Texas Bill Would Allow Online Meetings…

Members of the Legislature and other governmental bodies could communicate in an online forum and not break the law under proposed legislation filed Thursday that would expand the Texas Open Meetings Act.

“Government should function efficiently and effectively, and the public should know as much as possible about what government is doing,” state Sen. Kirk Watson, D-Austin, the author of Senate Bill 1297, said Thursday. “This bill uses technology to ensure that officials at every level of government can communicate when they need to.”

Currently, the Texas Open Meetings Act prohibits a quorum of local and state government boards from discussing government business unless it is in an open meeting that has been announced to the public. However, the act, which was first adopted in 1967 and revised in 1973, offers no guidance as to what is permissible in an online setting.

SB 1297 would allow for public officials to create online message boards that they could use to communicate government business. The boards would be available for the public to see.

The law would require all communication between officials to be in writing, which must be made available in real time. All postings would be required to be viewable for 30 days after posting, must be electronically archived for at least two years and are subject to Texas Public Information Act requests. No votes or official actions by the members of a board are allowed in these virtual arenas.

More here.

An Excellent Look at the Closed World of Prisons…

Nowhere do we spend more money with less accountability than the prison system…

Supermax prisons and solitary confinement units are our domestic black sites—hidden places where human beings endure unspeakable punishments, without benefit of due process in any court of law. On the say-so of corrections officials, American prisoners can be placed in conditions of extreme isolation and sensory deprivation for months, years, or even decades.

At least 80,000 men, women, and children live in such conditions on any given day in the United States. And they are not merely separated from others for safety reasons. They are effectively buried alive. Most live in concrete cells the size of an average parking space, often windowless, cut off from all communication by solid steel doors. If they are lucky, they will be allowed out for an hour a day to shower or to exercise alone in cages resembling dog runs.

Most have never committed a violent act in prison. They are locked down because they’ve been classified as “high risk,” or because of nonviolent misbehavior—anything from mouthing off or testing positive for marijuana to exhibiting the symptoms of untreated mental illness.

Don’t miss this excellent, troubling report.

In Maine, a full-out assault on open government…

As the Portland Press Herald put it, “The public’s access to government information is under attack in Maine.” To wit:

The Legislature will take up several bills this session that would further puncture the state’s open-government law, snatching from public view information that is now considered part of the public’s right to know.

If approved, the measures will reinforce Maine’s national reputation as a place where transparency and government accountability rank behind privacy and other powerful interests.

The proposals include bills that would block access to information about individuals who hold concealed-weapons permits, allow police to withhold transcripts of 911 calls, and shield the email addresses of citizens who sign up to receive notifications from government groups.

If adopted, the proposals would lengthen the list of 483 exemptions that previous legislatures have already carved out of to the right-to-know law. Many more exemptions are woven into the governing statutes of various state agencies.

These exemptions, combined with a weak and costly appeals process for the denial of public records, and what some describe as a cultural reluctance to expose personal information collected by public officials, have positioned Maine as a state that does not value transparency.

“I don’t think of Maine when people ask me which states are shining examples of sunshine,” said Ken Bunting, executive director of the National Freedom of Information Coalition.

Sigmund Schutz, a Preti Flaherty media attorney whose clients include the Portland Press Herald and Maine Sunday Telegram, describes Maine’s open-government law as “all over the place.”

“It’s good in some places, but really bad in others,” Schutz said.

Maine’s Freedom of Access Act, adopted by the Legislature in 1959, stipulates that all records are public so long as they are used in the transaction of governmental business. But through liberal use of rulemaking, state lawmakers have reduced “all” records to “some.”

Open to public inspection are records such as tax assessments; visitor logs for state offices, including jails; the schedules of elected officials, including the governor, attorney general and the secretary of state; arrest logs; and transcripts of emergency dispatch calls.

But the Legislature has made myriad changes to the law to exempt documents from public view. Many exemptions have been made to protect personal identifying information during sensitive interactions with government, including information about who receives government assistance or data that could identify crime victims or impede police investigations.

Other exemptions are more arcane. One, adopted in 2001, shields the list of growers using genetically engineered plants. Another proved self-serving for state lawmakers, who voted in 1991 to shield their “working papers,” or communications related to the drafting of legislation. Gov. Paul LePage, citing legislators’ exemption, tried to obtain the same privilege in 2011, but the proposal was rejected.

Lawmakers periodically offer bills to strengthen the law, but those proposals face long odds, often traceable to the push-pull struggle between privacy and transparency.

Bunting, of the freedom of information coalition, said that unlike heavily populated states, Mainers’ close proximity to their elected officials and their government may make them more inclined to let government and its records remain private, or in some instances become that way.

“In a state like Maine there is a shorter distance … between the people and those city councils, school boards and lawmakers who see any liberalization of transparency laws as a threat,” Bunting said.

Much more here in this excellent report…..

This is a signal victory for openness in Tennessee, and a major shot across the bow of private prison operators. Seems CCA’s argument that it was not in the “official business” of running prisons didn’t hold water. Maybe it’s because they, well, run prisons?

The Tennessee Court of Appeals has ruled that Corrections Corporation of America’s legal settlements are subject to the state Open Records law.

In a ruling filed on Feb. 28, the court said it disagreed with CCAs assertion that the company shouldn’t have to turn over settlement-related records because they aren’t part of the “official business” of running a prison.

