Notes from the 2005 National Freedom of Information Coalition Convention
NFOIC,
Santa Fe (5/14/05)
Notes
from the annual conference:
“How
government watchdogs guard public rights”
From: Frosty Landon Executive director Virginia Coalition for
Open Government Box 3094, Roanoke 24015 540.353.8264 (cell)
540.774.5020 (fax) http://www.opengovva.org
Virginia's Freedom of Information Act http://www.opengovva.org/foia_acts/foiacurrent.htm
Virginia's FOI Advisory Council http://dls.state.va.us/foiacouncil.htm
Moderator: Mitch Pearlman, executive director, Connecticut FOI Commission
Panelists:
Stuart Bluestone, chief deputy attorney general, New Mexico AG’s office
Maria J.K. Everett, executive director, Virginia FOI Council
http://dls.state.va.us/foiacouncil.htm
Darce Fardy, review officer, Nova Scotia FOI & Protection of Privacy Review Office
Bluestone:
I represent the
“Old School” approach to FOI enforcement (AG-office
enforcement).
In the AG's
office, we know how public officials are conducting public
business. The whole idea is to promote openness. Our work
involves education, informal advice, handling of formal
complaints, litigation, legislation (the state has a Public
Records Act and Open Meetings Act). Most important work is
education. We publish compliance guides and we work with the New
Mexico coalition, the municipal league and others in providing
training seminars and other education. We provide informal
advice; government officials do not always listen to us. State
brought criminal action against a school board, won a conviction
on misdemeanors. Only 17-19 states, territories allow for
criminal penalties for FOI violators. In only a minority of the
nation’s jurisdictions can the AG sue for compliance.
Legislation is an ongoing effort (recently got a law requiring
public posting of FOI rights and responsibilities, similar to
rules in Texas and Virginia).
Everett <http://dls.state.va.us/foiacouncil.htm>:
(Pearlman:
Virginia is an example of a newer, more innovative approach.) The
Virginia FOIA Council was created in 2000, in legislative branch,
I also serve with the House of Delegates committee that handles
FOI bills. VCOG supported our creation, saying “we need
somebody to answer FOI questions.” We are a nonpartisan
staff (2 lawyers; $150,000 annual budget), trying to build
consensus. In Virginia, FOI cases must be considered by the
courts within 7 days of a filing; we needed a quick non-judicial
process for FOI opinions. We were patterned after the New York
model (Bob Freeman’s office, supported by an 11-member
commission). We issue advisory opinions (more than 100 written
opinions so far). We also provide up-to-date educational
materials. We try to get government agencies to meet with our
council in a “legislative preview” to let everyone know
what the agencies “have up their sleeve” in proposed
FOI exemptions. Training is the most important thing we do, with
an annual FOIA road show in 5 to 7 locations. If anybody calls us
from anywhere, we provide training free of charge. (Our message
to government: FOIA is an official’s “tool”; under
state law for responding to a record request, they have just
5 days to answer a requester, or they could be in court.) Our
added message: We need to articulate why record access is
important, why it is not government’s business to ask why
somebody wants a record. We have no enforcement authority,
“but I try to helpfully nudge government officials in the
right direction. People know they can call us to get a quick
answer.” Until now, I had not thought of my job as a
“watchdog.” (The office gets 1,200 inquiries a year,
mostly from citizens and government; press inquiries are a small
minority of the contacts.
Fardy: (Pearlman:
Fardy is Canada’s highly respected “traditional
ombudsman”). Every territory and every province and the
federal government have access legislation. In each province and
territory, one person independently oversees an access act and
also a privacy act. In our province, government deliberately
avoided putting a lawyer in the job. I use an informal approach
with open-government issues; there are no formal hearings. Some
powers: my recommendations usually are followed. I am authorized
to mediate. Requesters are usually private citizens. If
government came in with lawyers, a requester would be
intimidated. I talk with all parties, including interested third
parties. I then write a review, but I do not operate below the
radar. My reports go online in a Web site and listserv, and to
media in news releases. I started the model; it may survive after
I retire. Access act is not used to a great extent. It is
difficult to get journalists interested. We have a $25 fee for
record access, which can be a deterrent. If officials ever get
around to amending the act, that probably will be revisited.
