Across America, Sunshine Is Under Attack

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Here at MuckRock HQ we’re wrapping up Sunshine Week by requesting reports from mayors’ offices of just about every Occupy movement we can find. While we’ve had a good run of luck with officials at all levels of government lately, we thought we’d take time to highlight ways that officials at all levels of government are trying to dial back transparency.

Here are a few instances – some unfolding just this week – that show your right to access public information is never far from danger.

Strengthening executive privilege

In many states (including our home state of Massachusetts) , governors have exemptions to freedom of information requests that keep records such as emails and other correspondence out of view. But sometimes privilege leads to entitlement. One example is Maine Governor Paul LePage, who after making a campaign promise to increase transparency is working to restrict working papers and other “interoffice and intraoffice memoranda” from public view.

The legislation, which passed from committee to the House and Senate, is opposed by Maine journalists. But, as reported in the Bangor Daily News, a LePage attorney said without the exemption the governor would simply stop writing things down.

Blocking access

While the public has been given some access to court hearings for the accused WikiLeak source Bradley Manning, the most recent motions and orders filed in the case have not been made available to the press.

As the Reporters Committee for Freedom of the Press reports, journalists have demanded that the Defense Department loosen its grip, noting in a letter signed by 47 organizations that “the interest in openness in this case is not mere curiosity but rather a concern about the very integrity of this nation’s military courts — their ability to oversee the proceedings by which military personnel have their day in court to answer to and defend against allegations of serious offenses.”

The right to lobby in private?

In the waning days of the most recent Virginia General Assembly session, a bill that would shield the names of individuals writing in to legislators passed by with little notice. The bill’s sponsor, Delegate Mark Cole, told the Virginia Statehouse News that his goal is to protect the privacy of those contacting local governments “about child support or disciplinary issues in school.” The reality, however, is that the bill changes the long-held standard that interactions between officials and the public are, in fact, public.

The legislation still requires Gov. Bob McDonnell’s signature.

Bin Laden files missing

While James Madison’s home state isn’t showing his legacy much love, the Obama Administration is continuing to earn criticism for its less than stellar transparency practices, ranging from business-as-usual “not for attribution” discussions with administration officials to stating photos documenting the death of the most wanted man in the world can’t be found.

Photos of the raid that killed Osama bin Laden had been known from the first reports of his death. A request sent in May, however, wasn’t rejected because of expected security considerations. Instead, Department of Defense officials have said the documentation simply can’t be found. The AP reported a similar response to its request this week.

FOIA Friday: Money Mishegoss in Michigan and Other Stories

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Court Orders Obama Justice Department to Justify Some of Its Withholdings on Black Panther Scandal: During the 2008 Presidential elections, several members of the New Black Panther Party were implicated in a voter intimidation scandal. Fast-forward a few years, and independent watchdog group Judicial Watch has requested documents relating to the dismissal of the aforementioned trial. After a period during which the DOJ refused to release said information, U.S. District Judge Reggie B. Walton has now ordered the Obama administration to either release the requested documents or provide acceptable justification relating to their unattainability.

Transit Agency Demands $300 to Reveal CEO’s Salary: It would seem that Michigan state agencies have a habit of overcharging for FOIA request fulfillment. Back in aught-9, the State Police placed a $5.9 million price tag on the information regarding the state’s use of Homeland Security grants from 2002-2009. A few days ago, in Muskegon, MI, the city of Muskegon informed requesters that it would cost $300 to acquire data from the Muskegon Area Transit System on the salary and benefits of the authority’s CEO. This is an age-old anti-FOIA technique at work, one we’ve run into at Muckrock as well: drive away truth-seekers with exorbitant prices.

Romney’s Pitch to S&P Included Tax Hikes: In local news, Slate reports on the results of a FOI request that show how Mitt Romney convinced S&P—yeah, that name may sound a little familiar—to upgrade Massachusetts’ credit rating from AA- to AA. Not at all shockingly, he did so by pointing to tax increases, not—as many politicians claimed as the reason for S&P’s downgrade of the US’s credit rating—spending worries.

FOIA Lawsuit Forces CIA to Release Bay of Pigs Details: Finally, of potential interest to all the historians among us is this tidbit: The CIA is finally releasing the details of the Bay of Pigs operation through FOIA procedures. To follow the release and analysis of the information, check out the National Security Archive at George Washington University, which gets credit for the successful request.

