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The Associated Press reports that the Department of Justice secretly obtained two months worth phone records from its reporters and editors. AP President and Chief Executive Officer Gary Pruitt said in a letter to the department that the records obtained were beyond the scope of any specific investigation, and called the actions a "massive and unprecedented intrusion" into how news organizations gather the news. Read more at the AP ...
New York State this week announced the addition of millions of records to the state’s data transparency website, open.ny.gov, which launched during Sunshine Week of 2011. New York’s is one of 39 state open data sites, according to data.gov. At least 39 county and city governments have similar portals.
The records span multiple state agencies and include, according to the news release, includes the following records:
New York State calls the expansion the latest step in an initiative from the governor’s State of the State address called Open New York, in which he outlined the use of technology to improve transparency and citizen engagement. The state also launched openbudget.ny.gov as part of the initiative.
After the Obama administration promised it would “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government,” it has since carried out an unprecedented campaign against federal government whistleblowers.
Since 2009, six government officials have been prosecuted under the Espionage Act, a World War I era act that had only been used three times before the current administration. The New York Times, ProPublica, The New Yorker, The Nation and others have all documented various aspects of the administration’s crackdown on whistleblowers.
This week, Bill Moyers’ site provides an overview of the six whistleblowers who have been prosecuted under the Espionage Act. The post accompanies this look at The War on Whistleblowers, a new documentary from filmmaker Robert Greenwald.
In a disappointing unanimous decision yesterday, the U.S. Supreme Court ruled that states can ignore public record requests from non-residents.
This is one of the most regressive, backward rulings the U.S. Supreme Court has issued on access laws for some time. Two reasons make this particularly alarming:
It’s imperative journalists fight back. Just because the court issued this backward opinion doesn’t mean states have to follow it. They may enact statutes allowing non-residents access to their public records, as most states do already. If you live in a state that excludes non-residents (Alabama, Arkansas, Delaware, Georgia, New Jersey, New Hampshire and Tennessee), get the laws changed through your press association.
Also, if you live in a state that excludes non-residents from accessing records, sign up as a MuckRock State Volunteer to help people acquire documents (https://www.muckrock.com/).
Don’t let this ruling get in the way of great reporting. Hold the line!
David Cuillier is director of the University of Arizona School of Journalism and president-elect of the Society of Professional Journalists. He is co-author, with Charles Davis, of “The Art of Access.” He writes the "FOI Files" column for The IRE Journal.
The U.S. Supreme Court decided unanimously today that the state of Virginia had the power to restrict public records access to residents of that state. Virginia limits freedom of information requests to its own residents and certain media outlets.
The case reached the court after Rhode Island resident Mark J. McBurney and California resident Roger W. Hurlbert sued Virginia for blocking access to public documents that an in-state resident could obtain.
They contended that the state’s practice violated the Constitution’s Privileges and Immunities Clause and its Commerce Clause. The court ruled that Virginia’s FOIA law “does not regulate commerce in any meaningful sense,” meaning it does not violate the Commerce Clause, and that it does not violate the Immunities Clause, which is meant to prevent the burdening of out-of-state citizens, because the law is “a service that is related to state citizenship.”
Megan Rhyne, Executive Director at Virginia Coalition for Open Government, said she was disappointed by the many references made in the opinion that seemed to give the public’s right to know short shrift.
“I don’t think it actually has a very good grasp on how people use public records day in and day out to make their decisions and take part in the democratic process,” Rhyne said.
She also noted that journalists and advocates for open government fear the ruling will allow other states to do the same in attempts to save time and money.
“That was certainly a concern that was raised when my organization was going to join the amicus brief,” Rhyne said, mentioning that the National Freedom of Information Coalition shared those concerns.
A handful of others states have similar laws, including Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey. Charles Davis, who teaches a class on access to information at the Missouri School of Journalism, said he hopes the ruling won't be interpreted broadly, but that the the court’s decision could be seen as essentially approving the law in those states as well.