Hospitals are covered; privacy issues have been sorted through,
to protect public access for administration and public-health
information. Some would say no teeth in our approach, but no
government wants to be embarrassed. So, my recommendations are
seriously considered and more often than not are accepted. In our
province, access always wins in court challenges (cq!).
Pearlman:
Connecticut was the first state to create an independent agency
to administer and enforce a state’s open-government law.
(The commission was stablished 30 years ago; “we’re
always making somebody mad”. We have a $1.6 million budget,
a senior service staff with 17 positions, and a part-time
advisory council. Hawaii and New Jersey have established similar
entities, with mixed results. Mexico and other foreign countries
now are trying a similar approach. We hear FOI disputes in an
informal setting, and try to talk in plain English. We handle
500-600 complaints a year, and we have a mediation division (with
a 70 percent success rate) to avoid having to go to formal
findings. We have the power to order disclosure and to nullify
illegal meeting actions. If an agency opposes our decision, legal
help is provided for a citizen to challenge the agency. We also
function as a think tank, trying to anticipate problems
(Internet, 911 issues, for example). Our most important function
is public education (10,000 inquiries a year; inquiries get
answered immediately); commission and court rulings are online
(our findings are appealed only in about 10 cases a year);
highlights of law and our decisions are published; training
sessions are provided for any who ask. We now “train the
trainers” (in every state agency and local entity), giving
them responsibility to train others within their jurisdictions.
We have the power to fine violators. It can make a big difference
in smaller localities. In bigger cities, it is not a
disincentive. We also could obtain contempt citations from a
court, and can threaten jailing. Publicity is still the biggest
deterrent to FOI violations.
NFOIC, Santa Fe (5/14/05)
Notes from the annual NFOIC conference:
“Sunshine and Public/Private Partnerships”
Moderator, Barbara Petersen, president, Florida First
Amendment
Foundation
Panelists:
Terri Cole, president, Greater Albuquerque Chamber of Commerce
(and a
director of the New Mexico Foundation for Open Government)
Coleen Murphy, managing director, Conn. FOI Commission
Jon Kaney, senior partner, Cobb & Cole
Petersen: We are seeing traditional government services shifted
more
and more to private entities. We also are seeing creation of
various
public/private partnerships. Plus, every governor seems to love
task
forces, usually made up of private individuals, maybe a
government
person or two. If we delegate these functions, how do we
preserve
openness in government? In Florida, we are creating a huge
research
facility, giving it hundreds of millions of dollars in
incentives; it
contends it is not covered even for future budget requests
or
procedures for waste disposal. In the area of economic
development,
we should know at least what type of business or industry plan
is
proposed, before it is a done deal.
Cole: Open government means better government. We have many
examples
of bad government. New Mexico’s FOG worked to bring
government and
business into the organization. This helps us, and helps the
cause;
we then can help spread the word about open-government
principles.
Task forces are murky, at least in New Mexico. Without an open-
government supporter on such task forces, they are likely to
operate
in secret.
Kaney: Florida’s public records act dates back to the 1890s.
Sunshine
Act enacted in 1967, saying any agency created by law was covered
by
the public-meeting law. State Supreme Court ruled: no exception
for
“government by delegation.” Legislature extended law to
cover “any
entity” with a government role. Still, there is ambiguity as
to when
a private partner is acting on behalf of government. The
economic
development agenciess abhor public oversight. Nobody will talk
if
they cannot keep a secret involving a prospect. But at the
earliest
moment that the deal is struck, it must be disclosed.
Coleen Murphy: In Connecticut, we have 30 years of FOI case law.
In
court 25 years ago we had our first test of when a
quasi-public
entity is subject to FOI law. It gave us four criteria to
apply:
Government function performed? Government funding? Regulation of
the
entity? Created by government? Courts since have made clear
the
“functional-equivalency” test did not require all
criteria to be met.
More recently, a small domestic-violence agency receiving
public
money was challenged. A court ruled that if public money was
given
for a contract, instead of part of its operating budget, the
agency
was exempt. Same interpretation was later applied to a much
bigger
entity. Not easy to correct. Now, our amended law covers a
contract
over $2.5 million for performance of a governmental function,
giving
us a way to get at large private partnerships. Unfortunately,
with
our successful U of Conn. basketball teams, foundations raise
huge
amounts of money that get used for basketball-player perks,
apparently matched by some tax dollars.
