We Need Secrecy for Drones, So We Need Secrecy For…

The Justice Department has a new legal argument for why the government should be allowed to conceal the postmortem photographs of Osama bin Laden: It’s doing the same thing with the CIA’s classified drone program.

On Wednesday, the department filed court papers [PDF] asking a federal judge to rule against the government watchdog group Judicial Watch, which is suing for the release of “all photographs and/or video recordings” taken of bin Laden during the May 1, 2011 raid in Abbottabad. The filing rehashes many of the government’s stated reasons for concealing the photographs (inciting violence in the Muslim world, revealing classified “operational methods,” etc) but also leans on the CIA’s refusal to acknowledge its widely-publicized drone program.

The argument confronts a claim by Judicial Watch that releasing the bin Laden photos would not pose a national security risk because everyone already knows the U.S. killed bin Laden. In response, the Justice Department says the CIA’s drone program, like the U.S. raid in Abbottabad, is also public knowledge but that doesn’t mean releasing information about it wouldn’t jeopardize national security.

“The fact that the public may already speak freely of the existence of drones, or speculate openly that such a program may be directed in part or in whole by the CIA, does not emasculate the CIA’s warnings of harm were it forced to acknowledge officially the existence or nonexistence of requested records,” reads the filing.

It’s the sort of argument that makes government transparency advocates squeamish. As The New York Times noted about the CIA’s failure to acknowledge the drone program in October, “The secrecy compulsion often merely makes the government look silly … But it can also hinder public debate of some of government’s most hotly contested actions.” Now, turns out, the Justice Department is using the government’s much-pilloried refusal to acknowledge the widely-known drone program to justify its withholding of the bin Laden photos, creating a kind of slippery slope of secrecy.

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The Plot Thickens in Wisconsin: Did the Governor Create a Parallel E-Mail Universe?

Today’s plot twist in the Wisconsin recall saga contained a nugget of interest to FOI types…in a story on criminal charges being filed against a couple of Walker associates for politicking on state time, came this:

Milwaukee County prosecutors also made the surprising disclosure that top Walker aides set up a private Internet network to allow them to communicate with one another by email about campaign as well as county government work without the public or co-workers’ knowledge.

The emails Walker officials traded via the shadow network could provide investigators with a trove of information as they pursue other angles in the case. Earlier this week, the Journal Sentinel reported that the probe was focusing on possible bid-rigging and other misconduct in the competition to house the county Department on Aging in private office space.

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Delaware Re-Evaluates Secret Juvenile Justice System…

I have long argued that a bit of sunshine would do a great deal of good in the world of juvenile justice, as secretive an institution as exists in American life. Delaware officials might just agree, at least in part. Good for them:

State lawmakers are considering whether to order a study of the feasibility of opening Family Court proceedings to the public.

Open-government advocates have complained for years about the secrecy in which Family Court operates.

Family Court is a trial court that handles domestic relations, juvenile delinquency, and intra-family misdemeanors. Under state law, most Family Court proceedings involving issues such as divorce, adoption, termination of parental rights and custody issues are closed to the public.

But the Delaware Constitution says all courts must be open.

A resolution to be considered by the Senate Judiciary Committee on Wednesday calls for the creation of task force to determine whether existing laws regarding Family Court proceedings should be modified to reflect a presumption of open courts.

Toyota, NHTSAA sued; allegations of video coverup spur FOI case

Passing this little nugget along…

Today there is another significant development in the ongoing saga of the Toyota sudden unintended acceleration story.  As revealed in a Freedom of Information Act suit that was filed today by Safety Research & Strategies, Inc. (SRS), the National Highway Traffic Safety Administration (NHTSA) has withheld materials and documents that might show some cases of unintended acceleration (UA) are caused by an electronic-based defect in some Toyota vehicles.  SRS alleges that the NHTSA videotaped these incidents and also “downloaded data from the vehicle during at least one incident when the engine raced uncontrolled.”

