Mark your calendars….
FIRST AMENDMENT CONGRESS NOVEMBER 11-12— 2004
OKLAHOMA CITY UNIVERSITY
MEINDERS BUSINESS CENTER
Court allows FOI to file Amicus Brief
On March 5th, the Oklahoma Court of Civil Appeals over the objection of the Plaintiff/Appellee granted a motion by FOI Oklahoma to file a brief as amicus in support of an appeal by NewsOK from a $3.7 million libel judgment imposed by a Creek County jury September 18, 2003, and filed of record on November 12. The “libel” that is the basis for this judgment arose from NewsOK’s publication of a registry of sex crime offenders created by the Department of Corrections (DOC). The address shown for one of the sex offender was either in error or out-dated. The person identified in the list no longer resides there. The present resident (though not named in the list) brought suit. NewsOK, an Oklahoma limited liability company whose members are the Oklahoma Publishing Company and Griffin Television, L.L.C., operates an Internet website. It received the DOC registry electronically and published the registry on the website without editing or other alteration. With the filing of notice of completion of record on May 13, the briefing schedule has been determined. The brief of the NewsOK (the Appellant) must be filed no later than July 12. Thus, the FOI Oklahoma brief is also due on July 12. Only one amicus brief has been authorized and its 25-page limitation must accommodate all of the arguments by the three entities granted leave to appear as amicus: FOI Oklahoma, Inc.; the Oklahoma Press Association, and the Reporters Committee for Freedom of the Press.An unwatched government
By Terri WatkinsThe people of McAlester had braced themselves for the onslaught of national and regional media when the Terry Nichols trial started. New parking designation. We even saw new restaurants open. The onslaught never happened and a lot of people were asking why. While probably not an acceptable reason for reporters, the answer is money and a lack of interest on the part of the general public. Then again those two answers may actually be one and the same. If the public is not interested in a story, the story is getting covered less and less often. In the case of the Nichols trial, the expense of going to McAlester was far less than covering the trial in Denver but things had changed. The interest among the public wasn't as great. It became more difficult to justify the expense of hotels and overtime and in the case of television the satellite time. We have all seen it coming, but this is probably the first time it has been so blatant. The District Attorney explaining to the general public why eight to ten million is a justifiable expense was not easy; and explaining to the victims that the expense of covering it was no longer justifiable was not easy. Day in and Day out coverage of courthouse actions is going away. The same is true of City Halls and, in the case of broadcast, the Legislature. I am not comfortable with an unwatched government but if the public hits the remote when those stories come on, I don't see it changing. The problem is I don't know what to do about it. Anybody got any ideas?
OKLAHOMA LEGISLATURE ADJOURNS WITH FLURRY OF ACTIVITY
By Mark Thomas Oklahoma Press AssociationIn the final days of the session, several important bills were heard and voted upon in the House and Senate. What follows is a summary of legislative actions taken during the past session that affect freedom of information issues. Of course, a full analysis has not been completed but will be available in the next few months.
VIDEO-CONFERENCING Rep. Gus Blackwell (R) Goodwell proposed changing the open meeting law to allow ALL public bodies to meet by videoconference which would expand a law passed 2 years ago. Opposition to the bill centered around the fact that this major change in the way all public bodies would be allowed to conduct the people’s business should not be foisted upon legislators in the final days. Additionally, safeguards that did not become law two years ago when the legislature authorized local career technology center boards to meet by videoconference are still needed. The bill passed the House in the final week by a vote of 98-2. Three days later, the bill was killed by the Senate with a vote of 19-23.
CORRECTIONS INVESTIGATING CONFIDENTIALITY – The House of Representatives defeated a bill by Rep. Ron Kirby (D)-Lawton, that would have allowed the Dept. of Corrections to keep internal investigations confidential. There are many opportunities for state agencies to keep investigations confidential, but Corrections wanted a complete exemption for all investigations to be confidential. Newspaper stories and lobbying by the media helped representatives see the dangers of this legislation.
