy. (10/21/05)

Also Kept Secret in 2005, 106 New Inventions

There are now 4,915 inventions on file at the U.S. Patent & Trademark Office that are officially secret. 106 new secret patents were added this year and the secrecy was lifted on 76 others. Most of the new patents are sponsored by defense agencies but about a third this fiscal year were “John Doe” filings. (10/17/05)

HIPAA Used to Keep Public Health Citations Sealed

How do you stretch a law? Cincinnati provides a lesson in a brief filed in the Ohio Supreme Court defending the Health Department’s decision to withhold public health citations issued against owners of buildings where a child has been found to have high levels of iron in his or her blood. The Health Department cites HIPAA, which mandates that medical records of patients be kept private. No medical records are included in the citations but the city says, "It is reasonable to believe that (the records') disclosure could facilitate the identification of the individual children who were tested." And that, it argues, would violate HIPAA. (10/12/05)

Sen. Lugar: Shield Bill Probably Doesn’t Cover Bloggers

U.S. Sen. Richard Lugar, R-Ind., co-sponsor of a shield law now being considered by Congress, told the Inter American Press Association that bloggers would “probably not” be considered journalists as the bill is now written but he added, "As to who is a reporter, this will be a subject of debate as this bill goes farther along.” The bill defines a “covered person” in terms of entities that disseminate information and their employees and contractors. (10/11/05)

Tighten Use of SSI, Congress Tells Homeland Security

Congress has directed the Department of Homeland Security to both clarify and narrow its use of the designation “Sensitive Security Information” in safeguarding unclassified records. SSI is used by the Transportation Security Administration to protect information related to all forms of transportation. When so designated, it is exempt from FOIA. Secrecy News called the action “a rare defense of public access to government information” The order, in a conference report accompanying the department’s appropriations bill, said it was prompted by “insufficient management controls.” The provision was initially offered in the House version by Rep. Martin Sabo (D-Minn). (10/3/05)


Sen. Specter, 6 Others File TV Cameras in Supreme Court Bill

Seven senators led by Judiciary Committee Chairman Arlen Specter (R- Pa) and ranking member Patrick Leahy (D-Vt) have filed a bill (S 1768) to allow the televising of Supreme Court proceedings. Specter said the court’s failure to permit TV cameras on its own volition necessitated legislation. “the Supreme Court of the United States holds power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual “super legislature,” he said. “The public has a right to know what the Supreme Court is doing.” The other sponsoring senators are George Allen (R-Va), John Cornyn (R-Tx), Russ Feingold (D-Wis.), Charles Grassley, (R-IA) and Charles Schumer (D-NY) (9/27/05)

  • Specter's Comments in Introducing Bill

EPA Decides to Downgrade Its Toxic Release Reporting

The EPA has decided to modify its Toxic Release Inventory, for the past two decades considered one of the most valuable government reports on environmental emissions, by allowing companies to report less information and by publishing the report, once annual, every other year. Sen. Jim Jeffords, I-Vt, called the move a “frontal assault” on the emissions monitoring program. (9/22/05)

U.S. Gun-Tracking Records Aren't Public, Court Says

Federal records on gun sales are no longer public, a federal court in Chicago decided, citing an obscure provision in a 2005 federal appropriations bill, and possibly ending a running battle by the City of Chicago to take action against gun makers, distributors and dealers whose marketing it believes violates a city gun possession law. Congress added the provision to its Consolidated Appropriations Act of 2005, making the records “immune from legal process.” The effect is to permit access to the gun-tracking data of the Bureau of Alcohol, Tobacco, Firearms and Explosives only for law enforcement purposes. (9/20/05)

Perhaps, in Name of National Security, We Shouldn’t Be Telling You This

The whacky world of the USA Patriot Act played itself out at a federal court hearing in Bridgeport, Ct. as two unnamed librarians for an unidentified library watched from a hidden location outside the courtroom as the government told the presiding judge she didn’t have sufficient security clearance to be shown relevant evidence supporting the government’s argument for secrecy. The librarians are challenging a “National Security Letter” under which the FBI, without a court order, has asked for library records. The Patriot Act prohibits the librarians from telling anyone, including Congress, which is considering extending that provision in the law. Among other things, the government argued that gag wasn’t prior restraint. (9/1/05)


