This is dangerous \ Great Public Policy \ The Records Watch \ Notes from the Capitol \ No longer a laughing matter \ Juvenile Records \ Winning Essays \ Citizenship training \ High Court will decide \ U.S. District Court rules ink must remain hidden \ Is FOIA in danger? \ FOI Board commends Attorney General \ New FOI Oklahoma President \ Freedom with Security \ James Madison Project \ From our readers
JUVENILE RECORDS
After the Oklahoma Supreme Court ruling last fall, HB 2610 by Rep. Hopper Smith (R-Tulsa) has surfaced. This clarifies the statute that requires a judicial review of juvenile records. Under HB 2610, the judge can merely receive a request and grant access to records, rather than having another full-blown hearing with petitions and waiting periods. If the judge says they’re open, they are open. This is a baby step in the right direction.
How has technology affected the 1st Amendment?
Students’ winning essays
1st Place By David McCrary – University of Tulsa
Whenever I think of Juneteenth, I think of good food and great jazz. When people celebrated the first Juneteenth, however, they were celebrating something altogether different, they were celebrating information. Observed every June 19th since 1865, Juneteenth represents the day when the last slaves heard of their emancipation. Despite being signed by President Lincoln on January 1, 1863, news of the Emancipation Proclamation and the liberation of slaves didn’t reach Galveston, Texas for well over two years. There are many theories regarding the delay, ranging from a murdered messenger to a conspiracy to delay by the Union, but the one thing that remains certain is that this vital information was spread at a snail-like pace.
Fast forward almost a century and a half later and the world is a completely different place. Two minutes in delay on news coverage is as unheard of and as unacceptable as two years. We don
The speed of information has grown exponentially. For years, gathering new information by news agencies was a slow process, only outdone in slothfulness by their delivering of it. The limited news sources of this nation, and indeed all nations, made news gathering and the spread of information a tedious task which resulted in there being very few sources of information. There were but a few heard voices in America then.
Contemporary America, on the other hand, faces the polar opposite. We are overloaded with information and voices. Technology, and especially the Internet, breeds new sources on a daily basis while also serving as an equalizing force among resources. Thanks to the Internet, Matt Dredge can be as influential as the Washington Post. You can be as important as Time. While before one had to be wary of information because of its limited origins, now a reder faces the opposite challenge: finding and filtering out real information amid the speculation and even falsities that have infiltrated much of modern media, especially internet media.
The abundance of “authoritative” voices has spawned yet another problem as well. People have always had a voice in America, the first amendment guarantees that, but only recently has everyone had the opportunity and means to be heard. With personal websites, e-mail, and television, it is easier than ever to reach a large audience. But that technology is available to all voices, including the ones most people don’t want to be heard. It has put us in the awkward position of having to listen to, or at least hear, everything, and that includes even the most radical positions.
With the good comes the bad. Technology has given us instant information while taking away the filtering service of centralized information outlets. Now we have to hear everything. But it is the cost of having a voice and gaining access to information. Having to listen, no matter the message, is a small price for having a voice in this new, technological democracy.
2nd Place: Invasion of a Past
By Emily Gard – Perry High School
Was I ready for this? One click would unleash the history of her past. I felt the power of predestined knowledge beneath my fingertips. My conscience kept fighting my urge. It was my right to know who I was, but was it her right to have a secret that had been hidden for the past eighteen years publicized to the world? The first amendment guarantees citizen’s freedoms such as religion, speech, and press. When does the “fine line” known as freedom surpass invasion of privacy?
As I searched desperately for a mother I never knew, I felt any line could be crossed or even bent. What I did not know was how much the 1st amendment was open for the world to view. My number one resource — the Internet. I scrolled through web sites and was utterly amazed at the vast informative power that I could wield with the World Wide Web and to think, I could be stripped of my personal identity if one curious person decided they wanted to know more about me.