RETIREMENT BENEFITS FOR STATE EMPLOYEES Last year a newspaper story showed the public would not be able to know the amount of retirement benefits available to term-limited legislators. As a promise to fix that situation, Speaker Larry Adair (D)-Stilwell and Pres. Pro Tem Cal Hobson (D)-Lexington, proposed SB 1434. This act was signed by the Governor over the objections of state employees and other groups supported by the state retirement system. The bill does not open all information, but opens up basic information so the public can get a glimpse into how their servants are being compensated in their retirement.
COMMISSIONER OF HEALTH EXCLUSION – In a bill that is probably unnecessary, SB 1406 by Sen. Robinson (D)-Muskogee, gave the Commissioner of Health the authority to keep records confidential if they came into his possession, if those records are confidential elsewhere in state or federal law. Those exceptions are already found in the open meetings and records act, however, the commissioner wanted the language in his authorizing statute. Earlier in the session, quite a few bills worked their way through the committee process and were signed into law by Governor Henry. They include:
HOMELAND SECURITY – The Homeland Security Act (HB 2280) originally created a complete exemption from open meetings and records for the Homeland Security Department that operates within the Dept. of Public Safety. That bill was amended to require them to comply with the open meetings and records acts. The final version of the bill does not mention whether the newly created Homeland Security Department is covered or not, but it does not grant an exclusion to these acts. They would have to find other methods of closing records or meetings. It is expected that meetings and records surrounding homeland security issues will be a source of conflict for many years.
IDENTITY THEFT – In the final analysis, it appears there were no records closures this year due to the elusive identity theft issue. SB 1168 by Sen. Lawler (D)-Marlow, increased the penalties for committing identity theft, and also created a mechanism for restitution to the victims of identity theft. Several bills proposed earlier in the session that would have closed records to prevent identity theft were dropped in favor of increasing the penalties found in SB 1168.
“PAY AT CITY HALL” UTILITY BILL – Sen. Helton (D)-Lawton proposed SB 1108 that allows municipalities that contract with utility companies to collect payment for utility services to keep the account information of those citizens confidential. An exclusion already exists for municipally owned power companies to keep bank records and credit card information confidential. While the municipality must reveal its contract and amount paid the city by the utility, it does not have to reveal the individual payment data on customers who pay their utility bills to a public utility through the contract with the city.
VET MEDICAL EXAMINERS INVESTIGATIONS CONFIDENTIAL – HB 2608 by Ron Peterson (R)-Tulsa allows the State Board of Vet Medical Examiners to keep their investigatory records confidential.
ELECTION PHOTOS IN FIVE MINUTES – Photographers now legally have five minutes to enter the voting area and take pictures. Five minutes to take a great photo, says the editor. However, the bill prohibits the taking of photographs of individual ballots or of people marking a ballot. It is a common practice for photographers to enter the election enclosure on election day to take pictures. Technically that activity has been against the law. The five minute language was added in the senate, reducing it from the original thirty minute time period.
ELECTION BOARD CHANGES HB 2663 was highly publicized because its major function was to set an election process to fill unexpired terms of senators and representatives who cannot complete their full term due to term limits. However, the bill also made one other change that received little or no attention... Candidates for office can now file in the county in which they live rather than having to travel to the county election board where the administrative offices of the body for which they are filing is located. For example, if you live in Seminole County in a career-tech district headquartered in Shawnee, you do not have to travel to Pottawatomie County to file for election to the career-tech board. You can file in the county in which you live. The intention is to make it easier to file for office. However, now you will have to call multiple county election boards to see who has filed for office. An inconvenience for those who report on election filings, but not something we can’t overcome.