FOIA Friday: This Was a Triumph

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As some of you may have noticed, America didn’t default this past week! So that’s one bit of good news. Of course, we still have to deal with all the factors involved in putting us in this economic situation, but not defaulting’s a good place to start! And since our government gets to keep on operating, we get to keep on making FOI requests. Here are some of the more interesting news tidbits along those lines:

Senate Passes Faster FOIA Bill Again Amid Growing Criticism: Here we go again. After a recent attempt (the fourth, in fact) to pass a Faster FOIA bill failed because of debt ceiling legislation that was tacked on, the Senate has once again passed a Faster FOIA bill (lucky number. . . five?) putting the onus on the House to finally make the bill law. The current model would “establish a panel to look into agency backlogs, analyze the hurdles facing requests and make recommendations to Congress and various government agencies after one year,” which sounds like a good step to me, but many open-government advocates say it’s simply going to create yet another meaningless commission. It may not matter, though, since the House has been the FOIA-bill-killer for a while now.

Court refuses to hold CIA in contempt over video destruction: Man, it’s enough to make you think the CIA might be hiding something, isn’t it? In the latest news in a suit brought by the ACLU against the agency in 2004, the U.S. District Judge presiding refused to hold the CIA in contempt even though the agency allegedly destroyed videos of harsh interrogations of terror suspects. The ACLU has been trying for years to being the CIA to task for their overly-harsh interrogation methods, but now Judge Hellerstein is, other than making the CIA pay the ACLU’s legal fees, letting the agency get away with destroying—and lying about destroying—some of the most solid evidence the ACLU could have brought forward. Never a group to be stopped easily, though, the ACLU is already fighting for the release of more documents that the CIA has up til now kept hidden away.

MariAn Gail Brown: Connecticut Supreme Court slaps down FOI Commission: From the Connecticut Post: Glastonbury native Karen Emerick had become a little suspicious of the Glastonbury Ethics Commission. After filing FOI requests with the group, she was vindicated in her suspicions: the commission was holding secret meeting that citizens were never told about nor given the opportunity to attend. The CT FOI Commission ruled that the Ethics Commission needed to provide full minutes of all private meetings. The commission failed to do so. Thrice more they tried to hide their activities from the public and thrice more Emerick filed complaints. Finally, the FOI Commission ordered the Ethics commission to maintain audio recordings for all closed-door meetings for the next three years. Reasonable for a commission that had shown a complete lack of concern for transparency, right? Well, apparently the CT Supreme Court would disagree, as it ruled that the FOI Commission overstepped its bounds. The Court reversed the order to the questionably-ethical Ethics Commission.

Can FOI requests be submitted on Twitter? Yes, says ICO: In some interesting FOIA news from across the pond, journalism.co.uk reports that the Information Commissioner’s Office (the independent authority in charge of, among other things, the upholding of FOI laws) sent out a newsletter clarifying a murky issue. Now, apparently, Twitter is a viable method of submitting a FOI request to an agency; as long as your Twitter account has your legal name attached to it, submitting a question to an agency’s official Twitter page counts as submitting a FOI request and, as such, agencies are required to address such a request within 20 business days.

FOIA Friday: Federal Edition

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This week, we have a whole host of links dealing with federal agencies and individuals and how they deal with FOIA disagreements. Here’s a hint: not well!

District Court Rejects DHS and ICE FOIA Withholdings That Conceal Misrepresentations and Embarrassment: In a bold move that strengthened the positions of plaintiffs Center for Constitutional Rights, the National Day Laborer Organizing Network and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, a district judge in New York has ordered Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI), and the Executive Office of Immigration Review (EOIR) to release more information on communities’ options to “opt-out” of the Secure Communities program. This is part of an ongoing fight between the plaintiffs and specifically ICE and DHS, as originally outline in this FOI Friday post.

EPIC v. NSA: FOIA Suit for Cybersecurity Authority Will Move Forward, though National Security Council Remains a “FOIA-Free Zone”: After the Electronic Privacy Information Center (EPIC) filed a FOI request with the NSA for information relating to their cybersecurity measures, the agency forwarded the request to the National Security Council instead of answering it, passing it into the hands of an un-FOIA-able agency. However, while a judge recently upheld the NSC’s FOIA exemption, the ruling also stated that the NSA was still responsible to respond to EPIC’s request on their own.

FOIA request seeks details of Justice Thomas’ jet and yacht travel: Supreme Court Justice Clarence Thomas has aroused a whole lot of controversy recently in the wake of a New York Times article that alleged Thomas had, after receiving $42,000 in gifts over six years prior to 2004, accepted as gifts the use of planes and yachts owned by real estate magnate Harlan Crow. Common Cause, a nonpartisan government watchdog, has filed a FOI request with the U.S. Marshals to determine if Thomas has traveled in Crow’s yachts or planes and, if so, if these trips have been properly reported.

