The Headlines
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Attorney General, Intelligence Director Write Senate in Opposition to Shield Bill
In a letter to Senate leaders, Attorney General Michael Mukasey and National Intelligence Director Mike McConnell restated their opposition to the Free Flow of Information Act and said that if the reporter-source shield bill passes Congress that President Bush’s advisors would recommend a veto. Mukasey and McConnell argued in the letter that the legislation could harm national security and encourage more leaks of classified information. (8/26/08)
Senate Committee Report Criticizes Use of State Secrets Privilege
The Senate Judiciary Committee has issued a report on the proposed State Secrets Protection Act that is sharply critical of the Bush Administration for its increases use of the secrets privilege to block civil litigation and of the courts for acquiescing. The report says that as a result there is not a strong public perception that the privilege has become a “tool for Executive
abuse." (8/12/08)
Detroit Reporter Ordered to Discloses Sources for Prosecutor Misconduct Story
A Detroit Free Press reporter has been ordered to reveal the names of confidential sources who provided him information on prosecutorial misconduct in a 2004 terrorism case. Federal Judge Robert Cleland held that Michigan’s reporter-source shield law did not apply because the U.S. Sixth Circuit “has explicitly declined to recognize a qualified First Amendment privilege for reporters.” He also said the name of reporter David Ashenfelter’s source was critical to the case moving forward in the federal courts. (9/4/08)
Research Council: Environmental Decision-Making Aided by Public Participation
The National Research Council has issued a report that explores the benefits and downsides to public participation in environmental policy-making, concluding that “when done well, public participation improves the quality and legitimacy” of the decision-making process. But it also cautions that done poorly, public participation “has done more harm than good.” (9/4/08)
FBI Director Admits Agency Snooped on Reporter Phone Calls, Apologizes
FBI Director Robert S. Mueller disclosed that his agency had improperly obtained phone records of reporters for the New York Times and the Washington Post as part of an unspecified national security investigation four years ago. Justice Department rules prohibit such action without approval of a deputy AG. Mueller disclosed the breach in phone calls to editors of the two newspapers in which he apologized for the actions. (8/12/08)
A National Security Directive That's Not About National Security
A National Security Presidential Directive on space exploration, issued in 2004, has been disclosed by Wikileaks, and, surprise, there no national security components in the memorandum. Secrecy News asks the logical next question: How many other presidential directives sealed in the name of national security have nothing to do with national security. (8/19/08)
Study Shows Military Justice System Runs a Mostly Closed Shop
The military justice system is highly secretive, with the public having little opportunity to learn of criminal hearings conducted by military courts, which largely operate without dockets, the Reporters Committee for Freedom of the Press reported after a yearlong study. “Unfortunately, in this regard, members of the armed services have fewer rights than those granted to criminal defendants in civilian courts” said Reporters Committee Executive Director Lucy Dalglish. (8/19/08)
Labor Department Rushes Worker Safety Rule Change Without Public Notice
The Department of Labor – having ignored a requirement to give public notice of a regulatory change -- is rushing to push through a new rule that
Will make it tougher to regulate the on-the-job exposure by workers to chemicals and toxins. The proposed rule change only surfaced when the White House Office of Management and Budget posted a notice on its website that it was reviewing the proposal, identified only by its nine-word title. No text is available. (7/24/08)
EPA Refuses to Disclose Information on Pesticides, NRDC Sues
The Natural Resources Defense Council filed a Freedom of Information Act suit against the Environmental Protection Agency after it refused to release records on a new class of pesticides that the environmental group believes could be a facxtor in the disappearance of millions of honeybees in he U.S. The NRDC said about 330 percent of the hives have disappeared in the past three years. (8/26/08)
Hospital Death Rates Now Posted on Medicare Web Site