Education for Freedom 2004
Educators and “to be educators” from throughout the state are receiving the basic fundamentals for teaching “Civics” through the Education for Freedom workshops sponsored by FOI Oklahoma and taught by Rita Geiger. She presented a session at the Oklahoma Council for Social Studies Annual Winter Conference on February 21. Teachers responded with enthusiasm to the informative and useful handouts. “Great materials.” A 2nd workshop for secondary social studies methods students was presented at OU on February 24. There were 2 workshops in April -- On April 13 to two elementary social studies methods classes at OSU and on April 23 an evening seminar for student teachers at East Central University. And finally, a workshop was presented at Cameron University in May. Plans for the fall include returning to OU, OSU and Cameron. There will also be a workshop at Oklahoma Baptist University in the fall and during Encyclo-Media XXIV. The latter is a conference held at the Cox Convention Center sponsored by the Library Media/ITV Section at the State Department of Education. We continue to look for other venues for these presentations. More information can be received by contacting Rita Geiger at (405) 755-3225 or by email at rgeiger@cox.netBibliography of Government Documents
An Annotated Bibliography of Government Documents Related to the Threat of Terrorism and the attacks of September 11, 2001 is available. The Regional Depository Librarian with the Oklahoma Department of Libraries U.S. Government Information Division announces the availability of a virtual, Internet-only document. Printed paper copies are not available as it would be over 700 pages long if you were to print it out. Aside from its usefulness, it is also a "good-read", says Steve Belyeu. http://www.odl.state.ok.us/usinfo/terrorism/911.Supreme Court Recognizes Survivor Privacy Rights
Ruling in a case concerning disclosure of photographs taken at the Marcy Park site of Vince Foster's suicide, the Supreme Court has recognized a separate privacy right of family members in preventing disclosure of crime scene photos. Writing for a unanimous Court, Justice Anthony Kennedy noted that "we have observed that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the Constitution. . .It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law." (National Archives and Records Administration v. Favish, No. 02-954, U.S. Supreme Court, Mar. 30)Who is fighting for the public’s right to know?
In Spring of 2004, the Associated Press sent a reporter to Hattiesburg, Mississippi, to cover a speech by U.S. Supreme Court Justice Antonin Scalia. As Scalia spoke, a United States Marshal stepped in front of Denise and demanded that she turn over the digital recording she was making to back up her notes. She tried to say no, but the marshal ignored her and erased Justice Scalia’s words from memory on the spot.In February, AP photographer Michael Derer was covering a train derailment near Woodbridge, New Jersey. When he stepped onto railroad property to try to get a picture of the wreckage, the local police who were controlling access to the scene packed him into a squad car and drove him away.
And in March, AP freelance photographer Michael Mariant was taking pictures of people entering the Santa Barbara County Courthouse on the morning when a grand jury would consider molestation charges against Michael Jackson.
One day earlier a judge had ordered the media not to identify or publish pictures of the grand jurors. Our photographer was across the street from the courthouse shooting images of peoples’ feet and backs as they lined up to go into the courthouse. A sheriff’s deputy demanded his camera, flipped through his images, and deleted the ones that the deputy decided would violate the judge’s order. Of course, AP and these individual journalists had legal rights, and lawyers were called in each case. But that doesn’t get us back the words and pictures we really wanted. They’re gone for good.
The point is: the government’s power is overwhelming. It’s agents are armed and authorized to use force if they have to. Your lawyer may eventually have the last word, but in the moment when the power of the state first confronts you, your choices are between doing what you’re told the easy way or doing it the hard way.
Power, of course, is what gets things done. It provides essential services, maintains order, and keeps us safe. But power will not restrain itself. Those entrusted with it have to be watched. That is not meant as a political statement or a character assessment. It’s just a basic law of nature. The powerful have to be watched, and we are the watchers. And you don’t need to have your notebook snatched by a policeman to know that keeping an eye on government activities has lately gotten a lot harder.
In fact, the government itself has actually told us so. After the 9/11 terrorist attacks, the attorney general of the United States informed federal departments he was reversing the spirit of the Freedom of Information Act.
The essence of the FOI Act is that government information is open and accessible to the public unless there is a very good reason to keep it secret. But under the attorney general’s directive, department heads were told they should treat government information as secret unless presented with a very good reason to make it accessible.
The agencies eagerly complied. Up went the barriers. Down came the official Internet sites and document databases. Gone were expedited FOI procedures for reporter requests to many agencies. By last summer (2003), a government study determined that nearly a third of the federal officials whose duty is to comply with FOI requests reported they had succeeded in reducing the flow of information to the public.
The states appear to have fallen in step with the new spirit of secrecy. In a survey taken last month of AP chiefs of bureau around the country, more than half told us that state and local governments are making it much harder for us to do our jobs. “The biggest problem areas remain at the lowest levels in government and law enforcement. The smaller the community, the more the top officials think they own the records.” Government actions taken in the name of heightened national security and the war on terrorism are responsible for some of this, but by no means all of it.