“I’m of a mixed mind. My hope is that this is, as it reads, a pretty narrow procedural Commerce Clause sort of ruling and thus will not slop over into other states,” Davis said. “What frightens me about it is that it could inspire other states to see that the Supreme Court has endorsed this kind of residents-only clause. My fear is that it spreads.”
Already, discussion is happening amongst journalists, including on IRE’s NICAR Listserv, about workarounds for out-of-state restrictions, such as having a community of inter-state journalists who can file requests on each other’s behalf. Such arrangements would further complicate the process of negotiating for records and pose dilemmas for reporters dealing with exclusive stories that require records from those states.
Rhyne said she was unaware of any service that offered FOIA requests on behalf of out-of-state citizens, but added that in most cases requestors can find workarounds. For that reason, and because Virginia’s law provides for out-of-state media who publish in-state, such as The Washington Post, she does not expect the court decision to have a major local impact. The residents-only provision simply adds another roadblock to some citizens and reporters when dealing with a law that already has its shortcomings.
Michael Lee Pope, a reporter for the Alexandria Gazette who has previously reported on Virginia’s access to information laws, said the law could pose a problem in a situation like the Virginia Tech shootings, in which news organizations that don’t typically publish in Virginia would be seeking state records. Pope points out that there are many odd quirks in the Virginia public records law, including the fact that many police records are off limits.
When states are graded on their freedom of information laws, Virginia typically falls somewhere in the middle of the pack. However, according to the recent State Integrity project, Virginia ranked 47 out of 50 states with an overall grade of "F."
The Reporters Committee for the Freedom of the Press offers a look at the ;egal aspects of the case as well, as does the SCOTUS blog.
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Supreme Court Virginia Public Records ruling (PDF)
Supreme Court Virginia Public Records ruling (Text)
Reversing a position announced in March, the U.S. Department of State has stated it will make public the more than 800,000 comments submitted to date regarding the controversial Keystone XL pipeline.
In March, John H. Cushman reported for InsideClimate News that the State Department would not make public the public comments it received during the drafting of an Environmental Impact Statement for the pipeline, except through the Freedom of Information Act. Cushman, who said he makes a habit of reading the docket of public comments for reporting, said he was taken aback when he was told the comments weren’t available.
Despite being explicitly releasable under the law, and despite the agency creating an online docket of all comments, they were not to be made available proactively. The department told Bloomberg News that “consistent with past practice, the department does not plan to make individual comments public.”
That decision drew criticism from those who argued the public should have access to the comments online without entering into the lengthy FOIA process. Many argued that, because the comment period was open until April 22, withholding or delaying the release of information was hindering the public’s ability to engage in a public debate.
All public comments now will be made available before the State Department finalizes its Environmental Impact Statement and presents a recommendation to the White House. The comments are not yet available.
The decision marks a break from a recent trend of opacity noted by reporters, environmental groups and open government advocates. In 2011, the State Department was sued for not disclosing correspondence between then Secretary of State Hillary Clinton and a lobbyist for Keystone XL company TransCanada Pipelines. During the first environmental review of the project, the State Department lost 94,000 comments submitted by Sierra Club members and later wouldn’t accept a re-submission of the lost comments. Last month, Mother Jones reported that heavily redacted documents concealed the fact that the contractor involved in the review process has ties to TransCanada. And recently, the Sierra Club and other environmental groups requested an extension to this latest public comment period because the State Department hadn’t yet released documents underlying the draft impact statement -- documents that are public under federal law. The documents have not yet been received, nor has the extension been granted.
While public comments and relevant documents for draft regulations typically are made available through regulations.gov, that mechanism is not always used for comments received during other federal processes, such as a review of potential environmental impact under the National Environmental Policy Act, as in the case of the Keystone XL. But other agencies have set a precedent of making comments available in an online docket. Elizabeth Shope, an advocate for the Natural Resources Defense Council, noted that the Bureau of Land Management has done so under similar circumstances. The EPA has done so as well.
The information within public comments is often crucial not only to public debate but also to the outcome of processes like an environmental review. Reporters such as Cushman make a habit of reading the docket to inform their reporting. Organizations like the Natural Resources Defense Council use information already in the public docket -- which includes comments from other federal agencies -- to craft their statements.