I had little information while starting my search, but what I did not know, the Internet provided. I knew that she lived thirty minutes away from Houston, Texas. This gave me the name of five cities. I knew her first name and the name of her husband and searched through the Internet white pages and came up with possible matches. I knew her religious affiliation and began to search for the appropriate denomination of church. I called each church and received a last name to go with the first and proceeded to locate her address, telephone number and age. I knew more about her in one second than in a lifetime. I stripped all privacy of her being “her”. Then it came time to call. Through all this, I never once stopped to think about her feelings. When I did call, the shock of telling her I was the daughter she had eighteen years ago made her speechless. Once I recalled how I had located her, she felt very vulnerable that anyone could find personal information on her and her family just by searching information readily available through the Internet.
Through research, one could find out student report cards, public records, people on airline flights, property assessment records, legal filings and anything else that would satisfy a curiosity. This is information that should be kept in solitude, not broadcast for access by the world. Laws are not progressing to restrict the amount of public information accessible by private individuals.
What I did was a violation of my birthmother’s freedom and security. I only hope that restrictions of disclosure are placed on personal information. If I could have turned back the hands of time, I would not find my birthmother the way I did. I learned a lesson. The Internet is more powerful than any tool I know. Through it I have the power to change a person’s life. Sometimes, you experience the power but lose the person. It is not worth the loss, the hurt, nor the feeling of vulnerability. I only hope that this will not be repeated and no more people are hurt.
3rd Place: Freedom at Stake: the growing impacts of cyberspace on 1st Amendment rights.
By Carrie Spielman – Edmond Santa Fe H.S.
Speak to Americans today about regulation of the world’s fastes growing technology, and you will discover an alarming trend. While many support increased public access brought about by the Internet, they also feel threatened by intrusions upon their privacy. Despite constitutionality arguments, regulation concerning this twentieth century innovation could be well on its way to suppressing the ideals of freedom that Americans have cherished for over two hundred years. Desires to protect children from exposure to harmful materials and to safeguard the privacy of individuals are cited as reasons for which many Americans would welcome government regulation of cyberspace, even at the expense of 1st Amendment rights. Recently, the search for balance between the free-flow of information and the protection of individuals has found its way to congressional chambers and courtrooms. Yet at each turn, defenders of the First Amendment have fought these challenges to freedom with ideals of liberty I mind and Bill of Rights in hand. To date they have been successful, yet with the emerging influence of the Internet and a new set of battles before them, these protectors of free expression cannot let down their guard.
The framers of the Constitution were intelligent men. To calm fears of tyrannical power, they included a means for the people to check their new federal government. By allowing them the untouchable freedoms of press and speech, the founding Fathers had also created a democracy in which information could flow freely. This idea of unrestricted transmission of knowledge was the foundation upon which our successful nation was built. Developing technologies have allowed the public information arena to become more accessible to all.
The beauty of the Internet as media technology is its inexpensive access to virtually all Americans. Characteristics that led to the justification of government regulation of other media do not hold true in cyberspace. Cyberspace is a designated “public forum” in which free speech and press are permitted. Yet the realm of the Information Superhighway is a tricky one to navigate. In its attempt to provide an unlimited source of communication and information, the Internet has also raised some legitimate concerns over child protection and privacy issues. Public concern led to congressional response in 1996, with the passage of the Telecommunications Act and its hotly contested Exon Amendment, which sought to impose criminal penalties for transfer of indecent material to minors. Quick to respond were 1st Amendment protection groups, who battled the constitutionality of the Act to the Supreme Court, where although noted for its good intentions, it was deemed “vague” and a “burden on speech.” Courts have also been forced to determine whether companies that own website bulletin boards fall into the category of publishers, who are held responsible for their printed material, or simply distributors of information, who are protected under the First Amendment. Additionally, questions have been raised over the legal rights to privacy versus freedom of press. While some argue the protection of personal information online should be legislated, others see this as a government restriction on the free flow of information.
Even in the twenty-first century, issues regarding an over two-hundred-year-old document continue to be debated. The arrival of the digital age has done less to quell opposition to the unrestricted freedoms of speech and press than it has to inflame them. More than ever, Americans today must take measures to protect their basic rights, lest they become watered-down through careless legislation. It is essential to the continuing success of our democratic nation that the idea of free flowing information continues to endure.
Citizenship training
OKLAHOMA CITY -- In an effort to instill a sense of patriotism in students, state Rep. Bill Graves wants to require state school districts to teach students about the historical significance of some of this nation's early papers and documents.
