NFOIC Joins Washington State Lawsuit Over Guv’s Claims of Executive Privilege

Good for the good ‘ol NFOIC….

The National Freedom of Information Coalition (NFOIC) has joined media associations and good government groups in asking the Washington state Supreme Court to limit Gov. Chris Gregoire’s authority to withhold documents from public scrutiny.

The case grew out of a lawsuit filed in April 2011 by the Olympia, Wash.-based Freedom Foundation, an NFOIC member organization in Washington state, over the governor’s claims of “executive privilege” as a basis for shielding records from disclosure.

At issue in the case are Gov. Gregoire’s claims of executive privilege to conceal records regarding a controversial, $2 billion proposed tunnel along the Seattle downtown waterfront to replace the elevated Alaskan Way Viaduct, in addition to other documents.

Other organizations supporting the Freedom Foundation’s position in amicus briefs filed in the lawsuit are Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, the American Civil Liberties Union, the Institute for Justice and the Washington Coalition for Open Government (WCOG), also an NFOIC member organization.

The Freedom Foundation and its supporters say the governor should only be able to shield records from disclosure under the provisions of the state Public Records Act (PRA), which includes a “deliberative process” exemption. Gregoire’s attorneys say she is neither seeking to invalidate the PRA nor claim general immunity from it. They contend, however, that the constitutional separation-of-powers doctrine gives her additional authority to withhold documents in some instances.

Executive Privilege Challenge to be Heard by Washington Supreme Court

A growing menace, this state-level claiming of executive privilege:

Does the governor have the right to to shield documents from public view simply because she’s the governor? That’s a question the state Supreme Court late last month announced it would consider.

The case is brought by the Freedom Foundation, a libertarian think tank based in Olympia. The group is challenging Governor Chris Gregoire’s claim to an “executive privilege” that she says allows her to withhold documents from public disclosure. According to the foundation’s research, Gregoire claimed this privilege roughly 500 times between 2007 and 2010.

But there is no executive privilege spelled out in either the state Public Records Act, or the state constitution. So the foundation sued, citing a half-dozen examples of withheld documents.

Alan Copsey, the deputy solicitor general in the state Attorney General’s office, tells Seattle Weekly that the privilege “flows from the separation of powers.” He explains: “Each branch of government has a core function and in order to perform it property, it needs to have room to operate.” In the governor’s case, he continues, that means letting the state’s chief exec privately “consult with her advisers before making a decision.”

Freedom Foundation attorney Mike Reitz, however, says the documents withheld by Gregoire are not just communications between the governor and her advisers. He cites, for instance, a draft memorandum of agreement–along with Gregoire’s handwritten notes–between the state, King County, and city of Seattle over the viaduct replacement.

The question is, says Copsey, who were those handwritten notes for? He suggests that they may have been intended for the governor’s aides.

E-Mails Show “Cozy” Relationship Between Maryland Guv and Chicken Titan

Another FOI at Work moment:

A national consumer group is alleging emails they obtained through the Freedom of Information Act reveal an “unnervingly close and direct” relationship between Gov. Martin O’Malley and an attorney for Perdue Farms Inc.

The topics covered in 70 pages of emails between O’Malley and Herb Frerichs, general counsel for Perdue Business Services, run the gamut from chicken waste incineration to wind energy.

Food & Water Watch highlights several exchanges of particular concern, including one from August 2010, when O’Malley is grilled regarding comments made by his press secretary to a local newspaper. The article is about an Environment Maryland petition signed by 55 farmers asking O’Malley to hold large poultry producers responsible for pollution from chickenhouses seeping into the Chesapeake Bay. The comments make it appear as though O’Malley supports the petition, and specifically names Perdue as an example of a poultry giant.

Florida Governor Vows to Make E-Mails Public In Record Time Using New System

Hmmmm….I am intrigued by this system, but also kind of tickled by some of the details in the story of its launch:

Gov. Rick Scott launched a new open records program Thursday dubbed “Project Sunburst,” designed to give the public — and the media — access to the emails to and from the governor and 11 top staff within seven days of writing them.

To access the system, click here. Domain and password are “sunburst”.

…It also helps Scott the governor who has struggled to repair his open government-averse reputation. Weeks into office, the governor’s transition staff inadvertently destroyed emails and the governor, wary of the state’s Sunshine Law, refused to use email until eight months into office.

…Even under the current system, MacNamara himself avoids building a public record. A Herald/Times review of five months of the chief of staff’s emails finds that MacNamara prefers phone calls and hand-written notes to email when he communicates.

