1st Amendment Congress honors Justice Marian Opala \ Freedom Sings \ FOI Oklahoma funds First Amendment resource centers \ A National Issue \ Revival of Civics Education Explored \ Cellular & cordless calls \ Open Meeting Issue Cloudy \ News in Brief \ Cherokee FOI/Privacy Law \ America Changed on September 11 \
1st Amendment Congress honors Justice Marian Opala
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. -- The First Amendment to the U.S. Constitution.
The Honorable Marian Opala, Oklahoma Supreme Court Justice, was born in Poland in 1921 and became a U.S. citizen in 1953. He was appointed to the state's Supreme Court in 1978 by then- Governor David Boren and has served for 14 years. The author of numerous legal papers, Opala is an adjunct professor in three law schools, a frequent lecturer at various national judicial and legal education programs and was recipient of the 1997 Oklahoma Bar Association's Award for Judicial Excellence. During this Fourth Annual Conference, FOI Oklahoma will implement a new 1st Amendment recognition Award named for Justice Opala. FOI Oklahoma Inc. is accepting nominations for the first Justice Marian J. Opala Award. The award will be presented to an Oklahoman who has promoted education about or protection of the individual rights guaranteed under the First Amendment. Please include name of nominee, address, brief bio, and what this person has done to promote education about or protection of the individual rights guaranteed under the First Amendment. Also include name, address and phone number of the nominator. FOI Oklahoma, P. O. Box 2408, Edmond, OK. 73034
Freedom Sings .. A presentation from the 1st Amendment Center in Nashville, TN.
Ken Paulson, Executive Director of the 1st Amendment Center is the keynote speaker from 1:00 - 3:15 p.m. Thursday, November 7 at the 4th Annual 1st Amendment Congress at UCO. "A major contributor to the vast ignorance about the 1st Amendment is our education system, which fails to teach the Constitution", according to Paulson. Freedom Sings makes learning fun. It is well-balanced, provokes thought, and appeals to all political perspectives. It highlights the point that the same Constitution that protects the rights of people who say things with which you disagree also guards your right to say something with which other people disagree.
FOI Oklahoma funds libraries statewide for First Amendment resource centers
Using a grant supplied by the National Freedom Of Information Coalition, FOI Oklahoma has caused the setting up of books and other documents relating to the First Amendment at five libraries across the state. At a time when a large percent of the public is said to be ignorant or indifferent about the Bill of Rights this effort should help. According to an annual poll conducted by the 1st Amendment Center and American Journalism Review, just 14% of Americans know that freedom of the press is guaranteed by the Constitution, 18 percent are aware that freedom of religion is protected, 10 percent know they have a constitutional right to peaceably assemble and a minuscule 2 percent think they can petition their government to redress grievances. And more than 40 % said that newspapers should not be allowed to freely criticize the U.S. military's strategy and performance. 4 in 10 say they would limit the academic freedom of professors and ban criticism of government military policy. Model library projects have been funded at the Tulsa City-County Library, Bartlesville Library, Metropolitan Library - Oklahoma City, Ponca City Library, and the Altus Library. Approximately $2,500 was sent to each Library to obtain books and related materials from a bibliography of 1st Amendment, Freedom of Information materials selected by the libraries' Intellectual Freedom Committee with the help of academic scholars. This bibliography is available on the FOI website. In addition, the Oklahoma Department of Libraries has funded 1st Amendment Centers (not established yet) in Clinton, Muskogee, McAlester, and in the Chickasaw Library System in Ardmore. Now we need librarians, teachers, reading students and parents digging into these resource banks. Go by and check it out. Compliment the librarians. Urge teacher friends to tell students about what they can find here. A few class assignments in appropriate classes might drive out some ignorance and indifference. And, bring about a little more concern when Security issues seem to weaken a few more of our rights.
A National Issue: Proposed policy on court records threatens public access rights
Prompted by the growing demand for the electronic availability of public records, a coalition of state court administrators offered a model policy on access to court records that could, if put into effect, restrict access to a variety of records.
"These new circumstances require new access policies to address the concern that the proper balance is maintained between public access, personal privacy, and public safety, while maintaining the integrity of the judicial process," the policy reads.
The State Justice Institute funded the effort to draft a model policy for the states, a project undertaken by The Justice Management Institute. The Model Policy Project Advisory Committee held a public hearing on the proposed policy on May 17 in Washington, D.C.
Access to some records may be "inappropriate," the coalition determined, requiring the need for the new rules. The proposed policy cuts off access entirely to certain categories of records. Section 4.30 denies access to a wide variety of material including financial information, proprietary business information, copyrighted material, sealed records and "information that is not to be accessible to the public" pursuant to federal or state laws.
