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.

ProPublica Takes a Look at Obama Transparency, or Lack Thereof

A nice analysis piece from my pal Jennifer LaFleur:

After eight years of tightened access to government records under the Bush administration, open-government advocates were hopeful when Barack Obama promised greater transparency.

Four years later, did the president keep his promise?

“It’s a mixed bag,” said Patrice McDermott, executive director of OpenTheGovernment.org, a consortium of right-to-know groups. “I think they’ve made progress, but a whole lot more remains to be done.”

The rest of the piece is here.

Navy Times, with a major assist from the Yale FOI Law Clinic, for the win!

Yale’s newish FOI clinic already is demonstrating the potential for such collaborations to make a real difference in FOI litigation:

Navy Times has won an important ruling in its legal challenge to force U.S. Strategic Command to release investigative reports into an allegedly abusive Navy official.

In 2011, William H. McMichael, then a Navy Times staff writer, asked STRATCOM to release an Inspector General report detailing the conduct of Capt. Bill Power, the command’s then-director of logistics, who had been accused of abusive behavior by subordinates.

But each of three Freedom of Information Act requests was denied by STRATCOM officials, who refused to confirm or deny the existence of the records under an exemption to the federal Freedom of Information Act normally applied to state secrets.

Yale Law School’s Media Freedom and Information Access Clinic took up the fight on Navy Times’ behalf, challenging the Navy’s determination in the U.S. district court for the District of Columbia.

The Yale group argued that the Pentagon’s refusal to acknowledge whether the report existed was a misuse of the cited exemption. They argued the IG report into a senior official’s conduct should be a matter of public record, noting that STRATCOM employees knew of the probe and that Power had even told some of his 49 employees about the report’s conclusions.

The judge sided with Navy Times.

 

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Federal Judge Says USDA Can release Missouri Dog Breeding Info

This FOIA victory is bound to unveil some rich reporting data:

The U.S. Department of Agriculture can release the revenue and sales data of Missouri dog breeders and dealers to the Humane Society, a federal judge in Washington, D.C., ruled.

U.S. District Judge James Boasberg held that the agency’s decision to release the data was not arbitrary or capricious.

A group of breeders and dealers had asked the judge to block the agency from releasing information that it claimed was exempt under the Freedom of Information Act (FOIA).

The Humane Society of the United States had filed multiple FOIA requests in 2009, seeking reports that breeders and dealers file annually with the USDA. Those reports list their gross revenue and/or commissions from the past year’s dog sales, the number of dogs bought and sold that year and, for dealers, the difference between the sale price and purchase price of those dogs.

Missouri breeders and dealers claimed that the Humane Society sought the information “to destroy” their businesses.

They argued that data about their annual sales revenue and volume were protected by two FOIA exemptions: one for privileged or confidential “trade secrets and commercial or financial information” and another for files for which disclosure would “constitute a clearly unwarranted invasion of personal privacy.”

The USDA initially redacted the revenue and sales data before releasing the reports, but later backtracked, concluding that the forms were not protected by either exemption. It explained that much of the information included in the annual reports is publicly available, and that disclosure was unlikely to cause “substantial competitive harm.”

Full story here.

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Bloomberg Puts Obama Administration to the FOIA Test

This will leave a mark…

On his first full day in office, President Barack Obama ordered federal officials to “usher in a new era of open government” and “act promptly” to make information public.

As Obama nears the end of his term, his administration hasn’t met those goals, failing to follow the requirements of the Freedom of Information Act, according to an analysis of open-government requests filed by Bloomberg News.

Nineteen of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information: The cost of travel by top officials. In all, just eight of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act.

“When it comes to implementation of Obama’s wonderful transparency policy goals, especially FOIA policy in particular, there has been far more ‘talk the talk’ rather than ‘walk the walk,’” said Daniel Metcalfe, director of the Department of Justice’s office monitoring the government’s compliance with FOIA requests from 1981 to 2007.

Full article here

Official photographic portrait of US President...