Senate Bill 128, which was enacted last year, requires every public school to own and display a United States flag, authorizes the voluntary recitation of the pledge of allegiance, and instructs schools to educate students about the "history and etiquette" relating to Old Glory.
Graves' new legislation would require every school district in the state to offer instruction in at least one grade on the "history and perspective" of certain documents and papers. His proposal specifically mentions President George Washington's farewell speech, the Federalist Papers, the Declaration of Independence, and Patrick Henry's "Give me liberty or give me death" speech.
Graves said his legislation is especially needed after the Sept. 11 terrorism attacks. "Perhaps Oklahoma students will become more patriotic as they learn about the principles our country was founded on and still lives by," he said. "
The veteran lawmaker said the intent of the legislation is to "make children more aware of the freedoms we have and what those freedoms are based on, and to help them appreciate those freedoms."
High court will decide
By Tony Mauro,— Special to freedomforum.org
The U. S. Supreme Court has accepted a case with significant impact on FOIA requests.
CIA intrigue, murder and cover-up are the main plot lines in the case of Warren Christopher v. Jennifer Harbury, granted review last week by the Supreme Court. But important subtexts are the 1st Amendment rights of government officials, and whether officials can be punished for misleading or lying to the public. The case has its roots in the 199 disappearance of Guatemalan guerilla leader Efrain Bamaca-Velasquez. His American wife, Jennifer Harbury, devoted her life to finding him. U.S. government officials repeatedly denied any knowledge of his whereabouts, even though some CIA officials and others were aware that he was being held in secret by the Guatemalan army. It was later revealed that after being questioned, Bamaca was killed in 1993 on the orders of a paid CIA asset.
In 1996, Harbury sued U.S. government officials including Secretary of State Warren Christopher, National Security Adviser Anthony Lake, and ambassador to Guatemala Marilyn McAfee. She claimed that the misleading information put out by these officials had the effect of depriving her of her right of access to the courts. If she had known earlier what the U.S. government knew, she says she could have filed a Freedom of Information Act request earlier, and might have been able to seek injunctive relief in court that could have saved her husband's life. A federal district court judge dismissed Harbury's lawsuit, but the U.S.
Court of Appeals for the D.C. Circuit revived it, in spite of the immunity that usually protects government officials from lawsuits.
In an opinion written by Judge David Tatel, the court ruled that public officials may not mislead the American public to protect themselves from being sued. Tatel noted that several other circuit courts have found that "government cover-ups can infringe the right of access to courts."
That right, Tatel said, includes not only the right to go to court, but to have the court's review of a case be "effective and meaningful."
Because her husband was already dead and because of the government officials' actions, the court ruled, Harbury's access to the courts could not have been effective.
But in order for government officials to lose their immunity, the appeals court said that it must be clear to the officials that their actions were violating someone's constitutional rights. "We think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit," Tatel wrote. "Qualified immunity was never intended to protect public officials who affirmatively mislead citizens for the purpose of protecting themselves from being held accountable in a court of law."
In their challenge before the Supreme Court, Christopher and the other officials claim that the appeals court ruling "expands the constitutional right of access to the courts beyond all recognizable boundaries." In a brief by their lawyer, Richard Cordray, they claim that if upheld, the appeals court ruling could mean that government officials violate the law whenever they conceal information, "since it can always be claimed later that their actions were intended to and did hinder the filing of some hypothetical lawsuit."
Cordray continued, "This holding will chill the speech and the discretion of government officials." He said it could seriously hinder the conduct of foreign policy. In an interview, Cordray said the case also concerns government officials because it could expose them to suit for routine acts such as denying a request under the Freedom of Information Act. If such a denial could later be shown to have deprived the requester of a constitutional right, Cordray said, the officials could be sued.
The case will be argued before the Supreme Court in March or April with a decision by the end of the term in June or July. Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.