State and federal judges seem more inclined than ever to issue gag orders, seal documents or even close proceedings in cases of all kinds, not just terrorism cases. All too often, they do this without bothering to hear arguments or make findings that the restrictions are necessary to assure a fair trial or to serve any other important public interest.
And no discussion of restricted information access would be complete without mention of the Health Information Portability and Privacy Act, the notorious HIPAA.
While it was passed with the praiseworthy goal of protecting the privacy of sensitive personal medical information, the law has turned out to be an object lesson in unintended consequences and a nightmare for journalists. It is one of the most widely misunderstood laws on the books.
Hospital officials sometimes warn journalists that just reporting such facts could subject the journalists to criminal penalties under the law. Not true.
Yet some critics of the law say it contains loopholes that make it a poor guardian of privacy in ways that really matter. Clearly, we’re in a time when the challenges to the public’s right to know are large and growing.
You would expect in such a time that news organizations would be mounting more determined efforts to meet and overcome those challenges. But that doesn’t appear to be the case.
Objections among the media to the attorney general’s post-9/11 directive to clamp down on agency FOI disclosures were muted at best. In the aftermath of the terrorist attacks when federal grand juries began issuing secret indictments and agents rounded up alleged conspirators or material witnesses, most of us remained silent.
Nor did the collective news media rally immediately to the support of legal efforts to open up deportation proceedings against the hundreds of detainees of Middle Eastern descent who were taken into secret custody in the wake of the attacks.
That was an extraordinary time for the country. It’s entirely understandable – and reasonable – that the press and public were willing to step back for a time and give the government room to address an unknown and frightening threat.
The risk has always been, and remains, that this temporary relaxation of vigilance could gradually become business as usual. Fighting the government for information access has never been easy. It costs a lot of money. It’s hard to win. And when you do win, the victory often as not comes long after the underlying news story has lost its immediacy.
So, how much more tempting it is to back off on an FOI challenge when money is even tighter than usual . . . and you can tell yourself that there are good national security and public safety grounds for sitting this one out, and maybe the next one, and the next one. This could become a dangerous habit if we allow it to take hold, dangerous for us and for the society in which we play such a critical role.
Ours is a society of checks and balances. The designers of our system were under no illusion that freedom could ever survive and flourish just because it was a good idea. They wrote a constitution which recognizes that all power will expand to its limit because that’s what power does. But our constitution prevents tyranny by dividing up the power and using it to limit itself.
The story of public life in this country is always, one way or another, about power and the important values and interests that drive its use. National security is one such value. Public safety is another. Fair trials are another. Personal privacy is yet another. And freedom to find out and report what’s happening is certainly another.
These important interests, and many more, compete and collide every day. None has an absolute right to prevail over all the others. The system depends on vigorous advocacy by all the competitors to achieve a workable balance. Our freedom hangs in that balance. Vigorous advocacy for open government is what I believe we need much more of today.
News is our business. We are the watchers. Open government is the personal interest and constitutional right of every citizen. But we of the fourth estate have by far the greatest means and incentive to speak and fight for it.
The advocates of secrecy believe security, privacy and public safety are a lot more important than open government. It’s clear they’re fighting harder than ever to portray the First Amendment as a luxury the country can’t afford right now. They’re using every available tool at their command to do so. To preserve the balance of forces that guarantees liberty, I believe we have to do the same.