“Public participation can mitigate potential environment and public health risks and there have been many examples of agencies changing or making adjustments to rules or guidance based on public comments,” according to Sofia Plagakis of the Center for Effective Government. In particular, she recalled that public comments to the Department of Energy prompted the inclusion of wildfire threats in its evaluation of the Los Alamos Nuclear Laboratory. Ultimately, the lab took steps to reduce wildfire hazards, which mitigated damage when wildfire did threaten the lab.
The public comment period for the draft Environmental Impact Statement ended April 22. The State Department now enters the National Interest Determination stage, the final stage before it makes its recommendations to the White House, during which it will continue to accept public comments. To access the State Department’s Keystone XL pages, which do not yet include access to public comments, visit this link: http://www.keystonepipeline-xl.state.gov/
By Jonathan Ellis, Argus Leader
Here’s a novel idea: If you take money from the federal government, the public should know how much you’re taking and for what.
That basic premise is at the heart of the Argus Leader’s lawsuit against the United States Department of Agriculture. The paper filed suit in 2011 seeking to force the department to turn over records of how much each business that participates in the food stamp program has earned from food stamps over the last five years. The lawsuit would force the disclosure of those records from more than 300,000 grocers, super stores, gas stations and other businesses that have voluntarily signed up to exchange food for government payments.
The journey to get those records has been long, and it currently resides at the 8th Circuit Court of Appeals.
Journalism organizations send letter to USDA
Last week, The Association of Health Care Journalists, along with IRE and five other journalism and open-government groups, sent a letter to the U.S. Department of Agriculture calling for the release of public information about the country's food stamp program. Read more ...
It started with my former colleague, Megan Luther, who is currently a trainer for IRE. She was curious about what kinds of foods people in the Supplemental Nutrition Assistance Program were buying with their benefits. Because almost all of those transactions occur with an electronic benefits card, she figured there might be data on food purchases.
There aren’t. Food purchases aren’t tracked by USDA. As an aside, USDA is currently studying purchasing habits. Last year, I requested the monthly progress reports from the firm retained to do the study. USDA sent me more than 30 pages of reports – almost all of it redacted.
Starting in the summer of 2010, Luther began making freedom of information requests. By the start of 2011, we had assembled a national database that showed the explosive increase in businesses signing up to participate in the program over a five-year period. As the number of people in the program expanded, businesses were signing up to capture some of the revenue from food stamps, which now costs $80 billion a year.
I wanted to know how much each of those businesses made over the years, but the department denied my freedom of information request. I appealed. And waited. And waited. As winter gave way to spring, and spring gave way to summer, we heard nothing on the status of the appeal. Our attorney, Jon Arneson, started badgering USDA for a response. When we didn’t get one, we went to court.
In August of 2011, Luther and I did a three-story package on food stamps. The main bar documented the rapid increase in the number of businesses that had signed up to take money from the federal government via food stamps. A second story was about our lawsuit to free up the records that USDA refused to release. The third was about how fast food companies were lobbying Congress to loosen the rules by allowing them to participate in the program – a version which also ran in USA Today.
USDA argues that it is prohibited by law from disclosing the records. When Congress created the modern food stamp program in the 1970s, it authorized the department to collect certain records from businesses signing up to accept the benefits. Those records, including employer identification numbers and sales amounts, were required to help the department verify that businesses were legit. The statute prohibited USDA from releasing the information.
In other words, it’s a withholding statute. We don’t disagree. But we argue that the amount of money businesses receive each year from food stamps isn’t included in the information the department collects when it’s enrolling a business into the program. After all, if a business is signing up to participate in the program, it doesn’t have revenue from food stamps.
The strongest legal position, in my mind, that USDA has with this argument is when a business re-enrolls, which happens every five years. The department asks each business for its sales figures. Obviously, food stamp revenues would be included in their sales amounts.