The federal government has posted, for the first time, the death rates at hospitals around the country on the Medicare Web site, www.hospitalcompare.hhs.gov. The data posted shows death rates for pneumonia, heart attack and heart failure for patients within the first 30 days at hospitals. (8/21/08)
Military Justice System Highly Secretive, Reporters Committee Study Shows
The military justice system is highly secretive, with the public having little opportunity to learn of criminal hearings conducted by military courts, which largely operate without dockets, the Reporters Committee for Freedom of the Press reported after a yearlong study. “Unfortunately, in this regard, members of the armed services have fewer rights than those granted to criminal defendants in civilian courts” said Reporters Committee Executive Director Lucy Dalglish. (8/19/08)
Former Classification Official Seeks Way to Testify in AIPAC Case
J. William Leonard, the former head of the government’s Information Security Oversight Office, is prepared to testify that the classified information two former members of the American Israel Public Affairs Committee are accused of receiving and transmitting did not meet the standards for national security classification. But prosecutors have said his testimony could result in his going to jail for a year. Now, Leonard’s attorney has filed a motion that could lead to the judge ordering Leonard to testify, negating any penalty for his testimony. (9/2/08)
National Archives Released Personnel Records of WWII Spy Agency
The National Archives released half-century old personnel records of the Office of Strategic Services, which became the CIA, making public for the first time the names and employment details of 24,000 war time employees, including later super chef Julia Child, film director John Ford, and historian Arthur Schlesinger. (8/15/08)
No Consistent Approach to Preserving E-mail Records, GAO Says
A Government Accountability Office report says that federal officials have failed to consistently preserve government e-mail, creating gaps in the public record and making it difficult for citizens to understand what their government is doing. As use of e-mails has increased, agencies have struggled with which e-mails to preserve, which to delete and how to store those saved. GAO said current law allows broad discretion and agency practices vary widely. (7/9/08)
Don't Restrict Sharing of Unclassified Research, Defense Department Urges
The Defense Department has told its various agencies not to impose security-related access restrictions on unclassified fundamental research. The directive is a response to concerns about restrictions that have been imposed since 9/11 on DoD funded university and private research, Secrecy News reports. (7/9/08)
Justice Department's Oversight Office Becomes Increasingly More Secretive
The Office of Professional Responsibility, charged with monitoring the conduct of Justice Department lawyers, has become increasingly more secretive. It is no longer issuing public reports now that it is looking into some of the most critical and controversial Justice actions, such as the policies developed on interrogation of suspected terrorists, the warrantless electronic surveillance program, and whether department lawyers have been involved in selective prosecution of Democratic officials. (7/7/08)
Iowa Land Records, with Social Security Numbers, Pulled from Official Web Site
Detailed Iowa public land records were removed from a public Web site, sponsored by the Iowa County Recorders Association, because some contained private information, prompting identity theft concerns. The Web site, IowaLandRecords.org, had drawn complaints from privacy watchdogs and individuals whose private information, such as Social Security numbers, was on the site. Included was the SNN of Gov. Chet Culver. (9/4/08)
Albany Times Union Sues State Comptroller for New York Payroll Data
The Albany Times Union sued the New York state comptroller over his refusal to release state payroll data. The newspaper’s investigations editor, J. Robert Port, has requested electronic copies of payroll tables earlier this year. Comptroller Thomas P. DiNapoli said in denying the request that other payroll data could not be separated from Social Security numbers, which may be withheld under state law. (9/4/08)
Three Flint Police Officers Challenge Chief's Gag Order
The ACLU filed a suit on behalf of three Flint, Mich., police officers challenging disciplinary action taken against them for speaking with the media. Flint Police Chief David Dicks has prohibited officers from speaking to reporters. The suit seeks to end the ban and to restore lost wages and jobs. (9/4/08)
Cedar Rapids Official Refuse to Release Some Flood Damage Data