From a speech by Tom Curley — President and CEO The Associated Press The Hays Press-Enterprise Lecture Riverside, California — May 7, 2004
A new press effort to push for less secrecy in government
— “media advocacy center" to lobby for open government in Washington “The government is pushing hard for secrecy. We must push back equally hard for openness. I think it’s time to consider establishment of a focused lobbying effort in Washington.” An advocacy center for open government would identify and oppose legislation that puts unreasonable restrictions on public information. It would also propose and seek legislative support for measures that would strengthen First Amendment values. For example, with courts in some circuits showing signs of withdrawing their recognition of the reporter’s privilege and threats of newsroom subpoenas and searches increasing since enactment of the Patriot Act, it may be time to consider a push for a federal shield law. Within the next few months, AP will invite representatives of the organizations experienced in this kind of work to help develop a plan for a Washington office that would seek better statutory guarantees for more accessible government information. Legislative activities of various media groups are sporadic and uncoordinated, and the scope is limited by their tax-exempt status. We do not sit in some impartial referee’s box where open government is concerned. Like it or not, we’re in the game for keeps; we can either play badly or play well. I believe we have a duty to play well, and that it’s time to learn whether some new moves will help. And in the meantime we intend to do more of what we’re already doing. * State FOI audits, for example, have been very effective tools for testing official compliance with state FOI laws and raising public awareness of their rights. Starting now, AP bureaus in any state where such audits have not been conducted will be instructed to make some phone calls and start a project immediately. And AP will press in every state for regular audits at least once every five years.* Bureau chiefs will also be directed to provide a status report on access for still and video cameras to state and federal courtrooms in their territories. Where there is no active effort under way to expand access, or the effort has faltered, chiefs will be asked to develop a plan to move things forward.
* AP bureau chiefs will be directed to review their procedures for responding when access to information or proceedings is blocked.
* We will issue fresh instructions to AP editors at every level to be sure that any news story that benefits from an FOI request or suffers from lack of public information that was refused by a government source says so clearly.
There is a lot more we can do, especially if we work together. Our industry can be proud of the principled stand it has always taken for freedom of information. Every one of us has used the FOI laws for the public good, fought to get into public meetings, sued to overturn gag orders or unseal documents.
The advocacy of media groups, and the scores of FOI and Open Government councils all over the country have helped keep the First Amendment vibrant. Yet today, the forces of secrecy have drawn fresh strength from the war on terror and the heightened privacy concerns that new technologies have spawned. We, the forces of open government, must find fresh strength of our own, and I am confident we will. —Tom Curley
Access doors quietly closing
The American Library Association issued an alert last week about Inclusions in the "Safe, Accountable, Flexible and Efficient (SAFE) Act of 2004" (HR 3550)An access-to-information issue has arisen quite rapidly in the past week. HR 3550 (which authorizes funds for federal highways, highway safety programs and transit programs) is now in conference committee. It includes Section 3029, introduced by Senator James Inhofe, (in the Senate version, but not the House version.) and deals with the ability of the public to obtain access information related to transportation safety, facilities and infrastructure through FOIA.
This provision expands the definition of Sensitive Security Information ("SSI") that can be withheld from public access through FOIA. Currently, SSI is defined as information that would: · Be an unwarranted invasion of personal privacy · Reveal a trade secret or privileged or confidential commercial or financial information · Be detrimental to the safety of passengers in transportation
Section 3029 would add the following language: transportation facilities or infrastructure, or transportation employees.
This would significantly broaden the definition of SSI and, thus, the amount of information that can be withheld from the public. In fact, the definition would become so broad as to allow the Transportation Security Administration to declare virtually any record in its possession as "detrimental to the transportation infrastructure".
In addition, the bill states that "A State or local government may not enact, enforce, prescribe, issue or continue in effect any law, regulation, standard, or order to the extent it is inconsistent with this section or regulations prescribed under this section." That means that State and local governments are pre-empted from releasing and, to some extent, utilizing information regarding the transportation infrastructure or facilities.
Local communities, therefore, would have little ability to participate in their own protection because they would have no knowledge of any dangers on local roadways, airports, seaports or other transportation facilities.
Section 4439 of HR 3550 is also only in the Senate version. It creates a subset of SSI related only to hazardous material and states that the TSA can only reveal information regarding the vulnerability of hazardous materials in very limited situations. Again, this means that very important information will be withheld from the public.
An authorization bill is not the appropriate venue for such legislation. There have been no hearings held on these restrictions on public access to government information and a full discussion needs to occur.