Still, food stamp revenues are only a fraction of the total sales that re-enrolling businesses report to USDA. The Argus Leader didn’t ask for the gross sales of these businesses, just the amounts they get from accepting food stamps. USDA doesn’t request that a business submit food stamp revenues when it re-enrolls, because the department already tracks those amounts. Thus, we believe that information is not included in the withholding statute.
Unfortunately, a federal district court judge in Sioux Falls sided with USDA’s interpretation of the issue. So we appealed to the 8th Circuit.
There are important public policy questions at play here. Food stamps are one of the most important safety-net programs offered by the federal government. But we have to keep in mind that the program was forged in the 1960s and 1970s. Hunger and poverty still exist, of course, but the characteristics have changed over the decades. Now, for example, studies show that the poor have higher rates of obesity and the accompanying maladies of obesity.
We don’t know how food stamp benefits contribute to that problem. Thanks USDA for those redacted reports! And while sales information for each business doesn’t answer these questions, it’s a start. How much money is spent at gas stations, which aren’t known for their healthy offerings? Are gas stations in urban food deserts raking in the money? And what about big corporations? How much are they pocketing from taxpayers, and what is their influence on the debate over food policy? Farmers’ markets are getting into the game, as well. For those who are concerned about nutrition, this is a welcome trend. But how widespread is the trend?
Finally, the data can help pinpoint instances of fraud. Why does one gas station report a huge amount of food stamp sales when the one on the next corner reports a much smaller amount?
The public deserves some answers for an important program that costs the public a lot of money. And so, to use a little highfalutin legal jargon reserved for the end of a brief, we hope and pray the judicial system agrees.
Jonathan Ellis is a projects reporter for the Argus Leader and a correspondent for USA Today. He joined the Argus Leader in 2005.
Last week, The Association of Health Care Journalists, along with IRE and five other journalism and open-government groups, sent a letter to the U.S. Department of Agriculture calling for the release of public information about the country's food stamp program. From the AHCJ blog:
Currently, the USDA refuses to reveal how much money individual retailers make from the Supplemental Nutrition Assistance Program, better known as food stamps. Additionally, the USDA does not disclose which products are purchased with SNAP dollars or how much is spent on each product, in aggregate.
The USDA’s position runs contrary to President Obama’s promise of government transparency, and stands in sharp contrast with practices at other federal agencies. For example, the Temporary Assistance for Needy Families discloses where recipients used their EBT cards to withdraw cash assistance. A wealth of information is available about Medicare and Medicaid.
“With any federal program, but especially one as large as SNAP, records should be public unless there is a compelling reason to hide them,” said the letter to Agriculture Secretary Tom Vilsack, signed by AHCJ president Charles Ornstein and leaders of the Association of Food Journalists, Investigative Reporters and Editors, the National Association of Science Writers, the National Freedom of Information Coalition, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists.
Also this week, the Society of Environmental Journalists is calling for greater transparency within the U.S. Environmental Protection Agency. The SEJ writes that the Obama administration has been far from transparent with the press and that the EPA is among the most opaque of agencies
"Reporters who have covered the EPA for several decades say the agency was far more media-friendly and open prior to 2000," according to the SEJ. "But media policies were substantially eroded during the administration of George W. Bush, and they’ve only gotten worse under President Obama.
...
"SEJ calls on the administration to streamline the handling of information and interview requests, and to allow more open and direct access to administrators, policymakers and the scientists whose research guides government decisions. We also urge EPA, Interior and Energy department administrators to hold regular news conferences, both in person and via conference call, to answer reporters’ questions on all topics."
By Judy Meyer
Maine is moving in the wrong direction when it comes to public access.
Blame technology.
The very computer systems and databases created to improve the flow of information and ease public access are now being held up, by lawmakers, as troublesome portals to be sealed shut in the interest of personal privacy. That easy access to public records is something to fear.
While fear is a good motivator to move people to action, it’s a poor foundation for drafting good public policy. But fear works, and lawmakers increasingly seem more moved by emotion than by information, more convinced by anecdotes than by facts.