Petersen: Florida’s FOI law covers vouchers for charter
schools (they
are providing a traditional government service).
“Proprietary” or
trade-secret information is protected, almost sacrosanct.
We
attempted this year to require specific proprietary
information
certified in writing, subject to perjury law and in-camera
review . . . . creating a much higher standard than in the past.
Cole: In New Mexico, in order for economic development to
be
successful, it must be a partnership with the private sector.
Many
things go into striking a deal. We have to find ways to bring
the
sectors together. In our internal discussions, we look for
middle-
road solutions. Not every single absolute thing should be open
or
closed. There are elements of these deals that have got to be
open to
the public. Private sector has had the ability to keep things
secret;
I am trying to break down that notion. The best economic
development
comes from public-private partnerships. The need is driven
by
competition from other states. Companies do not want a
hostile
reception. Situations can get resolved with good relationships.
NFOIC, Santa Fe (5/14/05)
Notes from the annual NFOIC conference:
“The First Amendment: Do we need a shield law?
Floyd Abrams, speaker; partner, Cahill, Gordon & Reindel,
NYC:
Press had a surprising string of victories since the unfavorable
U.
S. Supreme Court’s Branzburg shield-law ruling in 1972. (In
that
case, the Court ruled, 5-4, that no journalist privilege existed
–
although Justice Lewis Powell left some wiggle room.
At that time, journalists could not agree on whether to seek
a
federal shield law to overturn Branzburg. Serious arguments
were
presented against admitting that no press privilege existed, or
in
risking congressional intervention. At that time, 18 states
had
shield laws. Now 31 have such laws. Another 18, as result of
judicial
decisions, give absolute or qualified protection.
Recently, there has been a spate of “leak
investigations” (the most
troubling challenge for the press) and we are seeing less
sympathetic
judges. In the Judith Miller and Matt Cooper cases, a
district
federal judge called his own previous support for a press
privilege
as “wishful thinking.” Now, at least in a grand jury
context, the
appeals court for the District of Columbia is saying there is
no
privilege. Miller and Cooper have been held in contempt and now
face
jail.
A movement is now growing to try to persuade Congress to pass
a
shield law (even though there is a much less sympathetic
Congress
than in ’72). The policy question for the press and First
Amendment
supporters is whether to seek a federal shield law. “I think
they
should.” If we lose the Miller/Cooper case, we will have
firmly and
unequivocally established, at least in the grand jury context,
that
no press privilege exists – and we will send reporters out
with no
way to carry out their jobs. That is unacceptable. (We
should
remember, source protection is not a new issue: a 50-pound reward
was
offered for John Peter Zenger’s sources; in another court
case, Ben
Franklin refused to disclose sources.)
Perhaps the U.S. Supreme Court would be more comfortable
recognizing
a privilege legislated by states and DC. or one established
by
federal courts based on common law, rather than asserting a
First
Amendment basis for such a privilege.
In a world in which leaks are endemic, for better or worse, we
need
better source protection.
The court accepts only 70 or so cases from 8,000 applications
each
year; if the case is accepted for hearing (that word probably
will
come in late June), there are potentially 6 votes on the
Supreme
Court for at least some protection.
Should “bloggers” get similar source protection as
“journalists”? The
test for “journalist” must go to the nature of the
“publisher.” If
what you are doing is the functional equivalent of a
traditional
journalist’s work, you should be protected. Those who
get 50,000
hits, gather original information and do it on a regulsr basis
for a
dissemination purpose should get the same privilege. Most
of the
rest of the world has absolute shields for journalists.
Confronted with growing government secrecy, the news media must
forge
a stronger alliance with the public on the need for open
government
policies, Associated Press President and CEO Tom Curley said
Saturday.
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/14/AR2005051400795.html
------------
Only a few hours after the announcement that Cannon Air Force
Base
was on the Pentagon's closure list on Friday, Gov. Bill
Richardson
had a timely example of why he considered the public access to
information is so important. "I want to see all the
documents that
led to this decision," he said. "Hopefully, it's not
political."
Richardson welcomed more than 100 people from all over the
country to
a national freedom of information conference at the Hotel St.