U.S. DISTRICT COURT RULES THAT WORLD WAR I GERMAN INVISIBLE INK FORMULAS MUST STILL REMAIN HIDDEN FROM THE PUBLIC
Decision Reflects Judicial Difficulties In Addressing Secrecy Vs. Openness Disputes
WASHINGTON, D.C. -- The Honorable Thomas Penfield Jackson of the U.S. District Court for the District of Columbia ruled that the National Archives & Records Administration ("NARA"), acting at the behest of the Central Intelligence Agency ("CIA"), can withhold the six oldest U.S. classified documents currently in NARA's custody. The documents, which date between 1917-30, were sought by The James Madison Project ("JMP") in a 1998 lawsuit under the FOIA and contain formulas for creating and detecting invisible ink, particularly those used by the German government during the Great War.
The lawsuit (JMP v. NARA, Civil Action No. 98-2737) reflects the classic struggle in the battle between secrecy and openness. Although the documents are nearly 100 years old, the CIA argued that the antiquated formulas and techniques were: "(1) currently viable for use by CIA agents; (2) building blocks for the CIA's more modern and sophisticated methods of using or detecting secret writing; (3) used to test current CIA secret writing systems for vulnerabilities; and (4) used to develop new formulas and techniques for secret writing."
We're obviously disappointed with the court's decision. The CIA's refusal to release such historical information denigrates its credibility in withholding information that truly must remain secret. said JMP's Executive Director. He added that the documents were created by foreign governments no longer in existence or federal agencies, such as the U.S. Postal Inspection Service, that have no classification authority and even previously published the same information. The lawsuit was specifically brought to illustrate the absurdity of the classification system.
IS FOIA IN DANGER?
THE PRESIDENT didn’t ask the networks for television time. The attorney general didn't hold a press conference. The media didn't report any dramatic change in governmental policy. As a result, most Americans had no idea that one of their most precious freedoms disappeared on Oct. 12.
Yet it happened. In a memo that slipped beneath the political radar, U.S. Attorney General John Ashcroft vigorously urged federal agencies to resist most Freedom of Information Act requests made by American citizens.
Passed in 1974 in the wake of a scandal, the Freedom of Informatio Act has been hailed as one of our greatest democratic reforms. It allows ordinary citizens to hold the government accountable by requesting and scrutinizing public documents and records. Without it, journalists, newspapers, historians and watchdog groups would never be able to keep the government honest. It was our post-Watergate reward, the act that allows us to know what our elected officials do, rather than what they say. It is our national sunshine law, legislation that forces agencies to disclose their public records and documents.
Yet without fanfare, the attorney general simply quashed the FOIA. So, rather than asking federal officials to pay special attention when the public's right to know might collide with the government's need to safeguard our security, Ashcroft instead asked them to consider whether "institutional, commercial and personal privacy interests could be implicated by disclosure of the information." Even more disturbing, he wrote: "When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."
When coupled with President Bush's Nov. 1 executive order that allows him to seal all presidential records since 1980, the effect is positively chilling.
In the aftermath of Sept. 11, we have witnessed a flurry of federal orders designed to beef up the nation's security. Many anti-terrorist measures have carefully balanced the public's right to know with the government's responsibility to protect its citizens.
Almost all Americans agree that the nation's security is our highest priority. No one would argue against taking detailed plans of nuclear reactors, oil refineries or reservoirs off the Web?
Yet half the country is also worried that the government might use the fear of terrorism as a pretext for protecting officials from public scrutiny.
For more than a quarter of a century, the Freedom of Information Act has ratified the public's right to know what the government, its agencies and its officials are doing. It has substituted transparency for secrecy and we, as a democracy, have benefited from the truths that been extracted from public records.
Consider, for example, just a few of the recent revelations -- obtained through FOIA requests --The Washington-based Environmental Working Group, a nonprofit organization, has been able to publish lists of recipients who have received billions of dollars in federal farm subsidies. Their Web site, www.ewg.org, has not only embarrassed the agricultural industry, but also allowed the public to realize that federal money -- intended to support small family farmers -- has mostly enhanced the profits of large agricultural corporations.
The Charlotte Observer has been able to reveal how the Duke Power Co., an electric utility, cooked its books so that it avoided exceeding its profit limits. This creative accounting scheme prevented the utility from giving lower rates to 2 million customers in N. C. and S. C.