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

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More FOIA requests, more processing…and a longer backlog

The Justice Department’s FOIA report for 2011 paints a maddening picture: as the agency works to process more requests than ever before, the line just keeps on growing…

Federal agencies processed more than 631,000 requests for government records under the Freedom of Information Act in fiscal 2011, 5 percent more than the year before. But the number of backlogged requests government-wide nonetheless shot up from less than 70,000 to more than 83,000.

The growing backlog is due in part to a significant increase in the number of FOIA requests sent to agencies in 2011. Submissions went from 597,000 in 2010 to 644,000 in 2011, an 8 percent increase. While the government as a whole dedicated 9 percent more full-time staff to FOIA processing and spent almost $20 million more on FOIA-related activities than the year before, backlogged requests nonetheless grew by 20 percent.

The figures come from the Justice Department’s 2011 summary of annual FOIA reports, a compilation of data contained in each agency’s yearly performance report under the 1966 open government law.

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The TSA Complaint Files: A Nightmarish Trek Into the Security State

Good ‘ol Government Attic yanked down hundred of TSA complaint letters through FOIA, and the results are eye-opening:

Read together, hundreds of letters complaining about Transportation Safety Administration security excesses acquire a horrible and sickening power.

Not in the graphic descriptions of genitals groped, terminal ailments revealed or utter powerlessness before government endured. Rather, it’s how often in the face of violation and outrage the victims somehow manage dignity, courtesy and self-effacement.

Governmentattic.org, a non-profit website whose slogan is ‘videre licet,’ roughly translated from Latin as “permitting to see” posted 205 pages of these letters from 2010 obtained through the federal Freedom of Information Act.

Airline passengers from all over the country addressed complaints to President Obama, Janet Napolitano, secretary of the U.S. Department of Homeland Security, senators, congressmen, their local newspapers and Anderson Cooper at CNN…

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The Wisconsin FOI Landslide…

So Gov. Walker got FOIA’d a bunch

MADISON, WI - MARCH 05:  A protestor holds a s...

Image by Getty Images via @daylife

. Really? Who would have thunk it?

The firestorm of debate ignited by Gov. Scott Walker’s changes to collective bargaining rules last year also triggered an explosion of requests for public information from his office.

The office received 214 written requests during 2011, some three times more than the previous governor saw just a few years earlier, Gannett Wisconsin Media found while checking public records activity as part of a Sunshine Week open-government initiative.

The analysis, involving more than 700 pages of documents, also showed that about 1 in 5 requesters got records within a month. Others waited as long as 120 days or more.

The volume of requests last year “probably has a lot to do with a lot of the budget reforms,” said Cullen Werwie, a spokesman for Walker.

 

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Three Federal FOIA Wins in One Week?

A huge week for federal FOIA, and the federal judiciary getting it right….

The U.S. Justice Department has lost three significant court rulings over records sought by the public under the Freedom of Information Act, including a rare order to release a classified document.

English: Internal CIA memo, released under the...

Image via Wikipedia

The rulings have been issued recently by judges in federal district court in Washington. Two of the judges have ruled that protecting the privacy of congressmen is not enough reason to withhold records about corruption investigations of the lawmakers.

The third ruling, from U.S. District Judge Richard Roberts, said the U.S. Trade Representative must turn over a position paper prepared during negotiations for a Free Trade Agreement of the Americas, conducted in the 1990s and 2000s, which never resulted in a deal. The Justice Department had argued that disclosure of the document would damage foreign relations since it agreed with other nations that documents produced during the negotiations would not be released to the public.

On Wednesday, Roberts sided with the Center for International Environmental Law in finding there were no plausible or logical explanations to justify the secrecy. He cited the member nations’ agreement that all documents produced during negotiations would be publicly available at the end of next year unless a country objects to the release of one of its own documents. He said that was evidence that the confidentiality was meant to give the participating nations a way to release their own materials, rather than keep other countries from releasing theirs.

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New York Times Takes A Look at the FOIA Slow Road…

In case you missed it, The New York Times had a really interesting piece on FOIA the other day. The money graf:

On Jan. 4, The New York Times received a final response from the Defense Department to a FOIA request made on June 1, 1997. The department sent it by Federal Express, Priority Overnight.

Sheesh. Well, at least they Fedexed the response!

Image representing New York Times as depicted ...

Image via CrunchBase

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