New law exempts SEC from FOIA

A provision by the newly signed financial-reform bill has exempted the Securities and Exchange Commission (SEC) from disclosing information to the public, even under the Freedom of Information Act. According for Fox Business:

The law, signed last week by President Obama, exempts the SEC from disclosing records or information derived from “surveillance, risk assessments, or other regulatory and oversight activities.” Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say. Congress and federal agencies can request information, but the public cannot.

That argument comes despite the President saying that one of the cornerstones of the sweeping new legislation was more transparent financial markets. Indeed, in touting the new law, Obama specifically said it would “increase transparency in financial dealings.”

The SEC cited the new law Tuesday in a FOIA action brought by FOX Business Network. Steven Mintz, founding partner of law firm Mintz & Gold LLC in New York, lamented what he described as “the backroom deal that was cut between Congress and the SEC to keep the SEC’s failures secret. The only losers here are the American public.”

This is by far one of the most startling developments for transparency this year. The SEC is one of America’s largest agencies and now it does not have to disclose public data when citizens make public inquiries. Fox was able to quote three cases exposing SEC wrongdoing by FOIA in 2009 alone, and it’ll be unknown how much vital information will remain missing in the future. This marks a huge step backwards for the transparency movement.

The deliberative process exemption of FOIA

One exemption to the Freedom of Information Act (FOIA) is the deliberative process exemption. Matter relating to the “deliberative processes” of government can be exempt from public records disclosure.

Deliberative processes include opinions or recommendations in the course of making decisions that apply to official government functions (like policy or legislation). To qualify for the privilege, records must be both predecisional (they must precede a final decision) and deliberative (they must be opinions or recommendations). Things like processing forms and paying accounts, purely procedural, administrative processes of an agency, are not part of its deliberative processes.

The privilege is meant to protect the “candid and frank discussions” of government employees and prevents them from being second-guessed constantly by interested outside parties. The privilege is also sometimes claimed to avoid confusing the public about the way a decision was reached.

While the justifications for having the exemption seem justified, it is considered on of the most often abused FOIA exemptions. Government Technology, a magazine on government best practices, saw the exemption in 1996 as “self-serving, [protecting] most of the records which really reveal the process of government, and [...] invoked often as a knee-jerk reaction to a request.”

But that article has more than a problem with the application of the exemption. The justifications for it are on shaky ground:

It is hard to fathom that a competent government employee would be so embarrassed or upset that his or her analytical work was disclosed to the public that it would cause that employee to be less candid in the future. It is difficult to believe that most staff members are so unsure of what they have to say, or so timid about expressing themselves, that public disclosure would force the process of government to grind to a halt.

The author of that article requested a Justice Department report on proposed changes to FOIA, and after several legal battles, he was granted the file. With half of the pages redacted. The reason? Deliberative process exemption. He tried requesting again under the Clinton administration, a more FOIA-friendly organization, and was granted the full report. After reading through it, the author was confused:

When I leafed through the report I wondered why in the world we had wasted so much time litigating over it. The information originally deleted was cut-and-dry legal analysis. This is certainly no criticism of the attorney who prepared it, but it was not a scintillating novel approach to the law. The attorney was not expressing any “candor” or “frank discussion.” It was as routine as one could possibly imagine. No secrets, no nothing.

This anecdotal experience certainly justifies the belief that using deliberative process as ground for an exemption is a knee-jerk reaction when governments get an information request.

When is this exemption justified? I’d love to hear from you about cases you’ve been involved with or have followed where there was a need to keep deliberative, decisional information private. Let me know or join Sunshine Review and WikiFOIA on Twitter this Friday from 2-3 EST at #FOIAchat, our weekly chat on public records and open meetings issues. On Friday, we’ll be talking about the deliberative process exemption specifically, so come share your thoughts or join us to learn more about it.

WI Supreme court to determine if public employees’ personal emails fall under public records law

The Wisconsin Supreme Court will consider on Friday whether personal emails of public employees that are maintained on publicly-owned computers are subject to disclosure under the public records law in Schill v. Wisconsin Rapids School District.

Schill started in April 2007 when private citizen Don Bubolz decided he wanted access to non-work emails of five teachers in Wisconsin Rapids School District during a period in 2007. He requested all emails sent from the computers of those teachers.

The district’s computer use policy allowed its teachers and other employees to use the district’s email for occasional personal use. District employees were advised that the district owns not only the computers, but the email accounts used by the employees.

The Wisconsin Rapids School District concluded that the emails constituted public records because they were maintained on a public computer network. The teachers sought to block the release of their personal emails. The circuit court denied the injunction and ordered the district to release all of the personal and work-related emails.

The Supreme Court will decide whether the personal emails are “records” under the public records law. There is apparently no published case in Wisconsin that addresses whether purely personal emails kept on a public computers constitute public records under the statute.

If the emails are found to fall under the public records law, the Supreme Court will have to decide whether the presumption of disclosure will outweigh the public interest in protecting privacy, a balance that can be hard to strike.

Freedom of Information Act (FOIA): How to use it for your personal benefit

Last Summer and Fall, Sunshine Review had a “Back-to-School” project where we sent FOIA’s to certain school districts in Florida. We requested contracts between the school system and all lobbyists, among other lobbying information.

We encouraged you to get involved. We provided much briefer FOIA instructions and urged you to write or call your superintendent and request the teacher master schedule and the school’s checkbook register. This would give you context for your school’s workings, involve you in your local government, and test the responsiveness of your school district. Basically, the focus was on using FOIA to increase transparency and civic engagement.

The Chicago Tribune offers tips for submitting a Freedom of Information Act (FOIA) request. But unlike the sort of FOIA issues we focus on, this story is about the personal benefits open records laws give to individuals.