NRC Now Using "Mosiac" Theory in Safeguarding Information

The Nuclear Regulatory Commission’s new guidelines on handling of security information create a new FOIA exemption for otherwise unclassified information by using the “mosaic” theory, the Society of Environmental Journalists reports in its latest newsletter. While the guidelines on one hand call for closer observance of FOIA guidelines on what information may be released, they expand the safeguarding to otherwise harmless information if it might pose a security danger when combined with other data. (8/25/05)

NARA Posts New Rules on Declassification

The National Archives proposed a new rule on declassification of national security information to bring its policy in line with the President’s March 2003 executive order, 12958, that extended automatic declassification dates and gave the White House new reclassification authority. The NARA posting offers a Q &A that outlines the new policy. Secrecy News noted this response on the question of reclassification: "An agency or an entity within the Executive Office of the President that solely advises and assists the President, may ask NARA to temporarily close, review, and possibly reclassify or restore the classification of White House-originated information that has been declassified and previously released." (8/17/05)

FOIA Reform Draws Support from Conservative Leaders

Eight conservative leaders have endorsed the OPEN Government Act designed to bring changes to the implementation of the Freedom of Information Act, The Heritage Foundation’s Mark Tapscott reports. The eight sent a letter of support to Sen. John Cornyn (R-Tx), the bill’s lead sponsor saying that as government grows ever larger, acces to information becomes more important. FOIA, they said is today “too often abused or ignored by government employees at all levels.” (8/17/05)

Sunshine in Litigation Act Filed to Limit Sealing of Records

Rep. Herb Kohl (D-Wisc) filed a “Sunshine in Litigation Act” (S 1348), saying he wants to assure that important health and safety information is not kept from the public through the sealing of federal court files. The bill requires that before sealing court documents, a court must first find that the public’s interest in disclosure is outweighed by public health and safety needs. It puts the burden of proof on the requester and requires any protective order be narrowly drawn. It also mandates a separate finding to keep information sealed after the case is concluded.

Fishermen Want to Keep Their Catches Secret

Fishermen may still tell tales, however tall, about the ones that got away, but those who make it their living would like to catch information to be a trade secret. The Society of Environmental Journalists reports that the industry is angling for a modification of the Magnuson-Stevens fisheries act to seal now-public aggregate data from reports of observers who go to sea on fishing vessels and collect information on “bycatch” unintentionally hauled in by netting, many of them marine species that are the focus of conservation programs. (7/14/05)

Political Odd Couple, Diverse Coalition Push for FOIA Reform

An unusual coalition of advocacy groups are supporting the efforts by a political odd couple to improve implementation of the Freedom of Information Act, the Washington Post reports. New legislative proposals include creation of an ombudsman to act an as independent arbiter. (7/12//05)

At Last, Declassification Board Gets Start-Up Funding

For five years, a board established by Congress to review policies and procedures involving the declassification of government documents has waited for the money to start its work. The House has now provided $1 million for the Public Interest Declassification Board as part of the 2006 Defense Appropriations Act. (6/24/05)

NRC Rule Could Provide Qualified Public Access to Classified Data

The Nuclear Regulatory Commission, anticipating an upcoming hearing on operation of the radioactive waste repository in Yucca Mountain, Nevada, has published a final rule in which it says it will allow access to classified information on a “need to know” basis. The rule sets out procedures by which environmental groups that might participate in the hearing could seek necessary security clearance. The NRC originally issued the rule last December, then withdrew it when seven environmental groups objected. The final rule is unchanged from the original. (6/15/05)


Senate Unanimously Approves FOIA “Impact Statement” Bill

The Senate unanimously approved a bill which requires that new legislation explicitly identify any exemption it would create from the Freedom of Information Act. The bill, S 1181, is one in a series of FOIA reform measures sponsored by Sens. John Cornyn (R-Tx) and Patrick Leahy (D-Vt). Cornyn said that Congress should consider any proposed exemption "in the open and light of day" and the unanimous passage "makes clear that the Senate understands the need for that reform." (6/24/05)