Francis, encouraging them to find out "what our leaders are
doing -
the good, the bad and the ugly."
http://www.lamonitor.com/articles/2005/05/16/headline_news/news02.txt
http://www.thenewmexicochannel.com/news/4487957/detail.html
---------------
TO: FOIL-ers
My thanks to Tom O'Hara for the report below and to Frosty Landon
for
his recent posts to help those of us who weren't at the NFOIC
meeting to
get a taste of the discussion and learning there.
Barbara
List Owner
------------
from Tom O'Hara
May 13, 2005
Report on NFOIC session
Court Records : Online Access and Beyond
Moderator: Patrick Rogers, attorney, Modrall Sperling
Panelists:
Jon Kaney, attorney, Cobb and Cole, attorney
for the Florida First Amendment Foundation
Joline Gutierrez Krueger, reporter,
Albuquerque Tribune
(Mitch Elfers, Chief Deputy, U.S. District
Court, District of New Mexico didn't make it. May have gotten
tied up in
a traffic jam)
Patrick asked Jon to summarize developments in Florida.
Kaney explained that Gov. Bush had appointed him to a committee
charged
with exploring how to deal with the issue of court records on the
Internet. The committee has 15 members and includes judges, court
clerks, attorneys etc.
Bush appointed the committee because years ago Florida passed a
law
saying that all court records should be posted online. Two
counties were
the first to comply and soon all sorts of shocking documents were
showing up online.
Judges and attorneys and citizens were in a tizzy. The clerks of
the
court said they were simply doing as they were told. If a court
document
gets filed and put in a case file, it gets put online. If people
don't
want that information online, then don't file the documents, they
said.
"No one anticipated that the clerks would not distinguish
between
confidential and non-confidential documents," Kaney said.
The committee has three groups: the fatalists, who assume that
sooner
or later all court documents would be filed electronically; the
pro-access folks and the anti-access folks.
The chairman of the committee is Jon Mills, who represented the
Earnhardt family in the case to keep his autopsy photos
confidential.
Kaney said some in the media and some attorneys were worried that
the
committee was stacked against the access people. They began to
criticize
the committee. Kaney said that backfired because committee
members were
not inclined to accommodate those who were, in Kaney's opinion,
unfairly
criticizing the committee.
Florida has a constitutional right to privacy and the committee
agreed
that court files can't be used "as trash cans." Some
provisions had to
be made so that certain documents would not end up online.
"We needed to
to keep the crap out of the files," he said.
Eventually, the committee produced a draft report. It's called
"Florida
Supreme Court Committee on Privacy and Court Records." It
was issued May
6 and it can be found on the Florida Supreme Court website.
The gist is that the clerks are going to have to determine which
documents should go into court files and which are confidential.
If a
document isn't put in the file, it won't go online either. But
the goal,
he said, is that nonexempt documents should be up on the
Internet.
Kaney said the draft "is out there for comment" and he
invited everyone
to read it and share their thoughts.
Kaney said that because of the initial criticism of the
committee, the
draft has a "tone of pro-privacy and an anti-access
tone."
Patrick then addressed the situation in New Mexico. He said
there's
little access to state court records but that access to federal
court
records is good.
Joline said it makes sense for states to provide as much court
information as possible online because it enables reporters to
produce
better stories. Reporters can read the actual documents. The
stories
will be more accurate and "we won't get spun" by
attorneys for either
side.
Plus, she noted that it would be easier for court clerks to scan
a
document once and "then be done with it and then not have to
deal with
the likes of me."
Kaney said it's easier for federal courts to post documents
online
because they rarely deal with divorces, child custody issues and
guardianships, the kinds of cases that produce the most troubling
documents.
Kaney also discussed the concept of two-tierism. Some people
suggest
you put certain documents online and file more sensitive ones in
the
court file but not online. He said that's a bad idea because
legislators
would soon determine that the documents that were kept off the
Internet
should simply be made totally exempt. Kaney predicted that any
jurisdiction that adopted two-tierism would eventually see lots
of
information taken out of the public domain.
In response to a question, Joline said she had mixed emotions
about
some of the court information that's public. She cited child
custody
cases. She said most of that is exempt and she's certain that
keeping
that information secret results in the public never finding out
when
social service agencies make mistakes.
Patrick noted that since much of New Mexico is rural, having
court
documents online is a tremendous benefit for the public. But, he
said,
clerks say they need money to put all that information
online. Should
the public be charged for access?