The request for settlement agreements from CCA was part of a public records request made in 2007 by Alex Friedmann, the editor of Prison Legal News.

The company turned over some documents after a 2009 Appeals Court ruling that CCA is subject to the state’s Open Records law, but the legal settlements weren’t included.

CCA argued that the settlements didn’t fall under the statute’s definition of a public record and that because they were created for litigation — not the running of the prison — they weren’t subject to the law.

The court rejected both arguments.

“Settlement agreements have consistently been held to be public records by our courts,” the opinion stated.

More here.

UCF Student Media Outlet Sues Its University….

Um, wow….

Student media outlet Knight News sued UCF and its president, John C. Hitt, on Feb. 21, claiming the university violated public records acts and sunshine laws.

According to a PDF of the lawsuit on Knight News’ website, the student media group listed 10 alleged violations including public records request denials involving UCF and SGA, as well as violations of the sunshine laws.

In response to the closure of the Feb. 15 Sigma Chi fraternity suspension hearing, Knight News is looking for ratification of the current denial status of public and media access to observe such hearings.

According to an email written by Knight News’ attorney Justin Hemlepp, this lawsuit is about protecting the public’s rights under Florida laws.

“The public doesn’t know how UCF has been handling these hearings, and that is exactly the point of our lawsuit: to open these hearings to the sunshine so the public can see how the university is making these decisions,” Hemleppsaid.

More here.

Open Government: A State’s Rights Issue, or More?

The Atlantic takes an interesting look at the state FOI case in front of the Supremes:

A lot of American constitutional law involves the tension between “this land is your land” on the one hand and “you’re not from around here, are you?” on the other.

McBurney v. Youngwhich will be argued Wednesday in front of the Supreme Court, is a great example. The issue in McBurney is whether a state can set up an “open records” system that benefits only its own residents, while denying access to outsiders. As an issue, it’s less exciting than gay marriage, affirmative action, or the Voting Rights Act. But it has practical implications for anyone who owns or wants to own property in another state, who does business in more than one state, or who has moved recently from one state to another.

We take access to government records almost for granted. In fact, the challengers in McBurney argue that, because of its importance for business and daily life, such access has become a basic building block both of national citizenship and of interstate commerce. Virginia, however, argues that records access is simply a matter of local concern, like voting.

During the 1960s and 1970s, the country underwent a quiet revolution in open government. In 1966, Congress passed the Freedom of Information Act (FOIA), and all 50 states — those, that is, that didn’t already have “sunshine laws” — followed suit. Those laws are now a key part of politics, news-gathering, and business. They allow a requester to demand governmental records for any reason, and they require government to furnish copies without an excessive charge. FOIA requests are used to expose governmental wrongdoing, provide cheap discovery in litigation, fuel large-scale journalistic investigations, create multi-state research surveys, and obtain detailed data that can be mined, exploited, and sold.

Most states have opened their records to anyone who asks. However, Virginia and Tennessee extend the guarantee only to those within their borders. (Some other states have ambiguous laws providing access to every “citizen,” which could mean state citizen or federal. Delaware limited access to in-staters until the Third Circuit struck that requirement down in 2006.) The challengers argue that the “citizen only” laws conflict with two provisions of the Constitution. One is the “privileges and immunities” clause of Article IV; the other is the so-called “dormant commerce clause,” which courts have deduced from Congress’s power to regulate commerce “among the several states.”

Much more here.

Good Intentions Breed Bad Potential Outcomes in Colorado…

Freshman Rep. Brittany Pettersen’s House Bill 1041 (pdf) seeks to heighten public accountability by updating the Colorado Open Records Act. Her measure would prevent officials from requiring that people who ask for public documents review them in person before receiving copies. It was a legislative update activists applauded, until they read the bill, which they now decry as being ambiguously worded and ripe for abuse.

“It’s been a frustrating experience, even if it’s all part of the process,” said Pettersen. “It’s unfortunate, I think, on one level, because lawmakers in the future may be less willing to take up issues related to the Open Records Act and, on another, because the activists are right to see larger issues that need addressing.”

Marilyn Marks, founder of Aspen-based Citizen Center and a lightning-rod figure for controversy tied to records access, originally supported Petterson’s effort but is now leading the charge against it. In a letter to the editor published in the The Colorado Statesman last week, Marks called Pettersen “petulant” for not meeting with activists, and called House Bill 1041 an “anti-transparency bill.” She believes lobbyists have worked to include language in the bill that would make it possible for obstructionist records custodians to charge high fees to records seekers and shut down meaningful document review.

Veterans of battles over the Open Records Act are unsurprised by the suspicions rising up around the bill in the activist community.

Steve Zansberg, a top media attorney in the state and one of the architects of the bill, said it makes sense that government accountability champions like Marks guard their right to access vigilantly and are wary of any proposed changes to records laws — even changes they may have initially supported.

“I understand folks who have had bad experiences with records custodians and so come to the bill with suspicions. They see vague language and they view that vagueness as a ‘trap for the unwary,’” he said. “But all language is susceptible to abuse. No legislation will work 100 percent of the time to protect against bad faith.”

Katie Fleming, Colorado associate director of government accountability group Common Cause, was also not surprised by the heat the bill has drawn.

“The Open Records Act is one of the most effective ways the public has to hold officials accountable and to make sure laws are working. It’s just going to generate lots of interest every time you talk about it,” she said.

Read more here.

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