Also, check out Muckrock’s Michael Morisy’s article on the failure of government transparency for Commonwealth Magazine here.

FOIA Friday: Post-Patriotism Edition

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Welcome back! I hope everyone had a good, safe Fourth of July, and now that we’re over this whole silly patriotism thing, we can move on to the important things in life. Like FOIA Requests!

Are Lawsuits The Only Way to Shake Records Loose From DOJ?: The question is raised by Channing Turner at Main Justice. Turner reveals that in spite of the flowery pro-transparency rhetoric of the Obama administration, the DOJ (and other federal agencies) are still resisting many FOIA requests. Lawsuits, which definitely get the agencies’ attentions, seem to be the path of recourse for many, but they cost the federal government a LOT.

E-Mails Show WI Justices’ Debate After ‘Chokehold’ — Meet With Police Vs. Photo Session: Wisconsin justice is more interesting than the rest of the US, it would seem. After a conservative justice supposedly put a liberal justice in a chokehold, the liberal justice advocated in private emails recently released to the Milwuakee Journal Sentinel. The attacked justice rightfully wanted to speak to the chief of the police force guarding the justices, but her coworkers were largely apathetic or resistant, citing a pre-scheduled photo-op as a conflict.

Illinois: Firearm Owners Identification Card FOIA Exemption Bill Signed into Law Today: The NRA won a victory in Illinois this past week, convincing the State Senate to pass a bill protecting the gun-ownership information of all citizens not under important investigation. NRA opponents had sought to acquire personal data of gun-owners in the state and compile it.

State Department FOIA requests unanswered four long years later: Finally, in news that shouldn’t shock anyone who’s ever had to deal with a protracted FOI process, the State Department is REALLY bad at filing and fulfilling requests on time. Many requests are several years old, some as old as four years, and the numbers aren’t getting better year-to-year.

FOIA Friday for the Fourth

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Want Details on VA’s Dell PC Deal? File a FOIA: NextGov.com, a website that looks at the relationship between technology and the business of government, reports on the VA’s new contract with Dell. While $476.6 million contract  for 600,000 PCs and monitors may not look skewed, it comes out to $749/computer, far above the retail price of $399. The VA, in a move that arouses further suspicion, has rejected Bob Brewin’s attempts to find out what the pricing and configuration of the contract are, forcing him to file a FOI request.

EPIC v. DHS Lawsuit — FOIA’d Documents Raise New Questions About Body Scanner Radiation Risks:EPIC (the Electronic Privacy Information Center), long an opponent of TSA’s new backscatter machines, has released documents acquired through a FOI request that show that not only have TSA’s testing procedures been lacking, but that they have also not taken requisite security actions after tests revealed cancer clusters in employees working with the backscatter machines. EPIC is engaged in an ongoing lawsuit against DHS.

Report: Feds downplayed ICE case dismissals: Thaaaat’s right, ICE are back! The reigning kings of information obfuscation and government opacity are now on the hook after recently-released documents reveal that high-ranking ICE personnel have put out orders to dismiss hundreds of immigration cases. Considering ICE had denied that very practice in Houston, where this report is centered, they seem to have placed their feet firmly in their mouths on this one.

Our View: Attorney General right to pursue FIOA denial: Finally, from Illinois – after the Freeport Township requested certain financial information from the township supervisor and assessor (related to perhaps-unwarranted pay advances to the supervisor and her employees) and were denied that information. The Attorney General of the state has now stepped in to investigate, a move that, while it probably won’t expose a conspiracy or anything, will at least add more impetus for transparent government in Illinois.

FOIA Friday: Jolly New England!

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I swear, I didn’t choose to write about all New England issues this week. It just sort of happened! I guess we’re just that interesting ’round here. Remember that most of the stuff we’re looking at can be found here anytime you like, and if you have any suggestions, please send them on over to tips@muckrock.com.

Past violations litter MBTA bus drivers’ records: Who here takes public transportation to get around? I do. I spend near-on four hours a day on various buses and trains. So when the Boston Herald speaks about the egregiously-lame hiring policies of the MBTA, I get a little peeved. And worried. It turns out that many of the drivers employed by the MBTA are in fact career road criminals, several with multiple moving violations and bad reputations. To get this information, the Herald requested the driving records of 25 randomly-sorted drivers after a driver was accused of playing a game of ‘chicken’ with another bus.

