If you fill out the "Forgot Password" form but don't get an email to reset your password within 5-10 minutes, please email logistics@ire.org for assistance.
Bloomberg reports today that two lawmakers in the U.S. House plan to release a draft bill that would create a single portal for federal records requests.
According to draft legislation obtained by Bloomberg, the bill would put the burden on the fedreal government to prove why information should be withheld if requested under the Freedom of Informaiton Act.
“This bill strengthens FOIA, our most important open government law, and makes clear that the government should operate with a presumption of openness and not one of secrecy,” sponsor Elijah Cummings of the House Oversight and Government Reform Committee said in a statement Tuesday.
The draft bill comes after President Obama in his first term promised greater transparency in government, a promise that Bloomberg has previously found has gone unfulfilled in a sweeping request for cabinet leader travel records. Likewise, the Scripps Howard Foundation Wire found similar lags in fedreal agencies granting records, and the FOIA project at Syracuse University found lawsuits over FOIA have increased under Obama's tenure compared to President Bush.
The idea of a single portal for federal records isn't unprecedented. Earlier this year, Transparency Watch reviewed FOIA Online, a records request portal that currently includes only a handful of federal agencies.
Read more on the draft bill from Bloomberg.
Two years ago, the federal Consumer Protection Safety Commission launched saferproducts.gov, an online tool for consumers to review complaints and warnings about hazardous products. Since it launched, Fair Warning reports, the first lawsuit by a business attempting to conceal a complaint is "blazing new trails in judicial secrecy."
"Thanks to closed-door hearings, sealed records and a 73-page ruling with large sections blacked out, even the most basic details are concealed. That includes the identity of the plaintiff — known only as “Company Doe” — along with its product and the incident that led to the complaint.
"Adding to the mystery, the commission — for reasons it won’t disclose — decided not to appeal a federal judge’s ruling blocking the posting of the complaint and allowing the company to remain anonymous."
Consumer groups now claim that the ruling is a violation of the public's right to know, according to Fair Warning. Read more at Fair Warning or review the documents below.
//
The Arlington Gazette Packet reports that public records in Arlington come at a high price compared to neighboring areas in northern Virginia. Throughout Virginia, access to open records remains spotty. The State Integrity project, which ranks states based on their level of transparency, placed Virginia 47 and gave it a failing grade. Now, Michael Lee Pope reports, open government advocates are claiming Arlington's costly request system serve as an added barrier to public access.
"Want a booking photo in a high profile case? Get ready to hand over $24," Pope writes. "Want to see a copy of a report clearing officers who killed an unarmed teenager? That's $31.16. How about copies of all the Freedom of Information Act requests from a given year? The commander of Arlington County Internal Affairs estimates that will cost $573.25 for 10 hours of staff time."
The FOIA Project has documented more evidence of what its staff calls apparent failure of the Obama administration to fulfill transparency promises, and an upcoming expansion of the project could be a step toward establishing definitive evidence regarding the administration's level of transparency.
At the end of December, the DocumentCloud-powered venture from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reported that there were more court complaints asking federal judges to force FOIA decisions under Obama’s first term than under the last term of his predecessor, President Bush. Over the last two years Bush’s second term and the last two years of Mr. Obama’s first term, complaints increased from 562 to 720 -- a jump of 28 percent.
The FOIA Project’s findings follow reports over the past two years from the Washington Post, Scripps Howard News Service and Bloomberg News noting little improvement in open records since Obama’s memorandum at the beginning of his term calling for more transparency and that 19 of 20 cabinet-level agencies did not comply with basic FOIA requests.
The rise in lawsuits alone could be a result of several factors that remain unknown without delving into the details of each case, TRAC co-director Susan Long said, and by itself doesn’t show any definitive worsening in transparency.
“I don’t think there’s going to be any simple explanation, but the evidence is piling up that this administration isn’t delivering on its promises here,” Long said of the lawsuits. “It also corrodes public trust. That’s a very, very harmful thing. It’s a pretty core area of importance, and all the signals are really bad.”
Since 2011, the FOIA Project has gathered FOIA-related court cases, and now has a comprehensive repository going back eight years.
And soon, hopefully within the month, Long said, The FOIA Project will launch a new tool to track individual FOIA requests by agency.