Two years ago in Maine, the electronically stored email addresses of hunting and fishing licenses were moved under a shield unless a license holder “opted in” to a public database. This, after Kittery Trading Post sought access to the database for marketing purposes. Sportsmen didn’t appreciate the national sporting goods company’s access to their email, even though that’s a standard marketing technique long used by private companies, political parties and nonprofit organizations (even before email when we were actually putting stamps on letters).
Last year, the State Police-maintained database of accident reports was made confidential based on an impassioned argument that the database was a potential treasure trove for identity thieves, even though not a single case of identity theft was ever tied to access to that information. In truth, the weekly request by a local attorney for access to this database so he could search for potential clients — a request State Police found intrusive but could not deny under Maine’s Freedom of Access Act — was what got the confidentiality justification rolling and, ultimately, passed.
And, this year, there is a bill — LD 104 — before the Legislature to shield all email addresses obtained by any branch of government for “the sole purpose of disseminating noninteractive communications to individuals,” like newsletters to parents of public schoolchildren and meeting notices to those who sign up for municipal alerts.
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The bill is a direct response to the actions of a Falmouth man who, last year, submitted a request to the town for access to all email addresses contained in its “municipal bulletin” database. The man, Michael Doyle, got the list because FOAA does not shield addresses — street or email — for transitory correspondence in Maine. He then used one of those emails to hack the town’s website and send his own messages to townspeople to counter what he believed to be government propaganda. That situation was treated as an outrageous overreach of a citizen’s access to municipal information.
The “problem” of Mr. Doyle was brought to the attention of the Maine Municipal Association which, in turn, brought the issue to Maine’s Right to Know Advisory Committee, a committee that has advised the Legislature on FOAA since 2004 and which has oversight authority to recommend legislation.
That committee has requested a study of whether public access to email is a true problem in need of government intervention, or whether it’s an isolated nuisance in a single community.
No matter what that study may conclude, the specter of identity theft and the public’s shared fatigue of annoying emails are growing sentiments that are increasingly tough to separate from the need to maintain public access for our own and collective good.
Our fundamental right to public access to meetings of legislative bodies and associated depositories of public records, as decisively outlined in the Declaration of Independence, is being slowly seized by an oversized fear of computer technology’s reach.
As one lawmaker in Maine said last week, this is not 1981 any more.
The comment was made regarding the ease with which the public can now access electronic records, during an emotionally-charged work session of the state’s Judiciary Committee on a proposal — LD 345 — to end public access to concealed carry permits, access that has been available since 1981 when Maine’s concealed carry law was passed.
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At that time, the original proposal to require concealed carry permits shielded the personal information contained in applications, including psych evaluations and criminal background checks, along with the personal identifying information printed on permits: name, street address, physical description and dates of issuance and expiration. But, in a purposeful move then supported by the Sportman’s Alliance of Maine, the Maine Police Chiefs Association and the National Rifle Association, the Legislature pulled the permit and its personal identifying information out for public view to ensure the public could see for itself who is permitted to conceal carry.
Now, the NRA, the Maine Chiefs and the Sportsman’s Alliance say permits to conceal carry must be shielded from FOAA to protect private citizens.
The Maine Freedom of Information Coalition, a public access advocacy group, holds that public access to concealed carry permit holders offers a check to ensure that various officials award permits appropriately. There is no central authority for permit applicants to be screened, and applications are approved by dozens of entities, from State Police on down to three-man boards of selectmen in many rural towns. The consistency by which the permits are granted is not tracked in any official way, and maintaining public access to who grants which permits to whom guarantees some accountability of the governmental process.
There’s a more compelling public interest, though.
A couple of years ago, a Downeast Energy employee was shot to death while making a delivery. In what it sees as a legitimate move to protect its employees, last year the fuel company submitted a FOAA request for access to concealed carry permits so employees might know whether a homeowner may be armed.
There’s certainly no guarantee that an employee might not encounter an armed homeowner who doesn’t hold a permit to conceal, since Maine has one of the highest rates of gun ownership in the country but does not require guns to be registered, but Downeast takes this step to access what information it can to safeguard its employees.