‘Arsenic and Old Lace’ Killer Records Found: Heading to Connecticut, we get to see some classic government difficulty-for-its-own-sake. The medical and psychological records of the woman whose poisonous plans became the basis of the film “Arsenic and Old Lace.” have been discovered by helth officials. The information was first requested by Ronald Robillard years ago, and he was told in response that the documents couldn’t be found. Now that they ARE found … well, Robert is still not getting his hands on them, apparently. Keep an eye peeled for this one in the next few weeks. (via NEFAC)

Door cracks open on government activity: Hooray for Vermont! The governor of that state has just signed into law a bill that adds protocols for winning FOI appeals to get their money back, as well as called for a review of the 250 exemptions to FOI laws. Advocates in Vermont, however, aren’t stopping there; they claim to have more plans for increasing government transparency. (via NEFAC)

Crushed by town pensions: I’m just going to open this entry with a fact: a single retired police chief in Stratford, Connecticut ”. . . if he lives to 75, the average life expectancy for a white male in this country will cost taxpayers $2.8 million.” This is caused by the bloated, inefficient and non-maintained pension system in Stratford and Connecticut at large. Click through to see what specific employees make in pensions. Because of the overtime-and-vacation based pensions, most money in the pension fund is concentrated to very few people, while the rest of pensions suffer because the fund is 51% unfunded. (via NEFAC)

FOIA Friday: Anthony Weiner Jokes!

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You thought we were above it, but if Jon Stewart goes there, so do we. Remember that most of the stuff we’re looking at can be found here anytime you like, and if you have any suggestions, please send them on over to tips@muckrock.com.

Now, without interruption, the news:

FBI investigated Sargent Shriver’s links to communists: We’ll start this week with an interesting look back on the politics of the past. R. Sargent Shriver Jr., who passed away in January, was the founder of the Peace Core, leader of Lyndon B. Johnson’s War on Poverty, and held numerous other political positions. After his passing, his FBI file was released through a FOIA request, revealing that Shriver had been investigated for Communist ties after being appointed by LBJ to the post of ambassador to France. One Red flag that arose in the investigation was Shriver’s travels in Europe with a youth group through the Experiment in International Living, who had previously been investigated for their sympathies towards Chinese Communists. The FBI was still investigating Shriver’s communist ties as late as 1986, when the agency reported on Shriver’s relationship with former campaign employee David Karr, who the FBI believed passed information to the KGB.

ICE Stalling On More FOIA Requests Concerning Domain Name Seizures: I’m beginning to doubt I’ll ever get to write one of these without having to call out ICE for something. One would think the agency wasn’t actually in support of increased government transparency! The horror. Anyways, the scoop this time is pretty simple: ICE has been seizing domain names, and people want to know why. Requests by Michael Robertson’s NakedGovernment and MuckRock’s own Aaron Schwartz (director of Demand Progress) have been stonewalled for months.

FOI hearing officer backs police on release of Haberek images: Man, what is it with politicians and sending illicit pictures to people they aren’t married to? No, I’m not talking about Anthony Weiner. I’m talking about First Selectmen Ed Haberek, who allegedly sent inappropriate pictures to an unnamed woman in 2010. The Connecticut-based newspaper The Day requested the pictures, which were sent from the Selectman’s town-issue Blackberry. After the original request was rejected, The Day appealed the decision, but the FOI Commission rejected the appeal because the investigation involved uncorroborated allegations and would reveal private information.

Public records outrage of the day: North Providence edition: Finally, from WPRI news: after reporter Tim White broke a story about a Providence, RI firefighter stealing prescription painkillers during an emergency call, he called the fire department to ask some followup questions. After gathering some basic info, he requested that, pursuant to Rhode Island’s public information laws, the department send over the arrest record. What he received was less a useful document and more a sheet of redactions and a few innocuous sentences, despite the assurances from the station that only names would be redacted. White refused to take that lying down, and after a new call to the station, received a much less-redacted document. You can compare the two by clicking the link, but what we can take away from this is that the attitude of redact first, ask questions never pervades even local government.

What Phil Mocek’s NCI Request Teaches Us

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Most FOI requests make, at the most, one ripple. Someone writes an article, others spread it, and then it’s forgotten. Sometimes, requests have a wider impact, with major papers printing about them. And sometimes, as in the case of the request filed on March 30th by MuckRock user pmocek, spread across the ‘net like wildfire, with everyone and their cousin holding an opinion.