Long said the goal of tracking FOIA requests is to determine what responses are like in more detail than the annual reports available at FOIA.gov. For instance, a heavily redacted document that offers no new information would be counted as a partial release rather than a denial.
“We want the transactional data that drives those annual reports,” Long said. “What is the basis for what they are saying no to? Do they sometimes grant fees? Are charges different? Are delays different for different kinds of requests? There are a ton of routine requests, but how long does it take to publish requests of real public interest?”
With a grant from the Ethics and Excellence in Journalism Foundation, TRAC has been developing a test application using FOIA logs from U.S. Immigration and Customs Enforcement. Eventually, the app will track a number of agencies, and will rely on user feedback to determine which agencies to include first. The site also offers the ability for users to upload their own documents.
“We’re trying to build not a complaint center, but something that is documented so people can think ‘there is a systematic problem’ and either document it or disprove it.”
By Joe Yerardi
Back in September, I filed a public records request with the City of San Antonio asking for their last five years of payroll data. When I received the responsive records earlier this month, I was surprised to find that the data did not include employee identification numbers.
As any data journalist worth their salt knows, employee identification numbers are the most reliable way to match individuals who appear in multiple records--both within the same table and across multiple tables. People change job titles. People change departments. They even change their names when they marry. But an employee ID number follows that employee from their first day of work until their last. Because of the way this data was formatted, I needed the IDs for matching individuals both within and across tables. So, I sent an email to the city's Finance Department, asking them to include the numbers.
I was surprised to receive an email in reply a couple days later in which one of the city's attorneys insisted that the ID numbers were exempt from disclosure under the Texas Public Information Act. The attorney pointed to a section in the Act that exempted any "access device" that "may be used to obtain money, goods, services, or another thing of value; or initiate a transfer of funds other than a transfer originated solely by paper instrument."
The city attorney specifically argued that, because certain city employees can use their ID numbers to access gasoline from a city gas pump for city vehicles, the IDs constituted such an "access device" and were thus exempt from disclosure. As I read the attorney's response, I was dismayed that the city was claiming the exemption but was confident that the Attorney General's office would not uphold such a withholding based on such a broad reading of the exemption.
Then, I ran a Google search for the AG's ruling that the city's attorney referenced in his response. When I found it, my confidence disappeared and my dismay turned to horror. In the October 30 ruling, the AG's office had upheld the withholding of employee ID numbers based on the cited exemption. In fact, the ruling had come about as the result of a public records request filed by one of my colleagues with the City of San Antonio seeking information relating to the Police Department's gang task force.
After speaking with an individual in the Finance Department, we were able to reach a compromise whereby the City would replace each employee ID with a string of meaningless but unique numbers, thereby achieving my desire for a unique identifier for the data while still withholding the actual employee ID numbers.
But even as I got what I wanted, this story doesn't have a happy ending so long as that AG's ruling remains on the books.
While the City was willing to work with me this time, that's no guarantee that other government agencies in Texas, once they learn of that ruling, will agree to any workaround that will preserve the function of employee IDs as unique identifiers. After speaking with an attorney for my newspaper, we decided not to challenge the City, concerned that two adverse Attorney General rulings would make winning any future lawsuit over the issue that much more difficult. Legislative lobbying during this year's legislative session seems like the best option to get the exemption narrowed. But for the time being, journalists in Texas operate under the shadow of an Attorney General's ruling that, if aggressively implemented, will seriously damage the ability of the press to serve as watchdogs of the public's money and as advocates for open and effective government.
Joe Yerardi is the data editor of the San Antonio Express-News in San Antonio, Texas.
A federal court in Manhattan yesterday dismissed a Freedom of Information Act lawsuit involving both The New York Times and the American Civil Liberties Union, who each sued the United States Department of Justice over records regarding the targeted drone killing of U.S. citizens Anwar Al-Awlaki and Samir Khan and Al-Awlaki’s 16-year-old son Abdulrahman in the fall of 2012. The records in question included a memorandum from the Justice Department's Office of Legal Counsel, which outlines the legal justifications for the killings.