NRO Uses “Operational File” Exemption to Stifle FOIA Requests

The National Reconnaissance Office, which designs and builds satellites, was granted a FOIA exemption for its “operational files” in 2002. A 2003 agency memo interprets that exemption to broadly include budget, policy and planning data. NRO recently cited the exemption in turning down a request from the Federation of American Scientists for unclassified portions of its budget report to Congress, a report similar to one the NRO had released a year ago. FAS has filed suit, saying the documents it seeks are routine administrative and historical information. Congress is considering giving a similar "operational files" exemption to the Defense Intelligence Agency as part of the Defense Department's 2006 authorization bill. (7/14/05)


“Third Exemption” Increase Troubles Open Government Advocates

The growing use of the statutory exemptions from the Freedom of Information Act, often approved by Congress without debate or legislative discussion, is troubling open government advocates, the Cox News Service reports. It says Congress is more and more giving into private sector business interests that want to protect information they consider proprietary. One currently before Congress would exempt livestock identification numbers that would be part of a tracking systems designed as a disease a protection measure. In an appropriations bill last year, Congress exempted information tracking firearms. “Backdoor secrecy,” one critic said. (6/6/05)

Homeland Security Funding: Open and Shut Clauses

The House approved a 2006 funding bill for the Department of Homeland Security, pressing it to report to the public on transportation security measures and to get up to speed on Critical Infrastructure and chemical plant security measures, but it wrapped a protective cloak around that information, whether used internally or shared at the local and state level. The law would have the federal non-disclosure mandate trump any state laws. (5/23/05)

Waxman Files New Legislation to Rollback Secrecy Measures

Rep. Henry Waxman (D-CA) tried last session to reverse many of the executive branch restrictions on public disclosure, with no success. His new bill, the Restore Open Government Act (HB 2331), has similar provisions but is expanded to deal with the pseudo-classification designations now being used to “protect” information. It calls for a study of pseudo-classifiers and elimination of many. (5/16/05)


Congress Ready to Block Anonymous Video News Releases

Senate and House conferees have agreed to add a measure to an emergency spending bill that will prohibit government agencies from issuing video news releases that do not clearly identify themselves as the source. The ban would be for one year but Sens. John Kerry (D-Mass) and Frank Lautenberg (D-New Jersey) have introduced a bill to make the limitation permanent. (5/4/05)

Shield Law Sponsors Open Push for Their Bill

The Senate and House sponsors of a reporter’s shield law held a Capitol Hill press conference to promote the bill and said there will be a House hearing May 12 and a Senate hearing shortly after. They also said they have had “constructive” conversations about the bill with the Justice Department and the White House. The sponsors are Sens. Dick Lugar (R-IN) and Patrick Leahy (D-VT) and Reps. Mike Pence (R-IN) and Rick Bouncher (D-VA). (4/28/05)

  • Free Flow of Information Act
  • CRS Report on Reporters Shield Law

Defense Intelligence Agency Seeks FOIA Exemption

Secrecy News reports that the Defense Intelligence Agency is again seeking legislation that would exempt its “operational files” from disclosure under the Freedom of Information Act. The DIA sought a similar exemption five years ago but it was was rejected by Congress. National Security Archive Director Tom Blanton said at the time the exemption would keep information on foreign military abuses from human rights investigators. The Department of Defense included the provision in its 2006 budget authorization bill. (4/26/05)


Federal Cameras in Courtroom Legislation Filed

Sen. Chuck Grassley (R-Iowa) has filed federal cameras in the courtroom legislation, with 10 co-sponsors. The Sunshine in the Courtroom Act, S 829, permits any presiding federal judge to allow cameras and other recording devices. The bill provides for the obscuring of a witness voice and face if the person is not a party to the case. “I believe that the First Amendment requires that court proceedings be open to the public, and by extension, the news media. …"The sun needs to shine in on the federal courts,” Grassley said in filing the bill. (4/26/05)

IRS Suddenly Says No on Records It's Released for 30 Years

TRAC, a nonpartisan research center that analyses governmental statistics, has sued the Internal Revenue Service for withholding information on enforcement actions that has been public for three decades. The IRS cited national security in refusing TRAC’s request for the records. It also said it no longer compiled statistics on audits, appeals and collection activities. (4/20/05)

Federal FOIA “A Pain in the Neck”, Missouri’s AG Says

Missouri’s Attorney General Jay Nixon says getting records under the federal Freedom of Information Act is “a pain in the neck.” He told the Associated Press the law needs an overhaul. Nixon has sued, unsuccessfully, to get records involving the Missouri River and submitted a request on another issue in early February but has heard nothing, despite a “20-day” response provision in the federal law. (4/8/05)