Phil Mocek’s request, asking for “all records of communications regarding the creation and modification of National Cancer Institute’s Physician Data Query (PDQ) ‘Cannabis and Cannabinoids’ section, including but not limited to any discussion of any ‘direct antitumor effect’ of cannabis or cannabinoids, along with associated metadata,” was fulfilled early this month, and the results were, to say the least, interesting. Included in the files released were correspondences between NCI doctors and researchers and concerned agencies such as the National Institute on Drug Abuse (NIDA) and Food and Drug Administration (FDA), wherein the latter two agencies pressured the writers of the PDQ to omit information such as the potential tumor-reduction abilities of cannabanoids, as well as pushing for the addition of warnings about cannabis’ addictive potential and illegal status in the U.S. What made it into the final PDQ was still a good argument for the use of cannabanoids on chemotherapy patients—it relieves nausea and pain in such patients—but the internal politicking that led to omissions and edits is what makes this whole saga fascinating.

Cannabis falls into a sort of medicinal sweet spot where the FDA doesn’t approve its use because of lack of conclusive evidence of its supposed benefits (indeed, marijuana is a Class 1 restricted drug for individuals) but also refuses to approve the clinical trials of cannabis that would be required to prove such benefits. Much of the results used in the PDQ were from trials on animals, and therefore inconclusive when it comes to human benefit.

All of the cogent information (and much supposition) has been covered elsewhere, as you can see in the sidebar of the original request. What I find most interesting about what was released in response to Mocek’s request is how it reveals, essentially, the parts that make up a political machine. It’s all too easy to lose sight of the fact that governments are made up of people, and that those people have many differing viewpoints; from the outside, all we see is the party line. As such, the communications from people such as Donald Abrams at the NCI, who expressed sentiments such as “I am considering resigning from the Board if we allow politics to trump science!” are essential, because they remind us (and I use us to mean anyone who is for more government transparency) to see that there are indeed good people on the inside. There are those who want to edit the message, sure, but there are also the Abramses who resist the pressure of agencies like NIDA. And especially close to all our hearts here at MuckRock, there are the people like Phil Mocek, who ask the right questions of the right people.

FOIA Friday: Summer, Anyone?

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Okay, I’ll admit it, I had just run out of May puns. Luckily, we’ve a new month now! Unluckily, June is fairly unpunnable. Sigh. Remember that most of the stuff we’re looking at can be found here anytime you like, and if you have any suggestions, please send them on over to tips@muckrock.com.

Now, if you will, the news:

ACLU seeks records on ICE enforcement activities: Once again, the ACLU is clashing with ICE, and once again it seems that the the former are in the right. This time, the dispute is over the detention and assault of a lawful permanent resident and her son (an American citizen) in Grand Rapids in February. Mother Telma Valdez and her college-age son, Luis (born in the US) were grabbed by ICE agents when en route to a cousin’s house. An agent pulled a gun on the pair, and allegedly slammed Telma’s head into the side of the van that they put both Telma and Luis, handcuffed, into the back of. They were then driven to an apartment and questioned, which is when it became clear that they were both in the US perfectly legally. The ACLU has filed a FOI request for all the planning materials of the raid, as well as ICE’s racial profiling protocols and interrogation methods.

CIA Won’t Release All Info on Catholic Group Opus Dei: In a fairly bizarre case that began with a purely-academic FOI request, the CIA now faces a lawsuit from Public Citizen in support of Harry Carson, a graduate student at the City University of New York. Caron was working on his Ph.D. dissertation on the US’s involvement in Franco’s Spain when he found he needed more information on the Catholic group Opus Dei. He put in a FOI request for the CIA’s files on the group in June 2009, and though he received just over 200 pages, the more interesting part of the CIA’s response is the agency’s insistence that they cannot confirm or deny the existence of any further records. . . for reasons of national security. Public Citizen and Caron, unsatisfied with the implication that records that are at least 31 years old could have national security ramifications, have brought suit.

City of Vancouver fed up with FOI requests from journalists: Chad Skelton of the Vancouver Sun writes here about the submission filed by the City of Vancouver to Information Commissioner Elizabeth Denham that, in part, spent time complaining about the use of FOI laws by journalists. Primary among the city’s qualms is the habit of journalists of keeping a scoop secret before releasing their article (a process streamlined by MuckRock’s “Embargo” option), which it argues is using public-information laws for personal profit. The city also takes exception to “hundreds” of FOI requests that journalists are submitting every year, to which Skelton responds by saying he has only submitted one, and it was delayed several times by city bureaucracy.

Mayors, watchdogs at odds over changes to Illinois FOIA: Perhaps just to prove that US city and state officials can be as obtuse about FOI laws as their Canadian counterparts, there is a proposed amendment to FOI laws in Illinois that would limit all citizens to a maximum of seven requests per week. Frequent filers who pass that limit would have their requests put at the back of the queue and would remove the time limit on how long the agency can take to respond. Mayors across the state allege that this amendment would give the government more time to respond to requests, and that many requests are unfeasible given the time they have to be completed in.

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