This fascinating and informative post from the wonderful Citizen Media Law Project brings the latest in the ongoing saga of requests for police dashcam videos in Seattle, raising timely issues of law, technology and policing…
Well, they may as well have named this mind-bogglingly bad bill that, for it will effectively provide the most secretive and untraceable communications (read influence-peddling) channel in any state anywhere. This is the single worst FOI exemption I have seen in years:
People filing Freedom of Information Act, or FOIA, requests may not be permitted to know the identity of a person or entity who is communicating with policymakers under new FOIA exemptions, which sailed through the General Assembly on Thursday.
House Bill 141 would shield information about anyone who contacts a public official unless the conversation includes mention of a public business transaction. Email records obtained under FOIA will no longer feature information identifying people who talk with local lawmakers.
People who support government transparency say the proposal provides cover for corruption, because lawmakers could redact the name of a lobbyist as easily as they could black out that of a concerned constituent.
Um, yeah. And I can think of a million and one ways in which such an exemption will run directly counter to any notion of accountability. Imagine the FOI request that yields a treasure trove of seemingly unethical conduct on behalf of a public official….but no one knows who the secret party on the other end of the conversation is! Lobbyists, cronies, and all sorts of money peddlers must be licking their chops.
The conversation turns from policy to politics in Utah, as the operatives see an opportunity to close e-mail for that most politically popular of reasons — the protection of constituent “privacy,” a word symbolizing much and meaning nothing.
It’s a smart political move for Utah GOP legislators to repeal the GRAMA amendments and to now push for “protections” of their own constituents’ private electronic communications with pubic officials.
So say several Republican political operatives UtahPolicy spoke with over the weekend.
“As far as I’m concerned, the only smart (GOP) officeholders are the Steve Urquharts out there who are saying – “Hey, we messed up, now let’s fix it,”” said one Republican who has been active in party politics for years.
The Republicans spoke to UtahPolicy asking that their names not be used because they still have to work with GOP legislators and party leaders.
Last Friday, as you know, the Utah House and Senate repealed HB477 – a GRAMA revision much-hated by Utahns.
And the main theme expressed in an open House GOP caucus and on the Senate floor debate (the House basically had no floor debate) was that while HB477 did do some good things, what citizens now have to understand that they are “naked” before the prying eyes of the media and other special interest groups unless GRAMA is changed.
“It’s smart,” said another GOP activist, “for lawmakers to now try to get across that constituents’ belief that their communications with their public officials are private may not be the case, and that unless (lawmakers act) they won’t remain private.”
While there is some argument about this – media attorneys, for example, say GRAMA already contains “protected” status for legislators’ and other public officials’ private communication with constituents – many legislators (even the Democrats, who nearly unanimously voted for repeal) worry about such constituent communications.
The post is quite right: it’s a shrewd move, politically. It’s also quite true that some emails between constituents and their elected officials might well be public. But….note this line:
…what citizens now have to understand that they are “naked” before the prying eyes of the media and other special interest groups unless GRAMA is changed.
Naked? Huh? What?
Let’s take a quick peek under the hood at the pertinent exemptions in the current law, courtesy of the Reporters Committee for Freedom of the Press’s fabulous Open Government Guide.
So, you send an e-mail to Sen. Blowhard. Before it would be released, it would be subject to this scrutiny:
1. Does it concern “records concerning an individual’s eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels”
2. Does it contain “records containing an individual’s medical history”
3. Does it contain “records of publicly funded libraries used to identify a patron”?
4. Are the “records received or generated in a Senate or House ethics committee concerning any alleged violation of the rules on legislative ethics if the ethics committee meeting was closed to the public?”
5. Are there “records concerning a current or former employee of, or applicant for employment with, a governmental entity ‘that would disclose that individual’s home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions'”
6. You can not, under Utah public records law, reveal a person’s Social Security number.
7. And you can not release “that part of a voter registration record identifying a voter’s driver license or identification card number, Social Security number, or last four digits of the Social Security number.”
Whew! So who’s naked now? And after these exemptions are applied, what constituent-to-public official correspondence, e-mail or otherwise, should then be withheld? And what about public official-to-constituent?
Let’s not forget, such correspondence might be Grandma contacting her local council about a pothole — but it might also be a powerful regulated industry seeking favor. Or their fellow influence peddlers. This is why they’ll push so hard for a huge exemption for constituent “privacy” — because it’s extremely helpful for public official “privacy.”
An exemption for such communication that “clearly constitutes an unwarranted invasion of personal privacy” as the federal FOIA does, with a public interest standard installed that could override such concerns, might do the trick.