USA Today was able to uncover and The National Security Archive, a private Washington-based research group, has been able to obtain records that document an unpublicized event in our history. It turns out that in1975, President Gerald Ford and Secretary of State Henry Kissinger gave Indonesian strongman Suharto the green light to invade East Timor, an incursion that left 200,000 people dead.
By examining tens of thousands of public records, the Associated Press has been able to substantiate the long-held African American allegation that white people -- through threats of violence, even murder -- cheated them out of their land. In many cases, government officials simply approved the transfer of property deeds. Valued at tens of million of dollars, some 24,000 acres of farm and timber lands, once the property of 406 black families, are now owned by whites or corporations.
These are but a sample of the revelations made possible by recent FOIA requests. None of them endanger the national security. It is important to remember that all classified documents are protected from FOIA requests and unavailable to the public.
No one disputes that we must safeguard our national security. All of us want to protect our nation from further acts of terrorism. Yet these secrets have exposed all kinds of official skullduggery, some of which even violated the law.
We must never allow the public's right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.
FOI Board commends Attorney General Drew Edmondson for openness efforts state-wide.
During the Fall of 2001, the AG conducted ten workshops in cities and towns across the state. Four of these were specifically directed to law enforcement agencies.
Dr. Terry Clark becomes President of FOI Oklahoma
Dr. Clark , Chair of the Department of Journalism at the University of Central Oklahoma, succeeds Lindel Hutson of the Associated Press as President of FOI Oklahoma. Mark Thomas, Director of the Oklahoma Press Association was elected Pres.-elect and Ben Blackstock was re-elected as Treasurer.
Freedom with Security
The theme for the 2002 1st Amendment Congress is Freedom with Security….
The 4th annual Congress will be held in Constitution Hall at the University of Central Oklahoma November 7 – 8. The creation of Homeland Security offices around the country are sounding alarms with many FOI groups. This year’s Congress will look at this issue: How can we feel secure and maintain open government?
The James Madison Project
www.jamesmadisonproject.org.
The James Madison Project is a Washington, D.C. based non-profit organization that was established in 1998, to promote government accountability and the reduction of secrecy, as well as to educate the public on issues relating to intelligence and national security through means of research, advocacy and the dissemination of information.
&# We are always looking for ways to better develop the laws and policies surrounding the Freedom of Information and Privacy Acts, and foster greater openness in our society without unnecessarily infringing upon any individual's right to privacy,” said Mark S. Zaid, Esq. Executive Director.
The Commission on Protecting and Reducing Government Secrecy, a bi-partisan entity chaired by then-Senator Daniel Patrick Moynihan, concluded in 1997 that "[t]he best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall."
www.citizenaccess.org
How much does your state government let you know? A comparative guide to state laws controlling citizen access to government meetings and records.
The Marion Brechner database will eventually provide a wide variety of information and resources about freedom of information law in the 50 states and the District of Columbia, including ratings, summaries, and the legal language of open meetings and public records. Users will be able to research the laws of individual states as well as compare the laws of different states.
In addition, you can find complete legal capsules and ratings for the indexing, delivery and customizing of computer records as well as information in Geographic Information Systems.
The Marion Brechner CAP is a project of the Brechner Center for Freedom of Information of the College of Journalism and Communications at the U. of Florida. It has been primarily funded by Marion Brechner, an Orlando broadcast executive.
From our readers
Agenda and minutes posted
As always, I enjoyed the current newsletter and learned from its contents.
In response to HB1276, we quickly posted our agenda along with the dates of the Ardmore Higher Education Center's Board of Trustee's quarterly meetings on our web site. However, we went one step further and decided to also include the approved minutes on our web page so all who are interested may read the issues, discussion, and decisions of the Board on behalf of the citizens of Oklahoma. See our web page at http://www.ahec.osrhe.edu —– Mary Jane Hamilton, Director.
Copies cost more at some government offices.
Ask to see their statutory authority before paying more than $.25/page as set in the Open Records Act (24A.5.3 O.S. 51). The state Workers Compensation Court now charges $1.00 to open a file then 50-cents for the first page, 25-cents thereafter. That according to staff attorney Daniel Springer is 110 O.S. 85 effective 1 July 2001. Some police departments charge $4.00 per page without state authority to do so. Kinko's charges eight cents.
Page 1