Everyone agreed that fees that offset the actual costs incurred
would
be fine.
Everyone seemed to agree that in the current climate of
pro-privacy,
there will be great pressure to make more and more court
information
confidential just to make sure it never ends up on the Internet.
They
said everyone should be wary of that and resist it.
Notes from 2004 National Freedom of Information Coalition Convention
The National FOI Coalition held its annual meeting May 21-22 in Newark, N.J. NFOIC is a coalition of First Amendment and open government organizations from more than 30 states working together to protect the public's right to know.
NFOIC: Records
These notes cover sessions at the recent NFOIC annual meeting
related to various types of records: environmental records, court
records, and medical records.
ENVIRONMENTAL RECORDS
This session featured a single speaker rather than a panel. This
was a good decision. Bob Spiegel is an inspirational speaker with
more than enough ideas and information to hold everyone's
attention throughout the assigned time. This was not a technical
legal or journalistic session. Instead it was the first-person
report of a dynamic citizen activist.
Spiegel is one of the founders and presently the director of a
citizens group called "the Edison Wetlands Association"
(EWA). EWA works to promote the cleanup of toxic waste sites in
New Jersey, to conduct public education and related activities.
Spiegel ran the session partly as a workshop. He brought samples
of his FOIA letters and documents he has received, including
aerial photos of one of the major sites he has worked on. He also
brought a copy of the Molly Ivins book "Bushwhacked"
and played an audio tape of Ms. Ivins reading from a chapter in
her book that reports EWA's activities.
The Ivins material and much of the presentation focused on
Spiegel's pursuit of a company called Chemical Insecticide
Corporation, which produced "Agent Orange" and other
toxic materials in New Jersey. The tale starts with his discovery
of "green rabbits" at the production site. This leads
to his prodding the EPA to action, numerous FOIA requests and
other techniques used to obtain information concerning the site
and its owner.
His message is inspirational. When turned down for a document, he
says "No means Yes. When they say no, it just means I
haven't worked hard enough to explain the reasons why they should
release." It is also practical. He discussed issues such as
the effect of property values on residents' willingness to take
action. Regarding FOIA, he stressed that one should file requests
with multiple agencies at the state and federal level ("one
will turn you down, another will give you the document") and
when viewing documents, one should always visit the agency late
in the day, when the official guard tends to drop.
He also stressed working closely with the media. "Government
doesn't like bad press."
--Larry Repeta
COURT RECORDS
Access to court records is increasing in the online age, but it
is a state by state,
court by court proposition. Robert Port of the "New York
Daily News" says the irony is
that the 3d branch of government "is the most open and least
accountable...judges hate
to be observed closely by reporters..." Hence there can be
"guerrilla warfare" between
the media and judiciary. Among the current relatively bright
spots as far as access is
concerned are the federal judiciary (through its PACER system)
and New York State, which is adopting a progressive policy on
public online access via a panel headed by First Amendment
advocate Floyd Abrams.
William Bastone of "thesmokinggun.com" affirmed the
mixed bag on available court records. Bastone's site makes it its
business to obtain interesting court
filings nationwide. He agreed that PACER can be good for federal
filings, as can
places like L.A.'s civil trial courts. Bastone is concerned that
judges and court
officials tend to redact usually available public documents in
high profile cases,
such as happened in several pages of the recent Michael Jackson
indictment.
New Jersey hasn't caught up with other states on electronic
access to court
records, said John Paff of New Jersey Citizens for Justice.
Discussing efforts
to obtain files on attorney discipline in the state, Paff said
the "system in
New Jersey is almost impenetrable." The sole public access
terminal available
in some courts is "not user friendly." The result is a
denial of meaningful
public access to records in many cases.
Online availability of police reports also varies by states,
panelists agreed.
In these days of terrorism scares, some courts are keeping secret
dockets
of terror related cases. Some states may be rethinking access
policies if
there is a perception that too much is getting out
electronically. Barbara
Petersen reported an access cutback in Florida as the state re
studies what
should be available.
The panelists, perhaps a bit optimistic, expressed hope that
within a decade,
market forces and efficient records handling practices would move
access to
court records inexorably in a positive direction. Already,
private firms like
Lexis/Nexis are moving to fill gaps.
--Ted Gest
MEDICAL RECORDS AND HIPAA
Panelists: Ron Czajkowski, vice president, communications and
member services, New Jersey Hospital Association; Charles Davis,
executive director, Freedom of Information Center, University of
Missouri, Columbia; Robert Ellis Smith, attorney and publisher of
Privacy Journal
Moderator: Arlene Turnham, attorney with McGimpsey & Cafferty
This session was a spirited discussion involving a representative
of hospitals, who have struggled to comply with the regulations
while continuing to serve their patients and maintain a good
relationship with the media; a media representative who discussed
the extreme and sometimes ridiculous hardships created for the
media by the new law and regulations; and a privacy proponent who
believes the law has done a lot to protect people's medical
information from being used improperly.
Czajkowski said that the law and even the regulations draw from
the law have been confusing and complicated for hospitals to deal
with and have added a lawyer of bureaucracy in the hospitals .He
said the association came up with guidelines for member hospitals
that give direction on what information can be released and how
the system of patients "opting in" to allowing
information released works. People who take calls from the public
asking about a patient who is in the hospital but hasn't signed a
consent are to be told, "There is no such patient in the
directory." He said hospitals have the ability to release
information without consent if it is determined to be "in
the best interest of the patient." But the patient, who
perhaps is unconscious at the time, must be told immediately of
the decision when that becomes possible. He said media outlets
have turned to other sources, especially prosecutors, to get
information about people injured as part of crimes or accidents.
He concluded that hospital officials and the media have adapted
to the new law.
Davis presented a more critical outlook, saying that the
regulations interfere with the media to inform the public. Among
the examples of where the regulations have caused problems were a
school bus crash involving several victims in which the media and
the families could not find out any information about the names
of the people injured. He said efforts are being made to discuss
possible changes in the regulations with federal officials, but
not much progress has been made.
Smith said the regulations protect people from medical officials
and others from improperly sharing private medical information.
He said one little-known portion of the law allows people to
obtain their own medical records, something that has been
difficult in the past.
--Bill Theobold
NFOIC: Helps for State Groups
These notes cover sessions at the recent NFOIC annual meeting
related to activities of state coalitions: 1. Organizing and
maintaining a state coalition, 2. New Training Materials,
3.Record audits.
HOW TO KEEP GROUPS GOING
Panelists were: Katherine Garner, executive director, Freedom of
Information Foundation of Texas and National Freedom of
Information Coalition; Bob Johnson, executive director of the New
Mexico Foundation for Open Government; Moderator: Hollie
Manheimer, executive director of the Georgia First Amendment
Foundation.
BACKGROUND
Garner explained that the Texas group had its start in 1978
through the Dallas chapter of SPJ and the Dallas Morning News.
She said it now includes a diverse group of organizations,
including the Texas Municipal League, representing city
officials, and the ACLU. The primary focus is educating the
public and public officials on access laws in the state.
Johnson said the New Mexico Group was formed officially in 1990,
after an attempt to put it together foundered for several years.
He took over as its leader when he retired from the AP.
"People used to laugh at us," he said. "They don't
laugh at us now. They're afraid of us."
Manheimer the Georgia group was started in 1994 and she became
the first staffer in 1996.
The panelists and moderator discussed the differing heritages of
their groups, but all said that media involvement was key to
their startups and survival, financially and operationally.
"The work gets done by the journalists," Holly said.
MAKEUP
Some, such as New Mexico, have invited into their groups and on
their board people and groups that might have been opponents. Bob
said, for example, that the president of the Albuquerque Chamber
of Commerce was involved and so was the state's largest utility.
Bob said this collaboration has paid off. He said his group was
able to convince the attorney general to rule illegal so-called
rolling meetings - where public officials try to avoid the open
meetings law by conducting serial meetings in groups that don't
constitute a quorum.
ACTIVITIES
Several groups said they spent much of their time putting on
educational workshops. Georgia publishes guide books about the
state's access laws but works with groups representing government
officials, including the state school boards association, and
convinces those groups to sign off on the books, giving them much
more credibility with officials when a dispute arises. Ian
Marquand from Montana said his group provides a hotline to answer
questions. He said an attorney is paid a $600 a month retainer.
GOVERNANCE
New Mexico has 25 board members, distributed evenly around a
large, lightly populated state. Texas has a 30-member board and
conducts quarterly meetings that are moved around the state.