But whenever government officials say they are out to “protect your privacy,” please understand that what they mean is “we’d like to take information that is available to you now, should you need it, and secure it for your protection.” That, my friends, is a surrender of sovereignty from the people to the government, and it should always, always be the last resort. A tad here, a tad there, and suddenly you needn’t worry, for the government is protecting you from all that scaaaaaary information…..
There are legitimate privacy interests here. Most of them are covered by the existing exemptions. The rest could be handled very neatly and narrowly. The early rhetoric (YOU ARE NAKED!) suggests otherwise.
- GRAMA, Open Government, and Privacy (windley.com)
- Questions about GRAMA (hollyonthehill.wordpress.com)
From a great AP story looking at denials and delays under FOIA….
The AP asked the Justice Department for records showing how much the U.S. spent during the last five years on first-class and business travel for government witnesses who testify in federal cases. The department quickly denied the request, saying it couldn’t release the records without permission of the government witnesses or proof they had died. It also cited reasons of personal privacy and the need to protect law enforcement records.
AP appealed the decision, arguing that the Justice Department wasn’t obeying Obama’s order in January 2009. The president told agencies to adopt a presumption in favor of disclosure. AP said the government was forcing AP to show that it was entitled to the records, when the burden of proof was on the government to show why revealing the costs would invade the privacy of witnesses.
This is way, way beyond insane.
Releasing mug shot photographs under the federal Freedom of Information Act would violate the personal privacy rights of those depicted, the U.S. Court of Appeals in Atlanta (11th Cir.) held on Friday in Karantsalis v. Department of Justice.
As the second federal appellate level court to address the issue, the Eleventh Circuit’s decision to deny access to mug shots held by federal authorities creates a split in the circuits; the U.S. Court of Appeals in Cincinnati (6th Cir.) held in 1996 that there was no recognizable personal privacy interest in such photographs.
Theodore Karantsalis requested access to the mug shots of Luis Giro, a wealthy former president of his own investment firm who pleaded guilty in 2009 to securities fraud. After having his request denied by the U.S. Marshal’s Service, Karantsalis represented himself before the federal district court before obtaining counsel to face the court of appeals.
The Supreme Court ruled unanimously today that corporations may not claim a “personal privacy” exemption when the U.S. government wants to release files involving them under the Freedom of Information Act.
The high court reversed that in an 8-0 decision. The new ninth justice, Elena Kagan, a former U.S. solicitor general, did not participate.
Writing for the court, Chief Justice John Roberts emphasized that, ” ‘Personal’ ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence or personal tragedy as referring to corporations or other artificial entities.”
The chief justice acknowledged that “adjectives typically reflect the meaning of corresponding nouns but not always” and cited as examples “corn” and “corny,” and “crank” and “cranky.”
More broadly, Roberts said that when it comes to the word “personal,” little support exists, even in the law, for the notion that it refers to corporations.
He closed the decision against the telecommunications giant with a bit of levity: “We trust that AT&T will not take it personally.”
We’ll keep the commentary coming as it emerges, as this is a major FOIA development.
- Court: No personal privacy for business in FOIA (seattletimes.nwsource.com)
- Sorry, AT&T: Corporations Probably Don’t Have ‘Personal Privacy’ (dailyfinance.com)
- What’s in a word: Does ‘personal privacy’ extend to corporations? – CNN (sectorprivate.wordpress.com)
This piece in Slate gets it about right:
AT&T slips into the Supreme Court chamber this morning, moments before arguments are set to start. He feels slightly affronted that nobody seems to notice him. (AT&T is a very emotional guy.) AT&T is handsome in the obvious way. (He has the Nights and Weekends plan). After these same justices ruled almost a year ago to the day that he had the same political-speech rights as human people, he’s feeling a lot more corporeal than he used to. If things go his way today, in the coming years he will enjoy not only free speech and personal privacy rights but the right to bear arms as well.
- AT&T mauled in oral arguments in arguing for “personal privacy” for corporations (washingtonpost.com)
- What’s in a word: Does ‘personal privacy’ extend to corporations? (cnn.com)
- Supreme Court Weighs AT&T Privacy Claim (techdailydose.nationaljournal.com)
The justices today said they will hear the Obama administration’s appeal of a ruling that said corporations can invoke a provision in a federal document-disclosure law that protects against invasions of “personal privacy.”
The government says the U.S. appeals court ruling upset the decades-old understanding of the Freedom of Information Act, under which hundreds of thousands of requests are filed every year.
The ruling “likely also will result in the withholding of agency records to which the public should have access, including records documenting corporate malfeasance,” the administration argued in a brief filed by then-Solicitor General Elena Kagan.
Related articles by Zemanta
- Top Court to Decide Corporate Privacy Rights (nytimes.com)
- High court takes case on corporate privacy (sfgate.com)