FOI FYI

Happy 42nd birthday, FOIA! (or is it happy? CJOG report glum)

On the eve of the 42nd anniversary of the federal Freedom of Information Act, signed into law July 4, 1966, the Coalition of Journalists for Open Government released its annual report on FOIA performance, titled "An Opportunity Lost." According to the report, federal agencies have made little progress in responding to FOIA requests, despite a two-year-old presidential order to improve. The report contradicts a glowing evaluation by the Justice Department last month claiming "remarkable improvements." The DOJ report was based on progress agencies made based on their own established goals. The CJOG report is based on comparing actual performance to previous years and reporting requirements mandated by Congress. Among some of the findings, agencies cut FOIA personnel, about half the requests were not responded to within the 20-day deadline, and the percent of requesters getting what they asked for fell to 60 percent, a record low.

Alas, FOIA. There was so much hope and promise when you were young. But now, in this mid-life crisis, it's time for real improvements - stiff penalties for noncompliance, a functioning ombudsman office, and increased commitment and funding from leaders. Let's hope your birthday next year is more jovial!

Police incident reports now must be made available in Mississippi

Police in Mississippi now must provide basic incident reports daily, including the offense, suspects and where and when a crime took place. According to news reports, compliance was been mixed Tuesday when the new law went into effect.

Twenty years ago it was routine for police to provide incident reports every morning for reporters and others to look through. Gradually that information has been taken away nationwide. Now it takes laws to bring back that basic access. If your state doesn't require basic incident reports to be made public, then follow Mississippi and get your law changed.

College editors sue Georgia college over budget cuts

Student editors at Armstrong Atlantic State University's paper, The Inkwell, filed suit Monday against the university, saying the university slashed the newspaper's budget in retaliation for criticizing the administration. In March, the budget was cut from $54,500 to $39,740, a 27 percent reduction. Student government leaders had complained about the newspaper's coverage (finding university noncompliance with the Clery Act) when deciding the paper's budget. See story by the Student Press Law Center. SPJ sent a letter to the administration opposing the budget cuts (didn't hear back from the university).

Some professional journalists shrug when they hear of this kind of punishment/censorship, saying the school is the publisher and everyone has a publisher/editor to report to. The thing they forget is that the "publisher" is the government, so it's equivalent to the mayor or governor censoring or cutting funding to a local newspaper (especially after negative coverage). Not so good then, eh? The fact is, many university administrations and student governments try to punish college papers by reducing funding. College papers should protect themselves. First, they can get the board of regents to adopt a policy affirming press freedoms (see a great example at SPJ's student press freedom page). Second, write about it and get the support of the state's media (and public and legislators). Third, try to get self-sufficient so the paper doesn't need money from the university or student government. If that doesn't work, do like these brave students: Sue.

FOI Tip (from sociologists): Use "informants" to get inside

Ever feel like public officials don't take you or your records request seriously? Ever run across discrimination because you are a woman, nonwhite, short, obese, or just plain different than the white male officials you deal with? You aren't alone. At an SPJ training session in Moscow, Idaho, a few weeks ago I chatted with a few female journalists who mentioned that they had problems getting male police to take them seriously when getting information or records. Indeed, research shows people are more likely to say "yes" to people who are tall, white, blue-eyed, trim, and male. It shouldn't matter what you look like or who you are when you request records (most FOI laws even state that officials can't deny a record based on who a person is), but in my research I notice that the white guys achieve more compliance (I also notice that dressing better seems to improve compliance). That's racism and sexism at work.

So what do you do if you aren't a tall, trim, white guy? You can go about your business and say officials be damned, and use other techniques to get compliance (including suing if you can!). Or, you can consider a technique used by sociologists to get into a different culture:  "informants."

No, I'm not talking about spies. Informants are people you can take with you into a different "culture" to help get integrated and accepted. One of the Idaho journalists said she would take a tall white guy with her to the police station and they would talk to him. After a few visits they would take her seriously too. I've used this technique when covering tribes. I noticed that if I drove around a reservation alone I would get dirty looks - I'm a white guy who looks like a federal BIA bureaucrat. So I would find a respected tribal member and have that person drive me around. People were more likely to accept me and give me access to information. Now, the initial suspicion could be directed toward strangers and an informant might help regardless of what you look like. In any case, having that person seems to help. If you are covering an agency, have a clerk or respected long-time mid-level manager show you around and introduce you to people. Even the PIO is better than nobody.