Neither has designated slots for organizations that are members,
although some organizations have asked to have a board spot
"reserved." The desire, Johnson said, is to have active
board members. Marquand said his board has five institutional
members and three at large and is solely journalism-related.
FUNDRAISING
Both Texas and Georgia do so-called "honoree"
fundraising, where a person is selected to receive an award for
helping promote the values of openness and the banquet is used as
a fundraiser. In Texas, the honoree's friends are solicited to
make donations in honor of that person. Participants discussed
the lack of foundation money available, beyond NFOIC itself.
MEMBERSHIP
Most groups represented don't appear to have members in the legal
sense of being voting members of the corporation. Instead, they
have honorary memberships based on the level of financial support
provided.
--Bill Theobold
New Training Materials Available
If you're looking for resources to help educate the public about
FOI, you'll find a new resource "FOI Interactive" to be
very helpful. The DVD and booklet (non-copyrighted) are designed
for open government groups to lead interactive role plays and
discussions. NFOIC board member Sue Hale produced the training
kit and is effusive about how well it works with all types of
groups from students to citizens to government officials. The
packet includes three scenarios -some fictional, some real - to
show the importance of freedom of information access.
To get a copy, contact the American Society of Newspaper Editors
at 703-453-1122 or Sue Hal at shale@oklahoman.com
-- Barbara Fought
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Record Audits
More than two dozen records audits have been conducted in recent
years - now spurring similar efforts in several foreign
countries. They've also prompted the National Security Archive to
"take on the feds," as NSA's Tom Blanton explained it.
The NSA decided to check on the impact of Attorney General
Ashcroft's'01 policy directive to see if it netted more
restrictions. So it asked 35 agencies for documents about to
policy and training related to the memo. The results: 39% of the
agencies changed their policies on federal FOI.
They also asked each agency for its 10 oldest FOI requests,
finding the oldest unfulfilled request dated back to 1987! NSA
learned that some agencies don't track whether their FOI requests
are answered so Blanton theorizes that the figures the agencies
report about their average response time might be pure fiction.
NSA plans to continue this project by looking at the impact of a
Andy Card 2002 memo, which Blanton believes may have had a more
chilling effect. See:
.http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB84/
Representatives from Maryland, New Jersey and Pennsylvania
explained their audits. Some of their tips included:
-Make sure what you request is public
-Chose documents of great interest to the public
-Chose auditors carefully and train them well
-Be prepared for a long process and give the public official
every opportunity to comply
-Have people available by cell phone for consultation on day of
the audit
-Publish everything - including the auditor's notes on a website
-Make sure your procedure is iron-clad
-Decide what happens if you come away with a great story - does
every participating media share it?
For a current directory to all the audits published so far see: http://foi.missouri.edu/openrecseries/index.html
Charles Davis of the FOI Center at the University of Missouri said he is publishing a tool kit (web and CD) later this year that will include all the resources needed for conducting an audit -- methodology, training, sample forms, etc. It will include links to all published audits and be searchable by topic and record type.
-- Barbara Fought
NFOIC: Secrecy and Terrorism (federal)
These notes cover sessions at the recent NFOIC annual meeting
related to secrecy and terrorism – most at the federal level
.
SECRECY IN THE AGE OF TERRORISM
Cindy Anderson, with US Dept. of Justice, stressed that balance
between openness and secrecy is very important and “we need
to be looking anew at this every day.”
Jonathan Hafetz, NJ media law attorney, argued that the federal
government has gone way out of balance in the Patriot Act Section
215. The provision allows government to compel records from any
person or organization for “an investigation to obtain
foreign intelligence or to prevent clandestine activity.”
Hafetz said unlike other laws, this section doesn’t sets
forth a test such as probable cause or relevance. Further, the
entity that has to surrender records can’t talk about it nor
tell the people whose records the FBI took. It’s unclear
whether the FBI has used this provision yet.
Even if the government isn’t, it’s having a chilling
effect, he says, noting that Muslim groups are reporting a loss
of membership and financial support.
An ACLU attorney in the audience noted a clever way around the
“don’t tell” portion of the law -- some librarians
are now reporting regularly to their boards that they have NOT
been subject to any requests under Sec. 213 from the FBI. So if
they don’t report that standard line at an upcoming meeting
– their silence sends a message!