ACLU deputy legal director Jameel Jaffer said in a release on the ACLU website: “This ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures. As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”
Read the Times article on the ruling here, which notes that the ruling by Judge Colleen McMahon included much "frustration with her own role in keeping the legal rationale for it secret."
The below excerpt from Judge McMahon's opinion illustrates the dilemma:
More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable "hot" field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever--growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules -- a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied, except in one limited respect. Final rulings on that discrete issue must abide further information from the Government.
See the full opinion on DocumentCloud.
//
null
Pennsylvania’s records laws were for many years among the most restrictive in the country, and though the letter of the law has since improved drastically, freedom of information advocates say the spirit of the law has lagged.
Pennsylvania overhaul of its Right to Know Law four years ago was a major victory for government transparency, journalist Patrick Kerkstra recalls in a recent article for The Philadelphia Inquirer.
Pennsylvania’s old public records law, enacted in 1957, put the burden on the requester to prove that the desired document was indeed public. The law also created a narrow definition of what was public: financial records such as accounts, vouchers or contracts and records of minutes, orders and decisions.
“Under the old law, reporters -- including myself -- had to construct exceptionally narrow records requests, and we chose our battles very carefully because the law really wasn't on our side,” Kerkstra said in an email. “So there was a real chilling effect. You'd get a rejection, and you'd be reluctant to appeal because the law was so bad. And public agencies knew it.”
The 2009 reforms made many drastic improvements, including:
All records are now presumed to be public, with exemptions. This is a reversal from the previous law
The burden of proving whether or not a record is public now rests with the government agency.
A state Office of Open Records was established to enforce the law and serve as a resource for citizens
“Under the new law, I personally feel emboldened to ask for a wider array of records,” Kerkstra said. He said he’s had much more success to getting records, though he believes that owes in part to a change in the Philadelphia mayoral administration, his principal beat.
Transparency Watch is an occasional series from IRE tracking the fight for open records. If you have a story about a quest for records you'd like to share, email web@ire.org.
Related Resources
Story pack: Filing FOIAs and getting what you want
National Freedom of Information Coalition
The new law is much improved with no question that records in Pennsylvania are now more accessible, said Kim de Bourbon, Executive Director of the Pennsylvania Freedom of Information Coalition, but there are still many shortcomings that need to be addressed. She outlined the top five problem areas she sees in the law via email:
In fact, she said, OOR orders are often ignored by agencies who hope the requester will just give up and go away, because the OOR has no power to enforce its decisions.
The result, she said, is that some agencies make it a matter of policy to always take more than a month to provide records.
Any record relating to or resulting in a criminal investigation may be withheld, and though information in a police blotter is public, most police departments say they don’t keep those kinds of blotters anymore, making it difficult to get information on even minor incidents. Certain non-criminal investigations are also exempt, which is open to broad interpretation and potentially exempts a wide array of records, depending on what an agency calls an investigation.
Records presented to a quorum are public, but because the law doesn’t deal with timeliness of record releases, nothing says these records have to be made available before a public meeting,
Beyond gaps in the law as written, freedom of information advocates like de Bourbon say a culture of secrecy has persisted, firmly entrenched after decades of law that enabled secrecy.
“We may have a new Right to Know Law,” de Bourbon said, “but bad attitudes about the public’s right to records are deeply ingrained in some officials -- they just don’t know any better, because under the old law, there was no presumption that the public had a right to see anything.”
Perhaps the most glaring example of such secrecy occurred at Pennsylvania State University during investigations into Jerry Sandusky, who was ultimately sentenced to 30-60 years in prison for child sex abuse. Inquiries into the abuse concluded that senior officials at the university were aware of the sex abuse and failed to take action to protect children from Sandusky.
In the midst of the Penn State scandal and in its aftermath, the state’s Right to Know Law has come under increased scrutiny once again. In March, Pennsylvania-area lawyer Michael Berry published a letter in the Pittsburgh Post-Gazette in March stating the state’s Right To Know Law was protecting criminals and failing the public.
Penn State and other “state-related” universities are not subject to the state's Right to Know Law except in very minor ways -- an exemption that made national news in the wake of the scandal and politicians rushed to introduce potential fixes.