However, SRS says the agency never released this evidence, and moreover, initially failed to record any information about the event in its complaint. When SRS sent a Freedom of Information Act request last summer to the NHTSA for all documents associated with this incident, only a few documents were provided and the agency “refused to release the videos, photographs and computer data.”

In response, today SRS has again sued the NHTSA for improperly withholding “material that has vital public interest.” The SRS suit alleges that “the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding records involving the McClelland incidents.”

The complaint claims that last year two NHTSA engineers collected data and video during an inspection of a Toyota Prius owned by Joseph H. McClelland.  McClelland is an electrical engineer who works for the Federal Energy Regulatory Commission.  Also according to the complaint, McClelland first experienced UA with the Prius after it had accumulated about 280,000 miles. During the first incident of UA, McClelland said that while driving home, the Prius began to carry out “severe acceleration.” Aware of the controversy regarding Toyota’s vehicles and Toyota’s position that the problem can be caused by floor mats and gas pedals, he inspected both and found they were in their normal positions. The accelerator pedal was not in contact with the mat and sat fully up while the engine revved.

Hopefully press coverage of the SRS suit and the McClelland case with help re-ignite NHTSA’s investigation, and inspire them to take a further look at the sudden acceleration issue. The facts of the McClelland incident certainly suggest, at least from a common sense perspective, that there might be another explanation to UA events other than floor mats and gas pedals.  It’s not a simple issue, and the complexities of vehicle software, ‘tin whiskers’ and electronic system hardware make this an incredibly complex issue for government investigators to explore.  However, NHTSA should not be allowed to sweep this issue under ‘the mat’ in the face of what could be a serious ongoing risk to highway safety.

What’s the Worst FOI Fail of 2011? Nominate it for the Black Hole Award…

Society of Professional Journalists

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The Society of Professional Journalists is seeking nominations for its Black Hole Award.

The Black Hole serves as the counterpoint to the Sunshine Award, highlighting particularly heinous violations of the public’s right to know. By exposing the bad actors, we hope to educate members of the public to their rights and call attention to those who would interfere with the people’s right to acquire government information so that they may hold their elected officials accountable and enhance self-governance. 

The recipient of the 2011 Black Hole Award was the Utah Legislature and Gov. Gary Herbert for passage of the most regressive freedom of information legislation in recent history. After the award was “presented,” the measure was repealed before it became law.

“The first Black Hole award given by the society had tremendous impact,” SPJ Freedom Of Information Chair and Utah FOI advocate Linda Petersen said. “The award’s real power is the exposure it gives to those practices by some elected officials that seek to undermine, and in some cases, eliminate open government. Like Utah’s law that was repealed, most of them can’t stand the light of that exposure.”

In addition, SPJ handed out dishonorable mentions to five other government entities for their secrecy.

 Here are the conditions nomination should meet:

1. Violation, in spirit or letter, of any federal or state open-government law. This would mean either a clear violation of the statute governing access to public records or public meetings, or using an ambiguity or loophole in the law to avoid having to comply with the law. For example, conducting multiple meetings with small groups that do not constitute a quorum, e-mail discussions outside the public view, or charging unreasonable amounts to copy documents.

 2. Egregiousness. In order to maintain the effectiveness of the Black Hole award, it should not be given for just any openness violation. There needs to be a demonstration that this was not an isolated incident or done in relative ignorance. Recipients should know they are trampling on the public’s right, placing personal or political interests ahead of the public good or endangering public welfare. Examples might include an agency or official who attempted to keep information secret to avoid embarrassment or hide misdeeds.

3. Impact. The case should be one that affects the public rather than an individual. We want to avoid using the award to settle vendettas against recalcitrant bureaucrats. Essentially we want to see a case where their withholding the information hurt the general public rather than an individual, or its release would further public welfare.