The governor’s top advisor routinely responds to even mundane concerns by urging others to “come see me” or “call me” to avoid a paper trail. MacNamara said it’s because he’s a bad typist and prefers to have face-to-face conversations.

My ABSOLUTE favorite nugget:

When asked about Sunburst in an email last week, MacNamara replied “it’s a secret.”

Maine rejects terrible FOI exemption…

The Maine House of Representatives decisively rejected an attempt to create a dangerous exemption to Maine’s Freedom of Access Act, which guarantees access to public records. From the ACLU:

LD 1805, “An Act to Implement Recommendations of the Right to Know Advisory Committee Concerning a Public Records Exception for Proposed Legislation, Reports and Working Papers of the Governor,” would have allowed the governor to hide from public scrutiny records relating to the decision-making process within his office.

“Transparency is fundamental to a healthy democracy. This bill would have created a significant exemption in Maine’s freedom of access laws and shielded the governor’s office from appropriate scrutiny,” said Shenna Bellows, the executive director of the American Civil Liberties Union of Maine. “We are grateful that the House has voted to reject this new and unnecessary exemption. The public has a legitimate right to access records, whether they are held in the governor’s office or any other part of state government.”

The House voted 98-47 against the bill.

“Today, lawmakers from all parties affirmed the importance of open government,” said Alysia Melnick, Public Policy Counsel for the ACLU of Maine. “With a governor’s broad authority to set the legislative agenda, introduce bills, create public policy and implement laws, it’s critical that information about executive operations and decision making be subject to public review.”

Gawker Sues for Records of Fox Chief’s Tutelage of New Jersey Guv

Gawker, the popular blog based in New York, is going to court to investigate the relationship between the Fox News chairman, Roger Ailes, and Gov. Chris Christie of New Jersey.

On Monday, the company and one of its reporters, John Cook, plan to file a civil suit against Mr. Christie’s office to try to obtain records of the communications between the two men. Mr. Cook, who regularly uses freedom of information and open public records acts to ferret out information for his Gawker articles, said the court action represents the first lawsuit filed by Gawker to obtain information.

The lawsuit has its origins in a New York magazine story in May which reported that Mr. Ailes had called Mr. Christie and “encouraged him to jump into the race” for president earlier this year. The report piqued the attention of people like Mr. Cook who believe that Mr. Ailes, a former Republican strategist who has run Fox News since its founding in 1996, still has a hand in politics. Mr. Christie has repeatedly ruled out running for president in the current election cycle.

In an interview with The Daily Beast weeks later, Mr. Ailes denied urging Mr. Christie to run, but acknowledged having dinner with him last summer.

By then, Mr. Cook had already sent a request to Mr. Christie’s office for any letters, logs of phone calls or records of meetings between Mr. Ailes and Mr. Christie. Mr. Cook asserted that that communications trail should be available under the state’s open public records act, but in mid-June, Mr. Christie’s office said that the records, if they exist, would be exempt upon “executive privilege and well-settled case law.”

Want To See Romneycare E-Mails? Good Luck…

Governor Mitt Romney of MA

Image via Wikipedia

A nice look at a time-honored headache: the governor’s e-mails…

For politicians, there is one time-tested method for thwarting public records requests: stall and stall and, when in doubt, stall.

This January, for instance, Alaskan officials finally responded to September 2008 requests for former Republican Gov. Sarah Palin’s emails, promising to release the files by the end of May 2011. By then the wait will have lasted longer than the time Palin spent in office.

If dragging out the release date proves ineffective, officials can also stall by requiring a pretty penny from the requester. Mississippi Gov. Haley Barbour, before he announced his decision to not run for the 2012 GOP presidential nomination, tried to chargeMother Jones upwards of $60,000 for the privilege of viewing his emails and travel logs.

But Republican presidential nominee frontrunner Mitt Romney has a diametrically different, more ingenious approach to public records: the document dump.

In January 2007, as the onetime Massachusetts governor was leaving office — and preparing for his first presidential run — he and his staff were required by law to transfer much of their work product tostate archives. Romney’s administration responded by handing over materials measuring approximately 700 cubic feet. The boxes covered everything in his four-year term — from legislative documents to legal counseling to travel records.

If one wants to search out all of Romney’s emails on, say, health care reform, good luck finding anything. Not every document was necessarily put in order, nor even labeled.

The clincher:

“There’s no discrete series of emails,” he adds. “We didn’t take any electronic or digital files.” Romney’s emails were printed out and stuffed into cartons.

Finding and collating emails on any given subject means digging through hundreds of boxes. In fact, if you request the full file on the creation Romney’s state Health Connector, expect at least a very long delay. You might get those materials by 2016.

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