“They were exempt before the overhaul, and -- miraculously -- they were exempt afterward,” Kerkstra said. “In my opinion, this exemption positively contributed to the culture of secrecy at Penn State. There's talk now, post Sandusky, of doing away with the exemption, but it didn't come up in the fall legislative session.”
Last month, Pennsylvania auditor general Jack Wagner declared that Penn State, the institution he said led the charge for university exemptions under the state’s Right to Know Law, should open its records and undergo major reforms in its governance to ensure better transparency.
Kim de Bourbon, who said she fielded many inquiries during the height of the scandal from out-of-state journalists who were appalled and confused about the exemption for Penn State, isn’t sure how much impact fixing that exemption would have had.
“But quite frankly,” she wrote, “even if Penn State HAD been obligated to make its records public under the new RTK Law, there are such broad exceptions for investigative records … that it is unlikely any of the Sandusky mess would have been made public any earlier.”
This past week, journalists on the NICAR Listserv began discussing the most outrageous price quotes they’d received for open records requests.
Canadian journalist David Weisz started the thread as research for a presentation he was giving to the Information Resource Management Association of Canada on the state of data journalism.
"Having filed ATI requests myself and hearing the horror stories of other journalists, I was curious to hear just how outrageous they got," Weisz wrote via email.
The responses poured in, and the journalists on the listerv agreed to let us share them on the blog. Here's a collection of some of the more expensive -- and unreasonable -- cost estimates journalists have received over the years. Help us add to the list -- if you have a story that should be included, send it to web@ire.org.
“Our subways have become notorious as of late due to the high-pitched shrieking they make around turns or while pulling into stations - I figured it would be interesting to map the complaints to find certain hot spots. At the time, I was interning at The Grid, a weekly Toronto publication with a focus on city life and municipal issues. After getting approval from my editor, I submitted a request for all of the TTC noise complaints going back the last four years. The Information Commissioner for the TTC responded and said that the fees for that much data would likely be exorbitant, and being on a time and monetary crunch, I just asked for the 2011 complaints. She eventually responded saying that the costs would be upwards of $1,000, as she would have to have someone print out the complaints, manually redact information and then send me the paper files. I instead asked for the files in an Excel-compatible format, but she said that they didn't use Excel, and cited their own proprietary database, which I had never heard of before. Deciding to do some research before pushing further, I told her I'd call her back.
“A quick search of the TTC website for the proprietary system (I wish I could remember the name, but I made the request using a now defunct Grid email) I quickly found that it was a custom build of IBM's Maximo Asset Management, database software geared towards larger institutions. A quick search of the Maximo site revealed that files could indeed be exported to .txt files. I called the Information Officer back, and had her confirm with her IT techs that they were in fact running IBM Maximo, and then pointed out it's ability to export to text. Just under a month later, I traveled to the TTC head office and picked up a blank CD with the records I was after, for a comparably cheap $50. In this case, I don't think the Information Officer was intentionally misleading me; dealing with her was quite pleasant. I just think it's another case of Information Officers lacking the proper technical knowledge to accurately assess an ATI request without consulting with their technical support staff.”
//
The response of $2 billion in costs took the agency months to provide, Porter said. He ultimately went a different route, he said, rewriting the request for similar data that the Drug Enforcement Agency had given to the Cleveland Plain Dealer, which was less detailed but also far less than $2 billion.
Transparency Watch is an occasional series from IRE tracking the fight for open records. If you have a story about a quest for public records you'd like to share, email us at web@ire.org.
This past summer, I reported for The Oregonian on the issue of child labor on farms, specifically the health and safety risks of such work and the existing protections.
A big part of the story was the fact that the U.S. Department of Labor killed its own proposed regulations that sought for the first time in 40 years to offer tighter restrictions for young farm workers.
I requested records of communication from the Department of Labor and the White House Office of Information and Regulatory Affairs, where the rules sat for review before they were killed. My requests were delayed for months. When the responses came from the Department of Labor, the included no direct correspondence between agencies, which I'd explicitly requested and which I knew to exist from conversations on-background with the labor department. The labor department didn't address those missing records. I received the White House records four months after my request, and they were heavily redacted and also missing communications I'd been told existed.
