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,, 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

        --  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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Here is a great idea: rate your state’s FOI proposals!

Now this is clever:

A coalition of news organizations from across Utah has created a new system to rank legislation dealing with the state’s open records law.

The Utah Media Coalition’s rating system will let the public and lawmakers know how it views proposed changes to the Government Records Access and Management Act, or GRAMA, Provo’s Daily Herald and the Salt Lake Tribune reported.

The system will rank proposed changes in three categories: a “bright light” for legislation that is good for open government, a “pale light” for legislation that is neutral, and “lights out” for legislation that would harm open government access.

The new GRAMA WATCH program follows a public outcry last year when lawmakers rewrote Utah’s records law to protect text messages, instance messages and video chat from public release. Gov. Gary Herbert called lawmakers back into session to repeal HB477.

“I think after the HB477 fiasco, the public and media need to do a better job watching the legislative process,” said Joel Campbell of the media coalition. “We will be rolling out a rating whenever we identify a bill that deals with GRAMA. We feel this will keep the public involved in the process.”

A Bad Bill Percolating in West-By-Gawd…

Bad ideas, West Virginia style:

A document’s content or context would help determine its release under West Virginia’s Freedom of Information Act, under an update to the open government law unanimously passed Wednesday by the House of Delegates.

Delegates advanced the measure to the Senate after a party-line vote rebuffed a GOP-sponsored amendment. It’s the first bill exchanged in the Legislature since the regular session began last week.

The law exempts records deemed internal memos or letters. House Minority Leader Tim Armstead sought to limit that to cases where the contents are covered by a separate exemption.

The Kanawha County Republican’s amendment also proposed that when a criminal investigation prompts charges, the agency involved compile a report that can be disclosed under FOIA unless it would hinder prosecution. The law now specifically exempts several categories of law enforcement records.

The amendment failed after Judiciary Chairman Tim Miley, D-Harrison, said it would greatly alter the bill and go beyond what his committee considered when it endorsed the measure on Friday.

The bill defines a public record as any writing prepared or received by a public body, if its content or context relates to the public’s business. Lawmakers have sought to revise that term since a 2009 state Supreme Court ruling rejected a FOIA lawsuit by The Associated Press.

Baaaaad idea, West Virginia. Why does “context” have anything whatsoever at all to do with whether a document is public or not? Who does medium matter either? A document is public unless it meets one of the state’s exemptions to disclosure. See? Isn’t that easier? Context is all in the eye of the beholder. If it’s a record that does not meet an exemption, it’s public. Simple as that. Don’t allow context to stick its nose under the tent…

This Hassle-the-Photographer Crapola Is Getting Old…

Not really FOI, but hey, this is getting downright ridiculous:

A Las Vegas police officer detained a man for refusing to walk away after taking a photo of a movie set that was completely visible to the public.

The man video recorded his interaction, which doesn’t show the officer’s face or name, but allows us to clearly hear him trying to justify giving the photographeran unlawful order.

The photographer whose username is 1willwanders on Youtube, held his ground, asking the officer to cite him the law that would allow him to single out a person for taking photos on a public street, ordering him to walk away while countless other people are allowed to remain because they are not taking photos.

The officer was unable to do so. The photographer was allowed to walk away after more than two minutes of debating with the cop.

Photo of a police officer, Boston, USA

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See? This is What I was Worried About…

Remember last year, when e-mail controversies swirled around academics at Wisconsin and UVA? I fretted then that the episodes likely would find their way into bad legislative proposals aiming nuclear weapons at molehills…and then along comes this:

[Maryland] House Bill 62 would allow universities and community colleges to deny requests for “data or other information of a proprietary nature that: was produced or collected by or for faculty or staff of a public institution of higher education; was produced or collected in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues; and has not been publicly released, published, or copyrighted.”

If that’s not enough, the secrecy would extend to “correspondence or research produced by faculty of a public institution of higher education on public policy issues.”

But isn’t a public university professor a public employee?

“Professors are different than bureaucrats, and there are issues of academic freedom involved here,” said Del. Sandy Rosenberg, D-Baltimore, the primary sponsor.

He said the bill was prompted by controversies in Virginia and Wisconsin.

Virginia Attorney General Ken Cuccinelli has sought a former professor’s emails under a state fraud law, and a state lawmaker sought the same emails under the state’s open-records law.

This was painted as an attack on academic freedom, on the theory that making professors’ emails public would have a chilling effect on research and open debate. The Virginia cases are still in court.

Meanwhile, Rosenberg read a New York Times column by Paul Krugman on a University of Wisconsin professor. After professor William Cronon wrote a piece criticizing his state’s new Republican governor and a blog post on a group pushing conservative legislation, Republicans filed a public-records request for his email.

This, too, was painted as an attack on academic freedom, even though some of Cronon’s emails were turned over and nothing came of it.

The Kind of Reporting FOI Makes Possible….

Kudos to Milwaukee (Wis.) Journal Sentinel investigative reporter Gina Barton, whose excellent October 2011 three-part series “Both Sides of the Law” found that at least 93 Milwaukee police officers had been disciplined for violating laws and ordinances, but didn’t lose their jobs.

Barton said it took nearly two years of records requests, a court case, and $7,500 in fees to complete the story. Her findings made an impact in the local community — and with state legislators.

In such tough times for newsrooms, such work is particularly noteworthy. The dedication of time and resources here is impressive, and the results? Well, the speak for themselves. Check out the series here. And don’t miss this section, which contains the FOI saga and all of the primary source documents.

This is also powerful evidence of why internal complaint files must be public — and they are not in many states — and what lurks in the darkness when such records are kept secret.

Milwaukee Police Department

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Can’t Televise the Trial? Use Puppets!

This is simply fabulous.

Among the most interesting and, perhaps, entertaining aspects of the corruption trial of former Cuyahoga County Commissioner and County Democratic Party boss Jimmy Dimora, is its treatment by the media.

By far, most of the Cleveland-based news organizations following the trial — The Plain Dealer, all four television stations, and some radio stations — follow as any spectator would: inside the courtroom of U.S. District Judge Sara Lioi at the Seiberling Federal Building in Akron.

Lioi has adopted the anti-Judge Ito (my term, in honor of O.J. Simpson presiding criminal trial Judge Lance Itoview of managing the reporters covering the People v Jimmy Dimora.  An excellent aggregation of the Plain Dealer’s coverage of the case can be found here.  This includes the time-honored federal court restriction against microphones and cameras in the courtroom. Reporters take notes then share what transpired during breaks in the testimony, which at times has been lurid. Testimony includes wiretapped phone conversations and video that includes now-famous trips to Las Vegas for gambling binges allegedly underwritten by a contractor as well as engagements with prostitutes.

The ban on electronic media in federal court isn’t new, but what’s unusual how one local station, Raycom’sWOIO-TV, decided to handle its presentation.

19ActionNews decided against a courtroom artist and the ethically dubious use of actors to re-create testimony. Instead, WOIO opted for the Puppet Trial.

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