Notes from 2004 National Freedom of Information Coalition Convention
The National FOI Coalition held its annual meeting May 21-22 in Newark, N.J. NFOIC is a coalition of First Amendment and open government organizations from more than 30 states working together to protect the public's right to know.
NFOIC: Records
These notes cover sessions at the recent NFOIC annual meeting
related to various types of records: environmental records, court
records, and medical records.
ENVIRONMENTAL RECORDS
This session featured a single speaker rather than a panel. This
was a good decision. Bob Spiegel is an inspirational speaker with
more than enough ideas and information to hold everyone's
attention throughout the assigned time. This was not a technical
legal or journalistic session. Instead it was the first-person
report of a dynamic citizen activist.
Spiegel is one of the founders and presently the director of a
citizens group called "the Edison Wetlands Association"
(EWA). EWA works to promote the cleanup of toxic waste sites in
New Jersey, to conduct public education and related activities.
Spiegel ran the session partly as a workshop. He brought samples
of his FOIA letters and documents he has received, including
aerial photos of one of the major sites he has worked on. He also
brought a copy of the Molly Ivins book "Bushwhacked"
and played an audio tape of Ms. Ivins reading from a chapter in
her book that reports EWA's activities.
The Ivins material and much of the presentation focused on
Spiegel's pursuit of a company called Chemical Insecticide
Corporation, which produced "Agent Orange" and other
toxic materials in New Jersey. The tale starts with his discovery
of "green rabbits" at the production site. This leads
to his prodding the EPA to action, numerous FOIA requests and
other techniques used to obtain information concerning the site
and its owner.
His message is inspirational. When turned down for a document, he
says "No means Yes. When they say no, it just means I
haven't worked hard enough to explain the reasons why they should
release." It is also practical. He discussed issues such as
the effect of property values on residents' willingness to take
action. Regarding FOIA, he stressed that one should file requests
with multiple agencies at the state and federal level ("one
will turn you down, another will give you the document") and
when viewing documents, one should always visit the agency late
in the day, when the official guard tends to drop.
He also stressed working closely with the media. "Government
doesn't like bad press."
--Larry Repeta
COURT RECORDS
Access to court records is increasing in the online age, but it
is a state by state,
court by court proposition. Robert Port of the "New York
Daily News" says the irony is
that the 3d branch of government "is the most open and least
accountable...judges hate
to be observed closely by reporters..." Hence there can be
"guerrilla warfare" between
the media and judiciary. Among the current relatively bright
spots as far as access is
concerned are the federal judiciary (through its PACER system)
and New York State, which is adopting a progressive policy on
public online access via a panel headed by First Amendment
advocate Floyd Abrams.
William Bastone of "thesmokinggun.com" affirmed the
mixed bag on available court records. Bastone's site makes it its
business to obtain interesting court
filings nationwide. He agreed that PACER can be good for federal
filings, as can
places like L.A.'s civil trial courts. Bastone is concerned that
judges and court
officials tend to redact usually available public documents in
high profile cases,
such as happened in several pages of the recent Michael Jackson
indictment.
New Jersey hasn't caught up with other states on electronic
access to court
records, said John Paff of New Jersey Citizens for Justice.
Discussing efforts
to obtain files on attorney discipline in the state, Paff said
the "system in
New Jersey is almost impenetrable." The sole public access
terminal available
in some courts is "not user friendly." The result is a
denial of meaningful
public access to records in many cases.
Online availability of police reports also varies by states,
panelists agreed.
In these days of terrorism scares, some courts are keeping secret
dockets
of terror related cases. Some states may be rethinking access
policies if
there is a perception that too much is getting out
electronically. Barbara
Petersen reported an access cutback in Florida as the state re
studies what
should be available.
The panelists, perhaps a bit optimistic, expressed hope that
within a decade,
market forces and efficient records handling practices would move
access to
court records inexorably in a positive direction. Already,
private firms like
Lexis/Nexis are moving to fill gaps.
--Ted Gest
MEDICAL RECORDS AND HIPAA
Panelists: Ron Czajkowski, vice president, communications and
member services, New Jersey Hospital Association; Charles Davis,
executive director, Freedom of Information Center, University of
Missouri, Columbia; Robert Ellis Smith, attorney and publisher of
Privacy Journal
Moderator: Arlene Turnham, attorney with McGimpsey & Cafferty
This session was a spirited discussion involving a representative
of hospitals, who have struggled to comply with the regulations
while continuing to serve their patients and maintain a good
relationship with the media; a media representative who discussed
the extreme and sometimes ridiculous hardships created for the
media by the new law and regulations; and a privacy proponent who
believes the law has done a lot to protect people's medical
information from being used improperly.
Czajkowski said that the law and even the regulations draw from
the law have been confusing and complicated for hospitals to deal
with and have added a lawyer of bureaucracy in the hospitals .He
said the association came up with guidelines for member hospitals
that give direction on what information can be released and how
the system of patients "opting in" to allowing
information released works. People who take calls from the public
asking about a patient who is in the hospital but hasn't signed a
consent are to be told, "There is no such patient in the
directory." He said hospitals have the ability to release
information without consent if it is determined to be "in
the best interest of the patient." But the patient, who
perhaps is unconscious at the time, must be told immediately of
the decision when that becomes possible. He said media outlets
have turned to other sources, especially prosecutors, to get
information about people injured as part of crimes or accidents.
He concluded that hospital officials and the media have adapted
to the new law.
Davis presented a more critical outlook, saying that the
regulations interfere with the media to inform the public. Among
the examples of where the regulations have caused problems were a
school bus crash involving several victims in which the media and
the families could not find out any information about the names
of the people injured. He said efforts are being made to discuss
possible changes in the regulations with federal officials, but
not much progress has been made.
Smith said the regulations protect people from medical officials
and others from improperly sharing private medical information.
He said one little-known portion of the law allows people to
obtain their own medical records, something that has been
difficult in the past.
--Bill Theobold
NFOIC: Helps for State Groups
These notes cover sessions at the recent NFOIC annual meeting
related to activities of state coalitions: 1. Organizing and
maintaining a state coalition, 2. New Training Materials,
3.Record audits.
HOW TO KEEP GROUPS GOING
Panelists were: Katherine Garner, executive director, Freedom of
Information Foundation of Texas and National Freedom of
Information Coalition; Bob Johnson, executive director of the New
Mexico Foundation for Open Government; Moderator: Hollie
Manheimer, executive director of the Georgia First Amendment
Foundation.
BACKGROUND
Garner explained that the Texas group had its start in 1978
through the Dallas chapter of SPJ and the Dallas Morning News.
She said it now includes a diverse group of organizations,
including the Texas Municipal League, representing city
officials, and the ACLU. The primary focus is educating the
public and public officials on access laws in the state.
Johnson said the New Mexico Group was formed officially in 1990,
after an attempt to put it together foundered for several years.
He took over as its leader when he retired from the AP.
"People used to laugh at us," he said. "They don't
laugh at us now. They're afraid of us."
Manheimer the Georgia group was started in 1994 and she became
the first staffer in 1996.
The panelists and moderator discussed the differing heritages of
their groups, but all said that media involvement was key to
their startups and survival, financially and operationally.
"The work gets done by the journalists," Holly said.
MAKEUP
Some, such as New Mexico, have invited into their groups and on
their board people and groups that might have been opponents. Bob
said, for example, that the president of the Albuquerque Chamber
of Commerce was involved and so was the state's largest utility.
Bob said this collaboration has paid off. He said his group was
able to convince the attorney general to rule illegal so-called
rolling meetings - where public officials try to avoid the open
meetings law by conducting serial meetings in groups that don't
constitute a quorum.
ACTIVITIES
Several groups said they spent much of their time putting on
educational workshops. Georgia publishes guide books about the
state's access laws but works with groups representing government
officials, including the state school boards association, and
convinces those groups to sign off on the books, giving them much
more credibility with officials when a dispute arises. Ian
Marquand from Montana said his group provides a hotline to answer
questions. He said an attorney is paid a $600 a month retainer.
GOVERNANCE
New Mexico has 25 board members, distributed evenly around a
large, lightly populated state. Texas has a 30-member board and
conducts quarterly meetings that are moved around the state.
Neither has designated slots for organizations that are members,
although some organizations have asked to have a board spot
"reserved." The desire, Johnson said, is to have active
board members. Marquand said his board has five institutional
members and three at large and is solely journalism-related.
FUNDRAISING
Both Texas and Georgia do so-called "honoree"
fundraising, where a person is selected to receive an award for
helping promote the values of openness and the banquet is used as
a fundraiser. In Texas, the honoree's friends are solicited to
make donations in honor of that person. Participants discussed
the lack of foundation money available, beyond NFOIC itself.
MEMBERSHIP
Most groups represented don't appear to have members in the legal
sense of being voting members of the corporation. Instead, they
have honorary memberships based on the level of financial support
provided.
--Bill Theobold
New Training Materials Available
If you're looking for resources to help educate the public about
FOI, you'll find a new resource "FOI Interactive" to be
very helpful. The DVD and booklet (non-copyrighted) are designed
for open government groups to lead interactive role plays and
discussions. NFOIC board member Sue Hale produced the training
kit and is effusive about how well it works with all types of
groups from students to citizens to government officials. The
packet includes three scenarios -some fictional, some real - to
show the importance of freedom of information access.
To get a copy, contact the American Society of Newspaper Editors
at 703-453-1122 or Sue Hal at shale@oklahoman.com
-- Barbara Fought
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Record Audits
More than two dozen records audits have been conducted in recent
years - now spurring similar efforts in several foreign
countries. They've also prompted the National Security Archive to
"take on the feds," as NSA's Tom Blanton explained it.
The NSA decided to check on the impact of Attorney General
Ashcroft's'01 policy directive to see if it netted more
restrictions. So it asked 35 agencies for documents about to
policy and training related to the memo. The results: 39% of the
agencies changed their policies on federal FOI.
They also asked each agency for its 10 oldest FOI requests,
finding the oldest unfulfilled request dated back to 1987! NSA
learned that some agencies don't track whether their FOI requests
are answered so Blanton theorizes that the figures the agencies
report about their average response time might be pure fiction.
NSA plans to continue this project by looking at the impact of a
Andy Card 2002 memo, which Blanton believes may have had a more
chilling effect. See:
.http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB84/
Representatives from Maryland, New Jersey and Pennsylvania
explained their audits. Some of their tips included:
-Make sure what you request is public
-Chose documents of great interest to the public
-Chose auditors carefully and train them well
-Be prepared for a long process and give the public official
every opportunity to comply
-Have people available by cell phone for consultation on day of
the audit
-Publish everything - including the auditor's notes on a website
-Make sure your procedure is iron-clad
-Decide what happens if you come away with a great story - does
every participating media share it?
For a current directory to all the audits published so far see: http://foi.missouri.edu/openrecseries/index.html
Charles Davis of the FOI Center at the University of Missouri said he is publishing a tool kit (web and CD) later this year that will include all the resources needed for conducting an audit -- methodology, training, sample forms, etc. It will include links to all published audits and be searchable by topic and record type.
-- Barbara Fought
NFOIC: Secrecy and Terrorism (federal)
These notes cover sessions at the recent NFOIC annual meeting
related to secrecy and terrorism – most at the federal level
.
SECRECY IN THE AGE OF TERRORISM
Cindy Anderson, with US Dept. of Justice, stressed that balance
between openness and secrecy is very important and “we need
to be looking anew at this every day.”
Jonathan Hafetz, NJ media law attorney, argued that the federal
government has gone way out of balance in the Patriot Act Section
215. The provision allows government to compel records from any
person or organization for “an investigation to obtain
foreign intelligence or to prevent clandestine activity.”
Hafetz said unlike other laws, this section doesn’t sets
forth a test such as probable cause or relevance. Further, the
entity that has to surrender records can’t talk about it nor
tell the people whose records the FBI took. It’s unclear
whether the FBI has used this provision yet.
Even if the government isn’t, it’s having a chilling
effect, he says, noting that Muslim groups are reporting a loss
of membership and financial support.
An ACLU attorney in the audience noted a clever way around the
“don’t tell” portion of the law -- some librarians
are now reporting regularly to their boards that they have NOT
been subject to any requests under Sec. 213 from the FBI. So if
they don’t report that standard line at an upcoming meeting
– their silence sends a message!
The DOJ lawyer agreed, upon questioning, that the FOIA policy
under the Ashcroft administration is more restrictive than that
of his predecessor, Reno. In a hopeful sign however, she said of
the more restrictive Patriot Act II proposal: “it
didn’t happen, I don’t think it would have happened,
and I’ve put it behind me.”
She noted that the Homeland Security Administration is drafting
new provisions related to information about first responders and
evacuation plans during a disaster. She assured the group that
the public will have the opportunity to respond to them before
they’re promulgated.
Jennifer Borg, general counsel, North Jersey Media Group, gave
practical examples of how reporters have been stymied in getting:
1) a city’s disaster evacuation plan [turns out the
municipality was protecting an outdated plan with 15 streets that
no longer existed!], 2) access to a bail hearing of a person
connected to the 9/11 hijackers, and 3) Port Authority
transcripts of calls from persons in the World Trade Center to
determine information about rescue attempts/issues.
-- Barbara Fought
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NEW FOI INITIATIVES BEGUN
So if a secrecy culture is growing nationwide, who is working on
making the climate more open? NFOIC conference attendees heard
about three new FOI initiatives.
A new coalition of advocacy groups, Open the Government, has just
launched a website. Rick Blum from “OMB Watch” said the
coalition brings together librarians, journalists, censorship,
environmental and labor groups. Partners listed on the website
total 34. All share some common interests about FOI and will work
more cooperatively together to share resources and speak with a
united voice.
In April the group released a report, “The Ten Most Wanted
Documents for 2004.” based on a informal (non-scientific)
Internet survey of 500 people that showed concern about 9/11
intelligence failures, contaminants in drinking water and
lobbyists’ gifts to Congress members. See:
http://www.openthegovernment.org
Pete Weitzel, formerly on the NFOIC board, is heading a new group
called the Coalition of Journalists for Open Government.
It’s comprised of 25 journalism groups who will work
together on training journalists, educating the public, federal
legislation and litigation. Weitzel noted that the American
Society of News Editors (ASNE) now has attorneys available in
each region of the country to do pro bono cases on open meetings
and records.
Dave Tomlin, asst. general counsel for the Associated Press
reported AP is upping its FOI awareness and asking each bureau
chief to become more involved in state coalitions, records audits
and staff training on FOI. The organization is considering
whether to fund a lobbyist in DC for FOI issues.
--Barbara Fought
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SECRECY IN DETENTION AND IMMIGRATION
Jim Edwards, of “Brandweek” and formerly “NJ Law
Journal,” explained his legal challenge for access to
detention hearings of some of the 700-plus persons rounded up
after 9/11.
He attended one detention hearing at the request of the
defendant, but when the defense attorney mentioned his presence,
the judge kicked him out --over the protests of the attorney. He
lost his case in the federal circuit court but a judge in a
similar case in another circuit ruled opposite. The Supreme Court
declined to settle the difference.
Edwards said the result is that people don’t get to hear the
government’s reasons for deportation – many of which he
believed were legitimate. Also closure means citizens can’t
find out where the system is going wrong. He said the new
post-9/11 rules weren’t necessary because judges have long
had an option to close proceedings for national security.
He noted that a GAO audit showed that the FBI didn’t find
any terrorists among the detainees and their work on detention
cases clogged the system, keeping agents from pursuing
terrorists.
Edwards said several persons deported became suspects in their
home countries. One person suspected of being a risk was deported
to protect the secrecy of the investigation – ironically
secrecy became more important than the investigation!
Parastou Hassouri, an ACLU in New Jersey, explained that before
9/11 immigration hearings were open. Now even family members are
kept out. She said at least 80 men in her neighborhood were
detained. Some reported assaults in jail, cells lighted 24 hours
a day and music blaring all the time. They were allowed one call
to a family member a month and one call a week to an attorney
– too bad if the attorney wasn’t available. Attorneys,
she said, had difficulty even knowing where their clients were
housed because of a communications blackout.
--Barbara Fought
Barbara Croll Fought, Associate Professor of Broadcast Journalism
Newhouse School, Syracuse University
215 University Place, Syracuse, NY 13244-2100
315 443 4054 fax: 315 443 3946
http://web.syr.edu/~bcfought
bcfought@syr.edu