Although there is a long-standing rule that the public may not access sealed records, the effects on other categories of information are unclear. If the material was disclosed by the federal agency and used in a lawsuit, it is unclear why the courts would not be permitted to allow public access to the material. The proposed policy suggests that a balancing test be used to close off access to other records. This test weighs "risk of harm" and "privacy interests" against general interests in favor of access.
Under current law, access to records may be denied only where there is a compelling interest at stake and the denial of access is narrowly tailored to serve that interest. Most cases on the subject have held that privacy or a theoretical risk of harm are insufficient grounds to restrict access. Thus, if the proposed policy were to become effective, it would substantially change the public's right of access to court records.
In comments filed about the policy, the press groups reject the new balancing test as too vague.
"Even if the public's right of access to court documents could be restricted in certain circumstances, a court would need to specifically delineate what compelling interests would be at stake rather than rely on a vague and ambiguous term such as 'privacy,' the comments read.
Ted Gest, president of Criminal Justice Journalists, a national org. of reporters covering crime and justice, said the proposal's drafters offered no evidence that online access to court files would cause major problems any more than open files in the courthouse do now.
Revival of Civics Education Explored
Need: A recent article from the Washington Post says that civic education is a thrust of the Bush administration and should be back in the curriculum of the schools.It is included below: By Dana Milbank
Advisers to President Bush are developing an ambitious package of policies to convert the patriotic outpouring sparked by Sept. 11 into a systematic effort to teach love of country to school-age Americans. The advisers do not seek to encourage flag-waving and sports-arena chants of "U.S.A." Rather, they favor an effort to restore civics education in American classrooms as part of a broad initiative to teach the obligations of citizenship. The administration is eager to make civics education a staple of U.S. education, as it was in the 1950s and 1960s before the divisions over the Vietnam War largely put an end to such classes. The subject is potentially controversial. Some conservatives will oppose any form of a federal mandate to schools. Some liberals will be wary of government efforts that could be seen as encouraging obedience to authority or support for the current administration. But the notion of citizenship education has support from a broad range of Democrats and Republicans. John Bridgeland, director of the president's national service initiative, said a "working group" has been formed to find ways to boost civics education. The task force does not have a specific time frame, but "it's underway," Bridgeland said. "We're looking really seriously at it." Ideas likely to be part of any plan include federal incentives for states to adopt civics education classes and standards in public schools, expansion of "service learning" classes that give credit for community volunteer work, drafting of a broadly accepted civics curriculum and use of the presidential bully pulpit. From the 1920s to 1960s, at least half of American high school students took civics classes, according to a study by University of Rochester political scientist Richard Niemi. By 1994, that number had fallen to 10 percent. Civics education was replaced by government classes that do not deal with citizens' involvement. "There's been a decline in the quantity and quality of civic education," said Michael Delli Carpini, director of public policy at the Pew Charitable Trusts. The result is reduced voter participation and less community involvement, Delli Carpini said. "Young people are less likely to vote and participate politically," he said. High school graduates 50 years ago knew as much about government and politics as college graduates do today. And, according to the National Assessment of Educational Progress, 75 percent of school-age Americans lack proficiency in civic knowledge. Bridgeland and other Bush aides have been talking with liberal and conservative experts on civic involvement to solicit ideas, and they are finding broad support for using the Sept. 11 attacks to spark a revival. "This is exactly the right time for a renewed emphasis on civics education," said Harvard professor Robert Putnam, who has consulted with Bush aides. There is less agreement, however, on how to accomplish the goal. A federal mandate that schools teach civics is a nonstarter. Conservatives generally object to such mandates to states, and after last year's congressional reauthorization of the Elementary and Secondary Education Act, there is little appetite to revisit education policy. A simpler possibility is the dangling of federal incentives for states that adopt civics education. Bill Galston, a former Clinton administration policy adviser who has consulted with Bush aides, believes federal spending of $50 million to $100 million would have noticeable results. The federal government now spends $12.2 million annually for civic education through the California-based Center for Civic Education. Asked about expanded funding for civics education, a senior Bush aide said: "We're looking at those" as well as "taking a fresh look" at using existing education funding for civics training. Chester E. Finn Jr., an education specialist at the Manhattan Institute for Policy Research who is influential in the White House, said current spending on civics education is "peanuts" and the administration could use "the usual array of federal incentives" to offer more. A plan to train middle-school teachers in civics education would cost about $200 million, he said. But Finn sees a broader presidential effort using the bully pulpit to encourage civics knowledge through competitions, prizes, public television documentaries, curriculum advice to teachers and public service advertising. The administration has already begun such efforts. On April 26, the Corporation for National and Community Service started a "Presidential Freedom Scholars" program offering $1,000 scholarships – half of it from federal money – to 1,700 high school students who win an essay contest about their views on service after Sept. 11. The corporation is also pondering whether to expand its "Learn and Serve America" program, which encourages schools to give classroom credit for community service. The service-learning program provides about $43 million in grants for classes available in about a third of high schools. Also underway is an effort to develop a national civics curriculum, featuring stories about George Washington, writings of the nation's founders and other elements of national history and mythology. The voluntary curriculum may include using the Internet and other means to get material from Smithsonian museums, national parks and the like into schools. The goal, Bridgeland said, is to "bring those moments in history to life to galvanize millions of Americans to continue to share in that legacy. You can't mobilize people unless they fully understand the freedoms for which they're fighting."
What is the law?
Cellular & cordless callsThe federal wiretap law was amended in 1986 and 1994 to expand the definition of electronic communications to include cellular and cordless phone conversations. Under the statute, cellular and cordless phone conversations can be recorded with the consent of one party. The federal law was changed to accommodate the differences between the cordless telephone system and the traditional telephone system, which transmits communications by wire or cable. In addition to the federal law, the Federal Communications Commission implemented a rule that prohibits eavesdropping on private cordless telephone conversations. The rule states that a person who is not a party to the conversation shall not use a device to overhear or record the private conversations of others unless such use is authorized by all of the parties engaged in the conversation. Many of the state laws also specifically apply to cellular and cordless calls, and others are broad enough -- by covering all "electronic" communications -- to cover these methods of communication. Okla. Stat. tit. 13, § 176.4 (1999): Anyone who is a party to a wire, oral or electronic communication or who has obtained consent from a party can lawfully record or disclose the contents of that communication, so long as he does not do so in furtherance of a criminal act. Unlawful recording or disclosure is a felony punishable by a fine of not less than $5,000 and jail time not to exceed five years. Okla. Stat. tit. 13, § 176.3 (1999). Oklahoma Statutes: The Open Records Act defines a record as "all documents, including . . . data files created or used with computer software, computer tape, disk, . . . or other material regardless of physical form or characteristic." "Record" does not mean computer software. Okla. Stat. tit. 51, § 24A.3(1) (West Supp. 1998). It allows"mechanical reproduction" of records in addition to "copying." § 24A.5(6). The law permits a public body to "keep confidential records relating to . . . computer programs or software but not data thereon" if disclosure would give competitors or bidders an unfair advantage. § 24A.10(B). Cases & Opinions: An agency that has computerized public records "has the authority to allow a commercial entity access to specific data in that file in an online manner, providing that the system for permitting such on-line access assures that such computerized records will be fully preserved and safeguarded from destruction, mutilation and alteration." Okla.Att'y Gen. Op. 85-36 (April 30, 1986). The state tax commission properly refused to disclose data relating to unclaimed property reports including financial reports, social security numbers, monetary amounts, property descriptions and other identifying information. Merrill v. Oklahoma Tax Commission, 831 P.2d 634 (Okla. 1992). Fees: The law limits fees to "the reasonable, direct costs of document copying, and/or mechanical reproduction." Copying fees are generally limited to 25 cents per page unless prescribed by state law. However, if a request for records is "solely for commercial purposes," or "clearly would cause excessive disruption of the public body's essential functions then the public body may charge a reasonable fee to recover the direct cost of document search." A search fee may not be charged "when the release of said documents is in the public interest, including, but not limited to the news media, scholars, authors" and other specified requesters. The statute prohibits charges "for the purpose of discouraging requests for information." Okla. Stat. tit. 51, § 24A.5(3) (1998)
Open Meeting Issue Cloudy
Private organizations either for-profit or nonprofit, which contract to provide goods or services to the public on behalf of a government agency and receive payment from public funds merely as reimbursement… are not supported' by public funds and therefore are not subject to the requirements of the Oklahoma Open Meeting Act, according to an opinion issued in August by Attorney General Drew Edmondson. The opinion states that organizations must hold open meetings if they do not submit itemized invoices or claims for goods provided but instead receive direct funding from tax or other revenues. If an organization receives money regardless of whether it provides goods or performs services, it is also subject to the Open Meeting Act. The opinion did not answer the question of whether a private organization can be considered a public body if it is supported in whole or in part by public funds or entrusted to spend public money or administer public property. State Representative Danny Hilliard, D-Sulphur said the opinion did not clarify the question he asked. "Basically, we don't know any more about it now than we knew before." "The attorney general's office is authorized only to answer questions of law; deciding the definition of which organizations could be a public body would be a question of fact," said Assistant Attorney General Debra Schwartz who worked on the opinion. "We are not authorized to answer a question of fact," she said. "There was no way to write an opinion that would answer the question in every case because organizations are often created differently. It would have to be reviewed on a case-by-case basis and would be for a jury or judge to decide in each case." Also, according to the attorney general: "Although it is not spelled out in the opinion, we are departing from the thinking that a private, non-profit might only be subject to the act for the portion of their meeting dealing with the public funds. We are now of the opinion that if the entity is subject to the act at all it is subject to it completely (adapted from an article by Carmel P. Snyder)
News in Brief…
Secrecy and Openness in the European UnionOn October 1, 2002, freedominfo.org announced the Web publication of its newest case study in the worldwide struggle for openness and freedom of information -- in this case, the decade-long effort to open the structures of the European Union (EU). Authored by Tony Bunyan of the London-based GO, Statewatch, the study starts with the December 1993 code of access to EU documents and covers every major development up through the June 2002 requirement of public registers - with which the European Commission is still not in compliance today. While much more EU information is now available, especially from the EU Council, thousands of documents do not appear on the required registers. In addition, NATO is pressuring the EU to comply with NATO secrecy procedures left over from the Cold War; and the areas of law enforcement and immigration are particularly susceptible to increased secrecy in an official climate dominated by counter-terrorism. The virtual network freedominfo.org, funded by the Open Society Institute and hosted by staff of the George Washington University's National Security Archive, is a one-stop portal that describes best practices, consolidates lessons learned, explains campaign strategies and tactics, and links the efforts of freedom of information advocates around the world.