Sen. Cornyn Expects Fight Over FOIA Reforms

Sen. John Cornyn said there’s going to be a fight and it’s “going to take a little more time” to pass the bill he’s filed to fix many of the operational problems in the Freedom of Information Act. The Texas Republican said that he’s encountered “a deep skepticism about the issue. Everybody's happy to talk about their triumphs. But no one wants to talk about their shortcomings or failures and even more, they'd just prefer to keep them secret if they can." (3/31/05)


Environmental Journalists Protest Information “Safeguarding” Rule

The Society of Environmental Journalists has protested a proposed Nuclear Regulatory Commission rule on safeguarding information and asked the agency to extend the comment period to allow further analysis. SEJ said the information protection system outlined in the rule lacks “the controls and checks that are built into the national security classification system” and could “diminish public awareness of nuclear safety and security issues and relieve the NRC and involved industries of public pressure to address them.” CJOG sent a letter in support of the SEJ petition. (3/29/05)


Justice Department Withdraws Comments on FOIA Reform Bill

“We are sorry, but we are unable to locate the page you requested on the Department of Justice Website.” That’s the message you get now when you go to the webpage where DOJ had posted their belief that the proposed OPEN Government Act sponsored by Sens. Cornyn and Leahy held “the possibility of leading to significant improvements in the Freedom of Information Act.” The FOIA Post, Justice’s official FOIA information page, now makes no mention of the bill. But in case you are curious, we’ve saved the original text. Just click on our headline. (3-25-05)

Six Testify in Support of OPEN Government Act

Six witnesses with extensive Freedom of Information Act experience told the first Senate oversight panel since 1992 that the 38-year-old law needs fixing – and endorsed the proposed Open Government Act as a way to make some of those changes. The hearing was chaired by Sen. John Cornyn, R-TX, and Sen Patrick Leahy, D-VT. Cornyn called the hearing “a important first step toward strengthening open government laws.” Leahy called their bill “a collection of common sense modifications.” The testimony of the six is linked below.

  • Katherine M. Cary, Texas Assistant Attorney General, Chief, Open Records Division
  • Walter Mears, former AP Washington Bureau Chief
  • Mark Tapscott, director, Center for Media and Public Policy, Heritage Foundation
  • Lisa Graves, Senior Counsel, ACLU
  • Meredith Fuchs, General Counsel, National Security Archive
  • Tom Susman, attorney, Ropes and Gray

Faster FOIA Act on a Fast Track

Less than a week after it was filed by Sens. John Cornyn, R-TX, and Patrick Leahy, D-VT, the Faster FOIA Act was approved by the Senate Judiciary Committee. The bill, a companion to the more detailed OPEN Government Act, would create a 16-member Commission on Freedom of Information Act Processing Delays. The commission would have a one-year study life, reporting to Congress at the end of that time on ways to make the processing of FOIA requests more efficient. (3/18/05)

  • Text of Faster FOIA bill

NRC Proposes New Rule Expanding “Safeguards Information”

The Nuclear Regulatory Commission has proposed a new rule that expands its own version of sensitive but unclassified information that will be given protected or “safeguarded” status. The Safeguards Information (SGI) designation goes back to the Atomic Energy Act of 1954 and existing rules provide a “need to know” and a clearance process for the handling of information. The new rule creates a category of Safeguards Information-Modified Handling and includes information on emergency planning procedures, safety analyses, or defense capabilities. One advocacy group, OMB Watch, notes that the NRC has been criticized for not sufficiently utilizing threat assessment analysis to improve security at nuclear facilities. It says the new provision would effectively silence such criticism and prevent any discussion about improving the nuclear generator safety. (2/24/05)

Wyden Files Bill To Force Publication of Iran Contractors List

Sen. Ron Wyden, D-OR, has introduced a bill (S 299) that would require the Treasury Secretary to publish a list of the United States "companies whose subsidiaries continue to do energy deals with Iran,” companies such as Halliburton that has indirect connections.” Wyden dais that his view is “that an informed American public is best equipped to hold these companies accountable." (2/13/05)