However, lawmakers seem unable to hear this justifiable use of FOAA to over the din of privacy and gun rights advocates drowning any argument in support of public safety and government accountability.
Granting a concealed carry permit is a government-regulated activity, including a government-initiated application and review process, and government mandated enforcement of permittees. In Maine, state government regulates these permits just as it does permits for a host of activities that a private individual might conduct, including collecting suckers (a bait fish), owning wildlife and leading a church group camping trip. And, in many cases, the personal identifying information that appears on other permits is far more detailed that the information contained on a concealed carry permit, but no one is arguing to shield other permits. Only concealed carry permits.
In fact, the very groups that supported the public access to permits in 1981 are now vocally opposing continuing that access to “protect” permittees from would-be burglars. The justification to do so is being made because of “proof” that burglars track the addresses of concealed carry permit holders.
The evidence, supporters say, is tied to the Journal News’ decision last December to publish online interactive maps of concealed carry permit holders in two Upstate New York counties.
The problem with that “evidence” is that no burglar was caught red-handed with a copy of the Journal News map in his pocket, as dozens of Internet sites report. In fact, no burglar has been caught at all.
In the case of the White Plains burglary, police investigated an early theory that the burglary was connected to the map, but that theory never panned out.
In the case of the New City burglary, police said from the start they believed the crime was random and not connected to the map.
What has exacerbated the anti-access sentiment in Maine is that, after the Journal News’ map became a rally-cry by gun rights groups across the country to shield permits, the Bangor Daily News filed multiple FOAA requests for access to permits before a shield could be enacted. The newspaper made it clear in writing in its FOAA request that it did not intend to publish a “list” of these permits, but would use the information only for background on future reporting projects.
But, a police chief in Piscataquis County used Facebook to tell his supporters the Bangor Daily News had a different purpose, and the editors were not to be believed. And, so, they were not. Two days after the FOAA requests were delivered, the BDN withdrew its requests after members of its staff were physically threatened.
(It’s worth noting that in Bowerbank, Maine, the town next to where this police chief works, a local ordinance requires all homeowners to own guns and nobody fusses about the public knowing so.)
We, as a nation, love the notion of public access on an intellectual level. We believe in the need for government accountability and the greater good of our right to know how government conducts our business.
But, the heat of privacy interests fanned by the fear of intrusive technology appears to be moving us away from transparency. And quickly.
Is fear of technology going to accomplish what King George failed to inflict on us?
Government secrecy?
Judith Meyer is a law-abiding gun owner. She is also a managing editor of the Sun Journal in Lewiston, Maine, a member of the legislative Right to Know Advisory Committee, and a vice president of the Maine Freedom of Information Coalition.
Journalists don't need more reason to celebrate public records, but Sunshine Week provides a time for swapping tips and tricks, successes and horror stories. The EditorialMatters blog in Iowa spent the week posting tips like advice on requesting records, finding stories in those records, and avoiding all-too-common mistakes. Watchdog Wire shared their own tips on being a transparency watchdog.
The SPJ celebrated Sunshine Week by sharing their directory of FOIA resources by state. Anyone can look up laws, organizations and contact information for local experts at a glance.
The week of March 10-16, 2013, was full of open government discussions across the country. A piece of good news to come out of one is the new data.ny.gov site. New York governor Andrew Cuomo ordered state agencies to catalogue and share their data for the site, but the Times Herald-Record in Middleton, NY, said they hope to see actual enforcement of that order, even if it is a good sign.
The national FOIA portal, which hasn't seen total participation from federal agencies, was the subject of both an open government award and censorship this week. Bloomberg writes that the two EPA employees who won the award were unable to accept it in person. Also this week, Bloomberg reported on a draft bill that would create a single, national FOIA portal spanning all agencies.
And it looks like journalists aren't waging wars in court as often as they used to. The Transactional Records Access Clearinghouse released a study showing "media organizations as a whole appear to be challenging government secrecy at the federal level less often than in the past." FOIA lawsuits from the media dropped from 22 during Bush's second term to 18 during Obama's first term.
You can find more on Sunshine Week events and news at sunshineweek.org.
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