City officials have refused to release address-by-address flood damage data to the Cedar Rapids Gazette, saying the records belong to the Federal Emergency Management Agency and are not public under federal law. The newspaper had requested the information, citing a June 2007 federal court ruling under which FEMA was required to make public the addresses and damage report data on hurricane relief. (9/4/08)
Scottsdale Police Now A-Twitter on Crime, Safety Reports
Police in Scottsdale, AZ, have turned to Twitter.com to provide information to residents about crime, road closings and other safety issues. People can also subscribe to get text message updates on their phones or other messaging devices. The department also has a separate website that includes the same plus additional department information (9/2008)
Sheriff Denies Records Request, Then Sends a Bill for Services
The sheriff in Michigan’s Shiawassee County rejected the Owosso Argus-Press’s request for records related to a former officer, then sent the newspaper a bill for $10. In refusing the request, Sheriff Jon Wilson said he had no knowledge of any employment issues involving the officer and that internal labor issues aren’t subject the state’s public records law. The newspaper cited a letter written by the sheriff to the employee about work issues and questioned the sheriff’s interpretation of the law. (8/27/08)
Denver Post Sues Colorado Governor Over Access to Cell Phone Records
The Denver Post sued Colorado Gov. Bill Ritter, who has refused to make public 19 months of cell phone records that would reflect his phone conversations since taking office in 2007. Ritter has a state-issued cell phone but frequently used a second cell phone he has paid for personally. Those are the bills at issue. The newspaper’s lawsuit argues thatd the governor cannot “privatize” public records by setting up a private account. (8/12/08)
NY Governor Signs Bill Allowing Public to Recover Legal Fees in Access Cases
New York Gov. David Paterson signed into law a new public records provision that requires the state to reimburse people who successfully sue to get access to public records or meetings. The law does require the legal fees to be reasonable and states that the provision will not apply if the dispute might have been settled without court action. (8/12/08)
Tulsa Paper Reports Widespread Sealing of Court Records in Oklahoma
Oklahoma district court judges are sealing thousands of court cases and documents based solely on requests from attorneys, the Tulsa World reported.
The newspaper said its review showed that at least one record in more than 2,300 cases had been sealed since 2003, including company financial records and settlements in divorces and in wrongful death lawsuits. (8/12/08)
Study Shows Few South Carolina Legislative Votes Recorded
A study by a conservative think tank showed that the South Carolina House had roll call votes on only eight percent of the bills that became law and the Senate only one percent of the time. The governor’s office said the legislature had effectively obscured its actions from the public in a “shocking lack of accountability.” The South Carolina Policy Council, which conducted the study, said it the lack of roll call votes gave legislators a “plausible deniability” on controversial legislation. (8/12/08)
Governor's Travel Records Public, Texas Judge Rules
A Texas judge has ordered the Texas Department of Public Safety to release the public travel records of Gov. Rick Perry, saying there is no evidence that doing so would jeopardize the governor’s safety as the state’s attorney general had said in advising the records could be withheld from the public. The records had been requested by the Austin American-Statesman, the Houston Chronicle and the San Antonio Express News. (8/12/08)
Pennsylvania Treasurer Creates an E-Library for Contracts
Pennsylvania Treasurer Robin L. Wiessmann unveiled a new Contracts e-Library that provides Internet access to information on all government agreements. The new website is a response to the recently approved changes in the state’s public records law which says that all records, unless exempted, are public. The new law takes effect in January. (7/23/08)
New Jersey Court Upholds Deadline for Filing Public Records Suit
New Jersey’s Supreme Court held citizens to the 45-day window in state law for filing suit if turned down by a state or local agency on a request for public records. The court, noting that government agencies have only seven days to respond to a records request, said agencies are as entitled to citizens to have disputes resolved in a timely manner. The court also said agencies that do turn over records after being sued must pay all legal fees of the plaintiff.