Farmers and industry groups such as the American Farm Bureau Federation had heavily criticized the proposal because they thought the rules overly restrictive and detrimental to small farms and lauded the decision to kill the proposal. But it riled many farmworker unions, workplace safety experts and child welfare and human rights advocates, who had expected the rules to pass without incident, much the way similar updates had for non-agriculture jobs only a few years prior. Suspicions began to circulate that the rules were killed for political purposes and that the decision came from the White House rather than the Department of Labor. Claims also circulated that industry lobbying swayed the decision.
I wanted to find out if there was any truth to that (which I ultimately found from lobbying reports and a source at the Department of Labor, not from FOIA requests), so I sent the following request to OMB (redacted portions are where I listed my cell phone number):
//
OMB Emails 2 (PDF)
OMB Emails 2 (Text)
I then amended that request after talking with Celeste Monforton, an occupational health expert at George Washington University, who advised me on how better to direct my FOIA request.
I then ran into months of delays, which included several phone calls and the emails below with the OMB FOIA office:
//
OMB Emails 3 (PDF)
OMB Emails 3 (Text)
I didn't have any better luck with the Department of Labor. I sent this request in June, and got back a link to the public repository of comments on the rule, which I'd already been through, and this collection of comments that were received after the deadline.
I also sent this request to the Department of Labor in July after getting so little back from OMB, explicitly ask the Department of Labor for communication between it and OMB:
//
DOL Emails 2 (PDF)
DOL Emails 2 (Text)
What I got in return, from separate departments within DOL, was the same link to the repository of public comments. These responses came after I'd already heard from a source at the Department of Labor that the White House made the final decision on the child labor rules and had sent a press release to be issued under the labor department banner (There are no records of such correspondence, or any other direct correspondence such as email, between the two agencies at the links below):
//
//
I sent an email reply to the Department of Labor about why these responses did not contain what I asked for, nor did they address why they did not contain what I asked for, but have not yet gotten an explanation. I've also spoken to the FOIA office over the phone and have not received an explanation for why correspondence I know to exist is neither provided or nor mentioned as exempt.
The day before the story was finally scheduled to run, I got a response from the White House with the documents below. The Office of Management and Budget said it had found 1,019 pages of documents relevant to the newspaper's request. Of those, 637 were being withheld in their entirety, and the remainder were released with redaction.
The White House said the documents were withheld or redacted "because their disclosure would inhibit the frank and candid exchange of views that is necessary for effective government decision-making."
Notations in the redacted documents refer frequently to (b)(5), an exemption in the Freedom of Information Act for "interagency or intra-agency predecisional, deliberative materials."
//
FinalFor12 139 (PDF)
FinalFor12 139 (Text)
//
12 139responsive Documents Set 2 FOIA Re DOL Draft Child Labor Rule 52 Pages With Redactions (PDF)
12 139responsive Documents Set 2 FOIA Re DOL Draft Child Labor Rule 52 Pages With Redactions (Text)
//
12 139responsive Documents Set 1 FOIA Re DOL Draft Child Labor Rule 390 Pages of Drafts Submitted and Concluded (PDF)
12 139responsive Documents Set 1 FOIA Re DOL Draft Child Labor Rule 390 Pages of Drafts Submitted and Concluded (Text)
The final story ran on Sunday, Sept. 30. I am appealing the FOIA responses and still hope to learn more about the reasons behind the decision to withdraw the regulations.
Questions and comments are welcome, as are insights about going through the FOIA appeal process.
You can reach me via email tony@ire.org or on Twitter @tonyvschick
Mark Lagerkvist of New Jersey Watchdog reports that the State of New Jersey is suing itself over a possible release of records to the website.
Lagerkvist reports that on Oct. 15, the state attorney general filed a motion seeking to stop the state Government Records Council from reviewing files, which on Aug. 31 had ordered state pension officials to turn over 26 records for inspection, to determine if any of those records should be released to New Jersey Watchdog.
The records relate to an alleged $245,000 pension scheme involving Lt. Gov. Kim Guadagno, which New Jersey watchdog first reported in 2010.
Transparency Watch is an occasional series from IRE tracking the fight for open records. If you have a story about a quest for public records you'd like to share, email us at web@ire.org.
Looks like you haven't made a choice yet.