Appeals Court Orders Deportation Hearings Open
In the first appellate decision of a challenge to the Justice Department's closure of "special interest" deportation hearings, the Sixth Circuit has ruled that such hearings are presumptively open and can only be closed on a case-by-case basis. (Detroit Free Press v. Ashcroft, U.S. Court of Appeals for the Sixth Circuit, Aug. 26)
CIA Must Search Operational Files
Interpreting an exception to 1984's CIA Information Act, which exempts the agency's operational files from any FOIA search obligation, Judge Thomas Hogan has ruled that because the agency's MKULTRA drug program has been the subject of numerous official investigations the agency is required to search its operational files and disclose any non-exempt records. (John Kelly v. CIA, U.S. District Court for D.C., Aug. 8)
FERPA Reviewed by Courts
A number of courts -- both federal and state -- have reviewed the Family Educational Rights and Privacy Act (FERPA) in recent weeks. The U.S. Supreme Court has ruled that individuals do not have a cause of action to enforce the statute. The court upheld a district court's grant of an injunction against Miami and Ohio State Universities sought by the U.S. Dept of Education. In doing so, the court indicated that the Education Dept can sue to force a school to abide by the law, even though the language of the statute speaks in terms of cutting off financial aid.
WASHINGTON, D.C. FREEDOM OF INFORMATION Education Web site is up for overhaul to fit Bush philosophy. The U.S. Department of Education's Web site will be revamped to bring the content in line with the Bush administration's philosophy, according to a Sept. 18 report by Education Week.
Ad council's Campaign for Freedom
Developed following the tragedies of September 11th, the Ad Council's Campaign for Freedom is an unprecedented volunteer effort from the advertising industry. The initiative is designed to assist Americans during the war on terrorism through the development of timely and relevant PSAs. This first round of PSAs has been created to celebrate our nation's freedom and remind Americans about the importance of freedom and the need to protect it for future generations. According to research, Americans are looking for messages that will inform, involve and inspire them during the war on terrorism. This inspirational campaign is advertising's gift to America. All of the ads conclude with the powerful tagline: "Freedom. Appreciate it. Cherish it. Protect it." These spots will be shown during this year's 1st Amendment Congress
Cherokee FOI/Privacy law a year old & working fine
In July 2001 the Cherokee Nation's 15 person Council, its unicameral legislative body, unanimously (one absent) adopted a new "Freedom of Information and Rights of Privacy" act. Then new Chief Chad Smith signed it into law. It was intended to clear up wide spread complaints from the Nation's members, its legislative council and its courts that meetings and records were secret. A year has passed. It has not been amended. All is peaceful, according to media communicator Mike Miller who speaks for Chief Smith and the Nation. "We don't have any trouble getting any information from the Cherokee headquarters here in Tahlequah," said Brad Smith, publisher of the The Tahlequah Daily Press. "Of course, you can't get strictly personal information that falls under the privacy protection but we just have no trouble since the new chief took over." The act is eight single-space, legal size pages long. It requires every entity from the legislative Council to study groups to post an agenda 10 days before meeting, allows taping, prompt access to minutes and other issues as good as or better than Oklahoma's Open Meeting Act. Bring your own copy machine or computer and copies of records are free. If they make them copies are likely free for Nation members and the media but never more than 10 cents per page. Oklahoma law 15 years ago set 25 cents as the max but some county clerks and municipalities finagle to charge more, even a dollar a page. Kinko copy shops charge 8 cents per page. There are 39 Indian tribes with headquarters in Oklahoma. - BB