(7/23/08)
House Speaker Says "No Time" for Revisions to North Carolina Records Law
North Carolina's Senate unanimously approved approved an amendment to the state’s open records law to provide for the automatic award legal fees to those who successfully sue for public records. The bill also creates a mediation unit in the attorney general’s office to try to resolve disputes short of court action. But the bill appears dead for this session because of opposition from House Speaker Joe Hackney who has said there is not enough time for it to be considered in that chamber. (7/18/08)
Montana Judge Calls City's Records Withholding "Disingenuous"
A Montana district judge ruled that the city of Great Falls improperly withheld records requested by an environmental group about the city’s relationship with a utility company, calling the city’s defense “disingenuous.” The documents sought included copies of contracts and financial agreements between the city and the utility. (7/18//08)
Virginia Tech Withholds Some of Records Related to 2007 Rampage
Virginia Tech is keeping secret some of the key material about the April 2007 killing rampage of Seung-Hui Cho even though it reached a settlement with victims’ families to make essential facts public, the Richmond Times Dispatch reported. The newspaper obtained some 20,000 pages through the Freedom of Information Act but said the university will not release notes of senior university leaders at an emergency meeting that morning nor a box of records related to Cho. (7/22/08)
Rhode Island Commission Seeks to Keep Judicial Nominating Letters Secret
Rhode Island’s Judicial Nominating Commission wants to keep confidential the letters it receives advocating for or against candidates for state judgeships. The commission asked Attorney General Patrick Lynch “to confirm” its interpretation of the state’s public records law. The commission has released such letters in the past but new chairman Stephen Caroltti refused a request from the Providence Journal. The full commission then agreed to seek an AG’s opinion. (7/22/08)
Alabama Introduces New System for Obtaining Background Checks
Alabama has developed a new electronic system to allow employers to make background checks on job applicants while keeping criminal records information normally available only to other law enforcement agencies secure. The Alabama Background Check system requires employers using the system to be registered and to obtain a signed waiver from the prospective employee. (7/23/08)
Hoboken Hospital Authority Violated Sunshine Laws, Judge Rules
A Superior Court judge rebuked the Hoboken Municipal Hospital Authority for its “pattern of conduct” in avoiding public meetings and records requirements in its efforts to gain underwriting for a $52 million medical center. The court ruled in a suit brought against the authority by city Councilwoman Beth Mason who said it had failed to provide proper notice, closed two meetings and then refused to provide records of the meetings. (7/18/08)
Minnesota Governor’s Paper Trail Is Quite Short
The Minneapolis Star Tribune reported that Gov. Tim Pawlenty’s administration is setting new records by not keeping very many. The administration saves far fewer papers than its predecessors, keeping only records of final decisions and failing to send any documents to the state archives in its five years. (7/7/08)
Pension Investment Records Become Increasingly Difficult to Access
Thirteen states now have secrecy laws closing off information to state pension fund performance information, Forbes reports. It said there is a growing trend to seal information on private equity fund performance, noting as an example that Virginia’s Retirement System manager recently asked staff to box and return all quarterly and annual reports received from fund managers. (7/7/08)
Rhode Island Governor Vetoes Bill Speeding Response to Records Requests
Rhode Island’s governor has vetoed legislation that would have required law enforcement agencies to release public records within 7 days of a request, saying the bill would “force our law-enforcement agencies to publicly release information that may compromise public safety.” He also said he was concerned about releasing the location where police arrests occurred. ACLU Executive Director Steven Brown said the veto “demonstrates a shocking indifference to the public’s right to know.” (7/7/08)
New Mexico Open Government Foundation Awarded Legal Fees in Records Dispute
The New Mexico Foundation for Open Government has been awarded $25,970 in legal fees for its two year battle with the state’s Taxation and Revenue Department. The foundation was working with a private investigator who sought information about properties with delinquent taxes. (7/18/08)
Delaware Legislators Adjourn; No Sunshine in Sight
Delaware lawmakers adjourned their 2008 session without taking any action on several bills designed to open closed door meetings. The key proposal would have made the legislature subject to the state’s Freedom of Information Act. (7/1/08)
Georgia High Court Gives Police Investigations a Long Shelf Life