We shouldn't have to use informants to have people accept us and provide records, but the reality is that understanding people's minds help open doors to the information you need.

Old and moldy pending crime investigations can be kept secret, Georgia court rules

In a major setback for access to information in criminal cases, the Georgia Supreme Court ruled that police can withhold documents in investigations that are still open, even if they've been unsolved for decades, reports Georgia SPJ Sunshine Chair Johnny Edwards (and see story). Even worse, the court said cases can be made secret only when "all direct litigation... and prosecution has become final or otherwise terminated." So that means a case is completely secret until a prosecution? If that's the case, Georgians are in a world of hurt. At least most states allow information to be made public once the case is forwarded to a prosecutor for charges (long before prosecution takes place). Also, how are Georgians going to figure out whether cold cases are being investigated properly if they can't see what's going on? Zowie!

Georgia journalists: Track how this case effects your access to criminal records. If things dry up jot down the details and let me know (cuillier@email.arizona.edu) or even better, contact Hollie Manheimer at the Georgia First Amendment Foundation. Maybe a legislative fix will be needed. Let's talk about it at the SPJ National Conference Sept. 4-7 in Atlanta.

Dams of death: Army Corps of Engineers' secrecy puts lives at risk

The U.S. Army Corps of Engineers continues to put American lives at risk by keeping dam inventory secret, even after the recent Midwest flooding. The Corps used to provide the National Inventory of Dams online for anyone to download and find out if they had a high hazard dam in their community, and when it was last inspected. But a few years ago the Corps took down the data and as a result citizens are left in the dark. During the recent floods journalists asked for the data but were denied, according to Investigative Reporters and Editors and a story by Editor & Publisher. The Corps claims the data include sensitive information that could jeopardize critical infrastructure if it were made public. Hooey. The Corps is actually making us LESS safe, putting American lives at risk.

Some years back I analyzed the National Inventory of Dams data and found an earthen dam in our county that had structural problems and would wipe out a small town if it gave way. Funding for infrastructure repairs is not exactly flowing nowadays, but the news coverage prompted money to fix the dam. In this country, problems exposed are problems fixed. A community on the island of Kauai in Hawaii wasn't so lucky - in 2006 a dam burst, killing eight people (see CNN story).

Now, the Corps claims that the information needs to be secret to protect us from terrorists. Give us a break. I put "dam" in Google and the second entry is about Hoover Dam, including directions for the million visitors a year, and links to other dams, such as the nation's largest concrete structure, Grand Coulee Dam in Washington state (which touts a nightly laser light show and nearby camping). Put "dam inventory" in Google and you'll find lists of dams and their locations. If terrorists want to find a dam to blow up, it's not too hard.

So the terrorists can find the dams to kill us, but we don't have the information to protect us from our own failing infrastructure? That's asinine. More likely the Corps wants to avoid scrutiny and public knowledge of its own problems. Journalists should demand the Corps make the information public again (specifically, Corps attorney Timothy L. Felker and congressional representatives). Tell readers about the danger our own government is putting us in. Save lives through FOI before it's too late.

Toni Locy subpoena likely moot with DOJ settlement

It appears former USA Today reporter Toni Locy won't have to cough up $50,000 or go to jail to protect her confidential sources, according to the Reporters Committee for Freedom of the Press. The U.S. Department of Justice settled the Privacy Act suit filed by Steven Hatfill, the former "person of interest" in the anthrax attacks. With the settlement, there's no need for the trial to continue (or for Locy to provide her sources as requested by Hatfill and demanded by a judge). Whew! The DOJ agreed to pay Hatfill $2.8 million outright and $3 million paid out over 20 years.

Congratulations to Locy for standing strong and providing inspiration for journalists everywhere. I particularly liked her speech at the National Freedom of Information Coalition conference in May when she told journalists: "It's time to turn and fight!"

CJOG closing its doors: Thanks for all your great work, Pete Weitzel!