Opposition to penalties related to "administrative subpoena" powers
WASHINGTON -- The USA PATRIOT Act gave the FBI increased authority to obtain databases of records without a court order, or any standard for protecting individual privacy. HR 3179 would require up to five years in prison for violating gag orders on national security letters Section 505 of the Act amended the "national security letter" (NSL) power to eliminate the need to assert individual suspicion, much less probable cause, before issuing such a letter."If the government is permitted to ask a court to enforce such subpoenas, NSL recipients should in turn be allowed to participate in the proceedings, and should be able to initiate their own court challenges," insisted Patrice McDermott, ALA Washington Office Deputy Director of the Office of Government Relations (OGR). "After all, recipients of grand jury subpoenas can move to squash such subpoenas if a request is overbroad, unduly burdensome, or seeks privileged information. Why shouldn't recipients of national security letters have the same rights, especially if they are the subject of judicial contempt for failure to comply?" she concluded.
Currently, compliance with the letter and a gag provision that prohibits a recipient from protesting such a letter are mandatory under the law, although no specific penalties are listed. HR 3179 amends the law to establish criminal penalties of up to five years in prison for violating the gag order provision.
"The recipient should also be able to contact legal representation in order to challenge the gag provision in court without the concern of being criminally prosecuted for violating the provision," McDermott concluded.
Public safety fears spark suspicion of open records requesters
June 11, 2004 -- Public safety concerns in Ohio and Texas have led to suspicion -- and in one case, the criminal investigation -- of people who make open records requests.In Texas, a university student's request for information about a system of tunnels under the school sparked an investigation, while the city of Parma, Ohio, adopted a short-lived policy of maintaining detailed information on people who request public records. Parma would have passed on the information to law enforcement officials to identify people who might use public records to commit crimes. A campus newspaper reported in May that FBI and U.S. Secret Service agents had questioned Mark Miller, a student at the University of Texas in Austin, in late January because of a state Public Information Act request he had filed with the university a month earlier. Miller had sought information about a series of underground utility tunnels that connect campus buildings. Miller told the university's student newspaper that he filed the request after a physical plant employee told him the information was secret "because of 9-11."
According to the paper, the agents questioned Miller on how he knew about the tunnels, how he knew about open government laws, whether he was a member of any activist organizations, if he had ever filed a lawsuit with the ACLU, what he was studying at the university, and why he had long hair.
On Feb. 25, Texas Attorney General Greg Abbott affirmed the university's denial of Miller's request under a "critical infrastructure" exemption to the act.
In Ohio a town implemented a policy requiring government officials to log detailed descriptions of everyone who requested access to public records under the state Open Records Law. Forms required requesters to list their name, address and telephone number. If they refused, city officials were instructed to record the requester's height, weight, hair color, gender, race and age.
Mayor Dean DePiero told the Plain Dealer the policy would help police identify people who might use public records to commit crimes.
The ill-conceived policy was short-lived, however. Officials maintain that the policy was legal, but that it will not be reinstated because of the controversy. "This is a dead issue," he said.
The Freedom of Information ACT
Did you know...History: Enacted in 1966, it was the first law that gave Americans the right to access the records of federal agencies. The legislation was the brainchild of California Congressman John Moss. Due to his zeal for making information public, Moss’s own FBI file, recently obtained under FOIA, grew to two inches thick. In 1974, after the Watergate scandal, the act was amended to force greater agency compliance. In 1991 the General Accounting Office reported over 1.9 million FOIA requests. In December 2003, USATODAY and the Associated Press reported that some FOIA requests have been pending since the 1980s.
Federal FOIA Web Sites:
Recent revisions to the Freedom of Information Act mandate that every federal agency maintain a FOIA Web page. The information available gives a glimpse into the breadth of FOIA. On the Occupational Safety and Health Administration Web site, you can access a database of U.S. businesses with the worst health and safety records — they’ve all been sent official warnings. The National Security Agency’s Web page includes quick information for those making common FOIA requests. The homepage states clearly that the names of agency employees are confidential and “NO RECORDS EXIST” on U.F.O.s.
Most states also have freedom of information or “sunshine” laws. You can find out how to access state records by using the State Freedom of Information Map.
Changes: One of the crucial aspects of the Bush administration’s stand on the FOIA will be interpretation of the standard on withholding information if there is a sound legal basis for doing so. This is an alteration from the previous test, instituted in 1993, which said FOIA applications should be com-
plied with unless “disclosure would be harmful.”
In addition, under the Homeland Security Bill, Public Law 107-296, “critical infrastructure information” gathered by the new Homeland Security Department “shall be exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act);”
Recent FOIA Cases: