The Academic FOI Story Just Grew Rather Exponentially…

Rachel Maddow in Seattle.

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Talking Points Memo has the news on the latest in the email labor wars, as the issue really heats up the FOI landscape. I’ll say at the beginning what I have been saying on the phone to reporters all day: these are lawful FOI requests from public, taxpayer funded institution. I’m not about to take FOI and put it before some “motives” test…

I’m quite sure there are those who disagree forcefully, but this is a classic case of an immutable property: information is either disclosable under the law or it isn’t, and in this case, unless the e-mails meet statutory exemptions, they are public records. I’ve never once predicated access on the motives of a requester, nor will I….

Here are some of the most important parts of the story…

A free enterprise think tank in Michigan — backed by some of the biggest names in national conservative donor circles — has made a broad public records request to at least three in-state universities with departments that specialize in the study of labor relations, seeking all their emails regarding the union battle in Wisconsin, Gov. Scott Walker (R-WI) and MSNBC’s Rachel Maddow, TPM has learned.

According to professors subject to the request, filed under Michigan’s version of the Freedom Of Information Act, the request is extremely rare in academic circles. An employee at the think tank requesting the emails tells TPM they’re part of an investigation into what labor studies professors at state schools in Michigan are saying about the situation in Madison, Wisc., the epicenter of the clashes between unions and Republican-run state governments across the Midwest.The requests specifically seek emails from all labor studies faculty at each school.

The think tank is also known for FOIAing state workers, including teachers and professors. In February, it criticized Michigan State for not fully complying with a FOIA request for emails surrounding a plagiarism scandal involving MSU faculty. A recent request was for public school teacher emails that may or may not have mentioned the possibility of a strike. Teacher strikes are illegal in Michigan. That FOIA request was denied, leading to outcry from the Mackinac Center and the Michigan Press Association.

Here is a copy of the FOI request.



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I Think It Was H.L. Mencken Who Said “Governments Lie.”

It’s an FOI request that serves as a perfect example of why we need access to the very documents at issue in Utah….amazingly, what was cited again and again by the lords of darkness was, at best, “an estimate.”

This fabulous story had me laughing out loud —

As Utah lawmakers argued why they needed the now-repealed HB477 to shield more records from public release, leaders repeatedly said their staffers had been swamped by records requests in 2010 and spent more than 400 hours filling them.

But an open-records request from The Salt Lake Tribune shows the Legislature can produce no records to substantiate that claim, and attorneys now say it was an estimate. Related records that do exist suggest that the estimate may have been high.

Also during debates, lawmakers worried aloud that the Government Records Access and Management Act (GRAMA) could force disclosure of their personal emails or texts.

However, the documents obtained by The Tribune show that whenever such records were requested recently, the Legislature denied them, saying they were not public under GRAMA (without changes sought by HB477).


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Obama Presses on FOIA. Agencies Ignore Him. More at 11….

Here is a fine example of how presidential leadership on FOIA can lift hearts and minds while doing nothing to move the hands of government

Ahead of a congressional hearing this week on whether senior political appointees at the Department of Homeland Security have blocked the release of some documents requested under the Freedom of Information Act, a series of newly uncensored emails indicates that some staffers complained for months of internal “meddling” by Obama-appointed officials.

Obtained by The Associated Press, the emails describe “crazy” and “bananas!” political reviews of document requests and “constant stonewalling” as files went to Homeland Security Secretary Janet Napolitano’s political staff as part of the pre-release vetting process.

A bit later in the piece:

In one recent instance cited by the AP, immigration rights advocates had asked the department for e-mails that political appointees had sent to U.S. Immigrations and Customs Enforcement about a controversial program. The internal search uncovered “embarrassing, crude exchanges” that were revealed not by the senders of those emails but by the recipients.

“Apparently, these embarrassing exchanges didn’t get turned over when the (political) front office conducted its search but they did when the ICE employees copied on these exchanges coughed up the responsive records,” the FOIA unit’s associate director, William Holzerland, wrote in January, the AP said.

Kudwa said that “no responsive documents were withheld” by the department’s political office. The Privacy Office, she added, never requested that the political appointees search for responsive documents on the ICE issue.

The department’s chief privacy officer, Mary Ellen Callahan, herself a political appointee, warned in emails that the department could be sued over the delays sparked by the political reviews. “This level of attention is CRAZY,” she wrote to her deputy in late 2009, musing that she hoped someone would submit a FOIA request on the process itself, the AP reported. Days later, the AP filed a FOIA request for documents related to political vetting and received close to 1,000 pages of censored emails last summer.
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Bloomberg’s First Look At The Fed Data It Sued For….

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And, not surprisingly, it’s troubling stuff

U.S. regulators closed Chicago- based Park National Bank in October 2009 when it owed $345 million to one of the lowest-cost lenders in town: the Federal Reserve’s discount window. Park National had been a constant customer at the window for more than 18 months before it failed, records show.

That glimpse into the loan program, gleaned through the Freedom of Information Act, will be expanded this week with an unprecedented view of the secret lifelines the Fed extended to hundreds of banks. Officials plan to release documents that amount to more than 6,000 pages, according to court records. Bloomberg LP, the parent company of Bloomberg News, and News Corp.’s Fox News Network LLC requested the records under FOIA, then sued after the central bank refused to release them.

Without identifying them as of yet, Fed officials say all the discount window loans made during the worst financial crisis since the 1930s have been repaid with interest. Cases such as Park National’s show how the lending amounted to a secret public subsidy, with few questions asked.

“Solvency is the big issue,” said Arthur Wilmarth, a professor at George Washington University Law School in Washington. “Was the Fed keeping banks alive when they should have died?”

Banks were able to tap the window for loans at rates below the market after subprime mortgage defaults contributed to record losses for them and credit markets began to seize up.


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AP: Colorado Government-Funded Cellphone Bill Hard to Figure…

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A nice piece of FOI-driven work from the Associated Press, even if they couldn’t quite put a precise price tag on it…

Colorado officials insist they’re combing through state spending to try to close an estimated half-billion dollar shortfall — but figuring out exactly how much Colorado pays for employees’ mobile devices is nearly impossible, and it’s a tab that largely has gone unnoticed.

And a bit later:

The AP sought public records from 19 state departments for this story.

OIT estimated that Colorado spends about $3.6 million per year on cellphones and other wireless devices, a figure based on multiplying last December’s state bill of about $313,000 by 12 months. OIT officials said it would be impossible to produce annual data for previous years because the information is not centrally maintained. OIT said it happened to have December’s tab but didn’t have other monthly totals available.

Those numbers don’t include employees of Colorado public colleges, whose budgets aren’t centrally tracked, or the state’s 100 lawmakers, who don’t have state-paid phones.

Rep. Jon Becker, a Republican who sits on the Joint Budget Committee, said it should be easier to determine how much the state pays — and for which services.

“Because $3.6 million, if that is the correct (number), and I do not know the correct number at this point, if that is the correct number, it’s not a drop in the bucket,” Becker said.

More at:

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Utah Conversation Shifts to Closing Email to Protect You…Watch Out!

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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.



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An FOI Request = The New American Thought Police? See, This is why I was Worried About Blowback…

Krugman in the Times today:

So we don’t need to worry about Mr. Cronon — but we should worry a lot about the wider effect of attacks like the one he’s facing.

Legally, Republicans may be within their rights: Wisconsin’s open records law provides public access to e-mails of government employees, although the law was clearly intended to apply to state officials, not university professors. But there’s a clear chilling effect when scholars know that they may face witch hunts whenever they say things the G.O.P. doesn’t like.

Someone like Mr. Cronon can stand up to the pressure. But less eminent and established researchers won’t just become reluctant to act as concerned citizens, weighing in on current debates; they’ll be deterred from even doing research on topics that might get them in trouble.

A tad bit overheated? Sure. But it’s just this sort of focus on the results of an FOI request, with no thought given to why such laws are so important in the first place, that gives me pause. If both parties start using FOIA to carpet-bomb one another, the bipartisan value of open government loses fans. And that worries me.


FOI Reform in Georgia Looking Good….

A promising start to FOI reform in Georgia, my home state…

Making good on a campaign promise to strengthen Georgia’s Sunshine Laws, including the Open Records Act and Open Meetings Act, Georgia Attorney General Sam Olens, a Republican, has proposed a series of significant changes to both laws.

According to a review of the current version of the proposal, HB 397, which was marked up by the House Judiciary Committee on March 10, 2011, the proposal would make many significant changes, some of which would directly address some of the ongoing issues involving secrecy and lack of transparency with the City Council of Atlanta.

“I have had the pleasure of working with the Attorney General long before either of us was elected to our current positions,” said State Rep. Jay Powell (R-Camilla). “I look forward to joining him in working with local governments, agencies and the press to increase transparency and open government while safeguarding legitimate government interests.”

Olens expects the legislation to be to taken up during the special summer session on redistricting, for possible consideration by the legislature in 2012.

First, the proposed legislation would ban secret votes.

The City of Atlanta has been a top culprit in taking secret votes.  APN’s News Editor, the present writer, is currently engaged in litigation with the City for a secret vote taken by Council Members at the February 2010 Council Retreat at the Georgia Aquarium.

Two courts–Fulton County Superior Judge Christopher Brasher and Georgia Court of Appeals, with Chris McFadden authoring–have ruled that the way the law is currently written, based upon a plain language interpretation, allows for secret votes so long as they are not roll-call votes.

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The New York Times with a great FOI-driven story on the expanding dragnet after the Bush administration eased up on rules about domestic intel:

Within months after the Bush administration relaxed limits on domestic-intelligence gathering in late 2008, theF.B.I. assessed thousands of people and groups in search of evidence that they might be criminals or terrorists, a newly disclosed Justice Department document shows.

In a vast majority of those cases, F.B.I. agents did not find suspicious information that could justify more intensive investigations. The New York Times obtained the data, which the F.B.I. had tried to keep secret, after filing a lawsuit under the Freedom of Information Act.

The document, which covers the four months from December 2008 to March 2009, says the F.B.I. initiated 11,667 “assessments” of people and groups. Of those, 8,605 were completed. And based on the information developed in those low-level inquiries, agents opened 427 more intensive investigations, it says.


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The New York Times weighs in on the Wisconsin email issue…

Nothing here to advance the story, but love the quote from Bill Lueders of the Wisconsin Freedom of Information Council:

“I’m pleased to see the Republicans making use of the open records law because they are as entitled to it as everyone else in the state,” said Bill Lueders, the president of theWisconsin Freedom of Information Council, a nonprofit group that supports open records and open meeting laws.