In a 4-3 decision, Georgia’s Supreme Court ruled that police can deny media requests for records of “pending investigations” even in cases where the case has continued for more than a decade and there is little evidence of current police work. The court called it a “hard fact of law enforcement” that some cases remain unsolved for long periods of time. It said records should be open only when “all direct litigation” involving both investigation and prosecution is final. (7/1/08)
FOI Request and Report Prompts Buffalo to Cut Employee Take Home Cars
In the wake of a Buffalo News report on the 85 city employees who take home city cars each night, the mayor has decided to cut home use of cares back by 41 percent. The News had to file a Freedom of Information Law request to get the information. It took two months. In announcing the cutback, Mayor Byron W. Brown cautioned the remaining 50 employees not to use city cars for personal business. (7/3/08)
Maryland State Police Ordered to Allow Review of Profiling Records
A Circuit Court judge in Baltimore ruled that the NAACP can review documents alleging racial profiling by the Maryland State Police. Judge Timothy J. Martin gave lawyers for the NAACP 120 days to review the records and said names of police and complainants would be redacted from any documents copied. (6/30/08)
FISA Court Against Rejects ACLU Plea for More Openness
The Foreign Intelligence Surveillance Court again rejected a request from the ACLU to shed a little sunshine on its regulation on the government’s electronic surveillance. The court rejected a petition to allow publication of unclassified court documents and to allow non-government lawyers to argue in court. Surveillance Court Judge Marya McLaughin said in response to the ACLU petition that the public has no right to know more about the workings of the court. (9/2/08)
Juror Names Presumptively Public, Federal Appeals Court Rules
The Third U.S. Circuit Court of Appeals ruled that the media has a presumptive right of access to the names of jurors. It said a federal judge in Pittsburgh erred when he sought to empanel an anonymous jury in the corruption trial of a former county coroner. "The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors' names …. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process," Judge D. Brooks Smith wrote. (8/12/08)
Judge Holds Back Release of Critical Grand Jury Testimony in A-Bomb Spy Case
A federal district judge in Manhattan authorized the release sought by historians to much of the secret grand jury testimony in the 1950s Rosenberg atomic bomb espionage case, but refused the request related to critical testimony of David Greenglass, the still-living brother of Ethel Rosenberg. Greenglass argued through his attorney that he had been given an “unequivocal and complete promise of secrecy.” (7/23/08)
Justice Sued Over Records on Mobile Phone Location Tracking
A year ago, the American Civil Liberties Union and the Electronic Frontier Foundation asked the Justice Department for records on the tracking of individuals by using their cell phones as homing beacons. Now, lacking a response, the two NGOs have filed suit under the Freedom of Information Act. They hope the records will shed some light on the prevalence of such requests, and on the extent of judicial scrutiny to which they are subject. (7/3/08)
Judge Upholds Anti-Terrorist Advisory Board Secrecy
A federal judge in Washington ruled that a government commission charged with advising the president on ways to prevent terrorist attacks does not have to disclose records of its meetings. The Center for Arms Control and Non-Prolifteration had challenged the records denial by the Commission on Intelligence Capabilities, created by President Bush in 2004. (7/1/8)
ACLU Sues Homeland Security Over Withholding of Detainee Records
The ACLU filed a FOIA suit against the Department of Homeland Security saying its Immigration and Customs Enforcement service had not responded for more than a year to a request for information on detainees who have died in custody. It estimates there have been at least 69 such deaths, which it believes are the result of poor health care at the correctional facilities where they are being held. (7/1/08)
The Story of a Lie That Led to the State Secrets Doctrine
A new book by former Los Angeles Times reporter Barry Siegel explores the half-century old case of U.S. v Reynolds, which gave rise to the state secrets privilege that is now being asserted by the government to avoid litigation over warrantless electronic surveillance. The government national security claim in the 1953 was accepted by the court in an “act of faith” but was later shown to be a lie. (6/23/08)
Montana Federal Judge Applies FOIA Legal Fee Recovery Retroactively
A federal judge in Montana ruled that anyone who prevails in a Freedom of Information Act suit can recover attorney fees under the statutory changes approved in a FOIA reform bill that Congress approved and the president signed last December. The government had argued that the recovery provisions did not encompass any suit filed before the new law was signed. Judge Donald Malloy said that would create a “manifest injustice.” (5/16/08)
Small Business Administration Directed to Release Contract Records
The Small Business Administration has been ordered by U.S. District Judge Marilyn H. Patel to reveal the businesses it has contracts with. The ruling is in response to a suit by the American Small Business League, which contents that many of the “small business” contracts actually went to Fortune 500 companies. (5/26/08)
Supreme Court Upholds Individual Right to Sue on FOIA Requests
The U.S. Supreme Court, in a unanimous decision, said Freedom of Information Act requesters have a right to sue a federal agency for documents even if the courts had previously refused to overturn the agency’s rejection of an identical request by another party. The court said that denying an additional claim would preclude a litigant from having “his own day in court.” (6/19/08)
Candidates and Open Government
Alaska Governor, Claiming Executive Privilege, Withholds E-mails
Taking a page from the White House book, the office of Alaska Gov. Sarah Palin, now the Republican vice presidential candidate, is now refusing to release e-mails to and from her advisors, claiming executive privilege. However, at least one Alaskan had already obtained some e-mail through an earlier Freedom of Information request. And Dan Fagan, a radio talk show host who is the subject of at least one-email, questioned how executive privilege could be cited when the governor’s husband was sent a copy. (9/4/08)
Nieman Watchdog: McCain Should Release Navy Records on Flight Accidents
The Nieman Watchdog has called on the Sen. John McCain to release all of his Navy records and in particular those involving three in-flight accidents before he was shot down in Vietnam. Watchdog editor Barry Sussman said the number of accidents is unusual and wondered what they might reveal about the presidential candidates judgment, ability and character. (9/2/08)
Montana Governor Candidate Pledges Online Spending Accountability
Montana gubernatorial candidate Roy Brown is pushing a “Governmental Accountability Portal,” allowing the public to view state spending information online, as part of his campaign. He said that if elected he will urge the legislator to pass implementing legislation at their 2009 session. (8/15/08)
Presidential Candidates on Open Government and Shield Law
The three presidential candidates all spoke on issues of freedom of information and government transparency when they appeared at the annual conference of the Newspaper Association of America and the American Society of Newspaper Editors, April 14 and 15. Sen. McCain announced he had “narrowly” decided to support a reporter-source shield bill. Sen. Clinton promised to “restore openness” in the federal government, among other things reversing the Ashcroft memo. Obama said he would work for transparency and accountability. (4/16/08).
NC Governor Candidates Respond to Open Government Questions
The Associated Press put three questions on open government to all eight candidates for governor in North Carolina. All responded. Two questions followed up on current e-mail controversies and whether as governor they would make their correspondence readily available. The third involved whether employee disciplinary records would be made public on request. (4/23/08)
Pledge of Openness Was Key to Victory, New Muskogee Mayor Says
John Tyler Hammons, the new mayor of Muskogee, Okla., says that what most resonated with voters – he picked up 70 percent of the vote – was his commitment to openness in government, keeping citizens better informed about city operations, and restoring trust. “I think that’s been a detriment,” said Hammons, who is a 19-year-old freshman at the University of Oklahoma. (5/15/08)
Obama Introduces New Transparency Bill; McCain a Co-Sponsor
Sen. Barack Obama and Sen. John McCain, the likely Democratic and Republican nominees for president, have co-introduced legislation that would provide the public more information on government spending. The bill, S-3077, builds on previous efforts of Obama and Sen. Tom Coburn, R-OK, another co-sponsor to provide web access to federal grand and contract information.
Comparing the Candidates on Reversing Ashcroft FOIA Memo
Democrat Barack Obama and Republican John McCain have promised, if elected, to review the Freedom of Information Act policies established by the Bush Justice Department. Democrat Hillary Rodham said she will reverse the policy and replace it with one that pledges release of information unless disclosure will do harm. (3/27/08)
County Council Candidates Questioned on Access to Records
The Anderson Independent Mail asked candidates for the county council their view on access to budget information and other county records after one council member sued the administration over a delay in getting information. Others citizens have complained about the fees charged. Several incumbents said the administration is sufficiently open now but opponents called for greater access. (6/4/08)
YESTERDAY’S NEWS