The Coalition of Journalists for Open Government, led for four years by Pete Weitzel, will be closing its doors this summer as its funding runs out. The organization (see www.cjog.org) has helped build Sunshine Week and the Sunshing in Government Initiative, and has produced research to help shed light on FOI issues. Its research and focus on federal freedom of information laws will be conducted by the Reporters Committee for Freedom of the Press and Sunshine in Government Initiative. Kudos goes to Weitzel, a longtime journalist who founded the Florida First Amendment Foundation and helped launch the National Freedom of Information Coalition. He can be contacted at pweitzel@rcfp.org. The access community is lucky to have such a dedicated person. Great work, Pete!

Court grants access to city council tapes in Illinois

An Illinois appellate court said citizens should have the ability to listen to tapes of city council meetings. Duh. Oddly, the city of Collinsville had argued that it didn't have to let a person listen to original audiotapes of city council meetings, saying that they could charge copy costs to copy the tapes. The city claimed that the state public records law did not specify that it had to provide an original public record to requesters, according to a story in the Collinsville Herald. This is typical of some governments, trying to find loopholes in the law by saying the law doesn't specify they have to make information public. But in reality, most freedom of information laws work the other way - the information is public unless there is a law stating otherwise. So don't let a city attorney bamboozle you with semantics and legal twists. Judges see right through it.

Open records laws improved in Tennessee, Rhode Island

Tennessee record requesters will now be able to use an ombudsman to work out disputes with government agencies and arrest records must be more detailed in Rhode Island thanks to new legislation passed. The Tennessee law also requires agencies to respond to requests within seven days and the Rhode Island law now requires a seven-day response instead of 10 days. This has been a good year for improvements in open records laws, and the push needs to continue. Journalists and access advocates should identify weaknesses in their state laws, and then shore them up through legislation. To compare parts of your state law to other states, check out the Citizen Access Project or compare via the RCFP Open Government Guide.

Regime changes can lead to mass shredding of public records

The Utica (N.Y.) Observer-Dispatch reports that massive amounts of public records were apparently shredded by an outgoing Utica mayor's administration before a new mayor came into office. At least that's what the current administration says. Typically, state agencies, cities, counties, and other jurisdictions subject to public records laws are required to follow established retention schedules that dictate how long records are to be held before being sent to storage or destroyed. Officials who fail to follow these policies should be fired or penalized with personal fines - either they are ignorant of the law (which is bad), or they know the law and are knowlingly violating it (which is also bad). More states need tougher penalties for this kind of records bungling.

FOI tip: Web sites from UK and UF with great document-driven story ideas

Looking for great stories you can do with the help of documents? Here are three Web sites that might help:

1. The Guardian in London has created a Web site where it posts stories based on public records, up to more than 1,200 now. Brits are going gangbusters on access, finding all sorts of problems because of their relatively new Freedom of Information Act. For example, check out the story where The Guardian requested records involving city officials' use of surveillance powers intended to monitor organized crime, finding that most of the officials were using the powers to spy on law-abiding private citizens' phone and e-mail.

2. The BBC has a similar Web site highlighting great stories they did through the use of their FOIA law. Some examples include finding that 20 percent of subway ("tube") drivers are given retraining each year because of unsafe driving, and the fact that many people are certified as dead even though they aren't. What's neat about these sites is you might find a story idea that hasn't been done much or at all in the United States yet.

3. Closer to home, check out a cool site, titled The Storites Behind the Stories, put together by folks at the University of Florida (led by SPJ FOI Committee member Ana-Klara Hering). The project highlights 30 great document-driven investigations in the past 30 years in Florida.

For other links to useful FOI resources and Web sites providing document-driven story ideas, check out the SPJ Sunshine Week site.

National security classification costs $9.91 billion in 2007

The cost of classifying federal documents as secret increased 4.6 percent last year to $9.91 billion, the highest ever reported by the Information Security Oversight Office. See the report, as well as a good analysis by Steven Aftergood from the Federation of American Scientists.

Obama begins the transformation: Spin, control, hide, lie

So it begins, the transformation of a candidate who had claimed to support open government and access to information, but is now heavily controlling media access and even lying to journalists. A story today in The New York Times explains how Barack Obama bars cameras from large gatherings and uses special exits to avoid journalists' questions. In February he initially wanted all campaign-trail interviews to be off the record (see FOI FYI blog item). Then there was the incident where he told journalists he would be flying to Chicago, and he sent his plane to Illinois with the traveling press corps on board. He, however, stayed in Washington, D.C. In response to angry letters from media organizations, an Obama aide said, "We wouldn't be doing our job if we didn't occasionally irritate the press."

Is it news that a politician would spin, hide, and lie to journalists? No. But it's still a shame. Here's a candidate who is running on a platform of change, yet is playing the same secretive games as everyone else. While he has made some noise about access, such as releasing his income tax returns, co-sponsoring the Federal Funding Accountability and Transparency Act (posts government contracts online at USAspending.gov) and signing the Reason Foundation's Oath of Presidential Secrecy, he should run his campaign openly. This isn't about democrats vs. republicans, or Obama vs. McCain. It's about honesty vs. deception, and openness vs. secrecy. Obama and McCain have yet to complete the Sunshine Week questionnaire regarding their views toward FOI. Can we please get a presidential candidate to pledge real change in transparency, and then stick with it? It's not too late, Sen. Obama.

Miami photographer's case finished; Tips for police confrontations

Miami photographer Carlos Miller was found guilty of resisting arrest in a drawn-out legal battle over taking photos on a public street, but what is astonishing in this case is how the judge reacted. Even though the prosecutor asked for only three months probation and court costs, Judge Jose L. Fernandez slapped Miller with a year probation, court costs, 100 hours of community service, and anger management class. In court the judge told Miller he was appalled by Miller's non-remorse (for taking pictures in public?), body language during trial and chit-chat with his relatives. The jury found Miller innocent of disobeying an officer and disorderly conduct, but guilty of resisting arrest, according to Miller's blog.

The case stemmed from an incident Feb. 20, 2007, when Miller was doing freelance photography for a story about Miami's rapid gentrification. He came across several Miami police officers interrogating a man and began taking photos, on a public street. Police ordered him to stop and to cross the street. Miller identified himself as a journalist and noted that the street is public, then police threw him to the ground and arrested him. Before becoming a freelancer, Miller had worked for the Arizona Republic and other newspapers in Arizona, New Mexico and California.

The Society of Professional Journalists provided legal aid to Miller through its Legal Defense Fund. It's an outrage when the justice system forgets that people have a right to observe and photograph in public. The photographer was not interfering with anything. Just taking pictures. It's similar to the Albuquerque television cameraman who was arrested in a similar situation. See an update story last week stating that police will be required to go through training but the photographer still has a court date set for July 1 for failure to obey.

Tips for police confrontations:

If police attempt to prevent you from gathering information in a public place, object, follow their orders, then call their superiors and get it worked out. Stay outside of police tape with the rest of the public. If it's crucial you stay there, or there is no crime scene established, then you make the call (in consultation with your boss or lawyer if you have time) on whether to stay. But if the police arrest you, do not resist and be prepared to go to jail and potentially have to fight in court. Contact media organizations, such as your state press association and SPJ to get the word out. Write about it. The main thing is not to lose your cool. A photographer in Washington state had a heated argument where he got in an officer's face, their noses touched and so police charged him with simple assault and obstruction of justice. Fortunately, the charges were dropped, but it might not have worked out that way. 

For more tips on your rights to public places and crime scenes, see the Reporters Committee for Freedom of the Press "field guide." Also see the RCFP guide to access to places, specifically the part noting that journalists are not immune to prosecution for ignoring police commands. For photographers, see the RCFP Guide to Privacy, the National Press Photographers Association Web site, and the Criminal Justice Journalists Web site (particularly their great guide to covering crime and justice). Also, the Dart Center has some great tip sheets for covering victims and crime scenes. Ultimately, stay cool but stay strong. Long after the confrontation is over, it's better in the eyes of a judge, jury, or the public, that you were the sane, level-headed person, and that the police were out of control and unreasonable.

When in doubt, consult your boss, organization's attorney, or the RCFP legal hotline, 1-800-336-4243. If you get in legal trouble and need some financial help, contact SPJ and submit a request for Legal Defense Fund help.