The SPJ Freedom of Information Committee is seeking nominations from local SPJ chapters, SPJ members, other journalists and private citizens. The recipient or recipients will be announced during Sunshine Week, the second week of March.

Deadline for nominations is Monday, Feb. 21. If possible, nominations should include, where possible, supporting documentation to allow SPJ to determine if the criteria have been met. The documentation can include any of the following, although the more documentation the better: 

• News coverage of the violation.

• Public records chronicling the dispute.

• Legal papers if there was a lawsuit or other legal action involved in the matter.

• Any expert opinion from an attorney, official or open-government expert that the violation occurred.

• Contact information for the parties involved to allow the committee to obtain more information if needed, including from the government official.

Please email nominations to FOI committee member Mike Farrell, farrell@uky.edu, or mail them to the address below.

 

Mike Farrell, Ph.D.

Director, Scripps Howard First Amendment Center Associate professor, School of Journalism and Telecommunications

144 Grehan Building

 Lexington, KY 40506-0042

 

 

 

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Transparency Has Many Faces. Here is One Well Worth Your Time…

This seems like a heck of a good idea. I am no telecommunications policy guy, but I am a transparency advocate, and I can get behind this idea in about a heartbeat.

From the media reform group SavetheNews:

Logo of the United States Federal Communicatio...

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In the media reform world, we often say we’re fighting for “better” media. Of course, “better” is the sort of word that begs comparison: better than what? If we’re to demand more of our local broadcasters, we need to know what’s wrong with the status quo.

Broadcasters use the public airwaves free of charge, and in return are supposed to provide programming that fulfills the news and information needs of communities. The Federal Communications Commission requires broadcasters to keep public files detailing exactly how they serve local needs. But these records are generally kept in file cabinets at local TV stations and are not easily accessible. So the pressure is on for broadcasters to put these files online in a publicly searchable database.

The FCC is currently taking public comments on just such a proposal; the deadline for comments is this Thursday, and already thousands of people have urged the agency to adopt the rules. Earlier this month, the Public Interest Public Airwaves coalition, which includes Free Press, submitted four petitions totaling 68,000 signatures to the FCC in support of the rule change.

While the proposal may seem like a small tweak, it’s actually a major proceeding that will have lasting implications on the kind of news and information we receive. Enhanced-disclosure rules would do the following:

  • force broadcasters to reveal how much money political campaigns spend on advertising at local stations
  • require broadcasters to document who is paying for political ads
  • require broadcasters to disclose sponsored “news” segments produced by advertisers
  • reveal whether stations are engaged in “covert consolidation,” an increasingly common practice in which stations merge operations and air the same newscast on multiple stations

And finally, the rules would make broadcasters disclose how much of their programming actually serves the public interest.

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Judicial Watch Sues Obama Administration Over Access to Mortgage Docs

Judicial Watch, the organization that investigates and fights government corruption, announced today that it filed a Freedom of Information Act (FOIA) lawsuit on January 3, 2012, against the Obama Department of Justice and U.S. Department of Housing and Urban Development to obtain documents pertaining to accusations of fraud against the nation’s five largest mortgage companies and the creation of “federal accounts” to settle probes into faulty mortgage practices.

The Obama administration has reportedly been engaged in settlement negotiations behind closed doors with mortgage companies that would result in at least $20 billion in payments from the nation’s major banks.

Pursuant to a Judicial Watch FOIA request filed with the DOJ and HUD on May 17, 2011, Judicial Watch seeks the following records:

--  A set of government audits used to support allegations that the
            nation's five largest mortgage companies of defrauding taxpayers in
            the handling of foreclosures on homes purchased with government-backed
            loans.

        --  A term sheet which outlined the Obama administration's settlement
            offer to the mortgage companies accused of fraud. The terms described
            on this document allegedly included the creation of a federal account
            funded by the nation's largest mortgage firms to help distressed
            borrowers avoid foreclosure and settle state and federal probes into
            alleged faulty mortgages practices.
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