The DOJ lawyer agreed, upon questioning, that the FOIA policy
under the Ashcroft administration is more restrictive than that
of his predecessor, Reno. In a hopeful sign however, she said of
the more restrictive Patriot Act II proposal: “it
didn’t happen, I don’t think it would have happened,
and I’ve put it behind me.”
She noted that the Homeland Security Administration is drafting
new provisions related to information about first responders and
evacuation plans during a disaster. She assured the group that
the public will have the opportunity to respond to them before
they’re promulgated.
Jennifer Borg, general counsel, North Jersey Media Group, gave
practical examples of how reporters have been stymied in getting:
1) a city’s disaster evacuation plan [turns out the
municipality was protecting an outdated plan with 15 streets that
no longer existed!], 2) access to a bail hearing of a person
connected to the 9/11 hijackers, and 3) Port Authority
transcripts of calls from persons in the World Trade Center to
determine information about rescue attempts/issues.
-- Barbara Fought
----------------------------------------------------
NEW FOI INITIATIVES BEGUN
So if a secrecy culture is growing nationwide, who is working on
making the climate more open? NFOIC conference attendees heard
about three new FOI initiatives.
A new coalition of advocacy groups, Open the Government, has just
launched a website. Rick Blum from “OMB Watch” said the
coalition brings together librarians, journalists, censorship,
environmental and labor groups. Partners listed on the website
total 34. All share some common interests about FOI and will work
more cooperatively together to share resources and speak with a
united voice.
In April the group released a report, “The Ten Most Wanted
Documents for 2004.” based on a informal (non-scientific)
Internet survey of 500 people that showed concern about 9/11
intelligence failures, contaminants in drinking water and
lobbyists’ gifts to Congress members. See:
http://www.openthegovernment.org
Pete Weitzel, formerly on the NFOIC board, is heading a new group
called the Coalition of Journalists for Open Government.
It’s comprised of 25 journalism groups who will work
together on training journalists, educating the public, federal
legislation and litigation. Weitzel noted that the American
Society of News Editors (ASNE) now has attorneys available in
each region of the country to do pro bono cases on open meetings
and records.
Dave Tomlin, asst. general counsel for the Associated Press
reported AP is upping its FOI awareness and asking each bureau
chief to become more involved in state coalitions, records audits
and staff training on FOI. The organization is considering
whether to fund a lobbyist in DC for FOI issues.
--Barbara Fought
--------------------------------------------------
SECRECY IN DETENTION AND IMMIGRATION
Jim Edwards, of “Brandweek” and formerly “NJ Law
Journal,” explained his legal challenge for access to
detention hearings of some of the 700-plus persons rounded up
after 9/11.
He attended one detention hearing at the request of the
defendant, but when the defense attorney mentioned his presence,
the judge kicked him out --over the protests of the attorney. He
lost his case in the federal circuit court but a judge in a
similar case in another circuit ruled opposite. The Supreme Court
declined to settle the difference.
Edwards said the result is that people don’t get to hear the
government’s reasons for deportation – many of which he
believed were legitimate. Also closure means citizens can’t
find out where the system is going wrong. He said the new
post-9/11 rules weren’t necessary because judges have long
had an option to close proceedings for national security.
He noted that a GAO audit showed that the FBI didn’t find
any terrorists among the detainees and their work on detention
cases clogged the system, keeping agents from pursuing
terrorists.
Edwards said several persons deported became suspects in their
home countries. One person suspected of being a risk was deported
to protect the secrecy of the investigation – ironically
secrecy became more important than the investigation!
Parastou Hassouri, an ACLU in New Jersey, explained that before
9/11 immigration hearings were open. Now even family members are
kept out. She said at least 80 men in her neighborhood were
detained. Some reported assaults in jail, cells lighted 24 hours
a day and music blaring all the time. They were allowed one call
to a family member a month and one call a week to an attorney
– too bad if the attorney wasn’t available. Attorneys,
she said, had difficulty even knowing where their clients were
housed because of a communications blackout.
--Barbara Fought
Barbara Croll Fought, Associate Professor of Broadcast Journalism
Newhouse School, Syracuse University
215 University Place, Syracuse, NY 13244-2100
315 443 4054 fax: 315 443 3946
http://web.syr.edu/~bcfought
bcfought@syr.edu