The Trib outlines a story where a self-described “geeked-out” records guy submitted information requests to local governments in order to get information to help him find his dream community. He asked:
*school districts for graduation rates, test scores and data on class sizes.
*police departments for crime statistics
*local governments for property tax rates.

When he was done with his public records search, Davis walked through the winning neighborhoods looking for “for sale” signs. He quickly found the house of his dreams. More than a decade later, he still lives there.

Other instances where knowledge of FOIAs can be helpful include a house search, doing battle with a health insurance company, or fighting a parking ticket.

Before you can start requesting, you’ll need to know how. The Trib recommends the following steps for beginning an information request:

1) Call the agency or government and just ask for the records.

If that fails, then move forward on filing a formal request.

2) Identify the agency you want information from and go to its Web site and look for a FOIA link.
3) If you can’t find a link, call the agency and ask where, and to whom, your request should be sent.

Once you have that information and start writing your request, be specific about the type of records you want is important, and write concisely. The author recommends keeping the request to one page: “The more words you put in an FOIA request, the more opportunities a lawyer for the agency has to deny you.” If legal jargon is uncomfortable for you, opt instead for a more casual tone.

If an agency denies your request? Appeal.

The article links to two FOIA letter generators provided by the The Student Press Law Center and The Reporters Committee for Freedom of the Press.

Other useful pages for when you write a FOIA request:
*State sunshine laws: This map will help you find your state’s open records laws
*State Open Meetings Laws:Information on different states’ open meeting laws, a corollary to open records laws.

We always hear that information is power. Even before you have that information, understanding how to get it can give you a new perspective on how to approach questions with confidence and the right tools. Let us know how you have used FOIA to better your life or the state of your community.

How can New Mexico be more transparent?

The New Mexico Independent ran an article in April that compiled several takes on New Mexico’s transparency. It asked: “How can New Mexico be more transparent?” and asked for several takes on an answer. Basically, there’s room for improvement.

One obvious answer, however, to how the state can be more transparent is an overhaul of its open records and open meetings acts.

Bill Turner, a hydrologist and former director of the Middle Rio Grande Conservancy District, noted that disclosing data isn’t the full scope of transparency. He details what are essentially problems with the execution of the state’s open records and open meetings act, the New Mexico Inspection of Public Records Act. He details several problems he and others have had in trying to receive information from New Mexico offices and how these offices, either because of ignorance or purposeful information blocking, have refused to disclose information. “Our state legislators don’t even want webcasts of legislative sessions and committee sessions.”

The execution of the New Mexico Inspection of Public Records Act leaves room for improvement, but so does the law itself. For example, the cap on what a government can charge for a page of a record is $1. Perhaps for people who haven’t FOIA’d records, that sounds reasonable. But consider the fact that in order to have complete records for multiple years, FOIA responses can be hundreds, and thousands, of pages. And there’s the fact that the actual cost of making a copy is closer to 10¢.

A stronger law, with “teeth,” could help remedy the issues Turner has experienced. Illinois was facing similar problems with compliance with its Freedom of Information Act and the situation forced the legislature and Attorney General to come up with a stronger law governments would be compelled to follow. The new law was drafted to include what is in practice a cap on the amount governments can charge for information: if it isn’t “reasonable,” then that counts as noncompliance. Fees for noncompliant governments are up to $5000 . Being someone with experience in sending requests to local governments in Illinois, I can confidently say that these stipulations in the open records law really do work to motivate governments to provide as much information as possible in the most timely manner. The law in effect makes it so that when deciding whether to disclose information, the government must lean towards disclosure.

As Paul Gessing of the Rio Grande Foundation notes in that same article, the current law allows for many, many loopholes for local governments and agencies to forgo disclosing information.

This is being abused. For instance, state agencies cite federal FOIA law exemptions to create exemptions to the New Mexico obligation to produce records. They are two distinct governments. The exemptions and coverage of FOIA are separate from IPRA. The same reasoning would allow a state agency to cite tribal law, or the municipal law of Tupelo, Mississippi, or the internal code of Zimbabwe as they search for some law, somewhere–anywhere–that might give them an out.

And, he notes, it does not cost $1 to make a copy.

For more on New Mexico’s transparency, take a look at some of the wealth of information we have on Sunshine Review:

*New Mexico state government salary
*Evaluation of New Mexico counties website transparency
*Evaluation of New Mexico school district website transparency
*Evaluation of New Mexico state website transparency
*New Mexico government corruption
*New Mexico transparency legislation

NYC 2.0: Public data access hearing to address open data accesibility and usability

The New York City Council is holding a hearing today to establish open data standards. All city agencies will be in attendance.

The hearing is based on a bill, Introduction 029-2010 (formerly Intro. 991-2009), which was drafted in an effort to increase government transparency and facilitate access to public data. More access means more interaction between government and citizens. The bill will require the City to create a centralized online repository of all publicly available information either produced or retained by the City. Data published under this legislation must be posted in a format that will be readable by any computer device, whether that is a laptop or a phone.

One important question that needs to be addressed is how the information will be delivered. Along with information comes the responsibility of delivering it to consumers. If data isn’t usable, then more data can actually be a burden. However, the benefit of this legislation is that citizens get more information, but technology-centered businesses will also have the opportunity to display their goods. Socrata, social data experts, note the legislation has more than good government benefits:

*The bill will unlock city data enabling web developers and entrepreneurs to interact with City government in new ways.
*Data published under this legislation will be readable by any computer device for innovative developments.

The benefits so far are: More access, re-energizing of technology sectors, more government involvement, and ultimately cheaper data. Digital Democracy, a nonprofit based out of New York, will focus its testimony on the benefits open data in real time will have for students. “Young people would be engaged in meaningful ways with the world around them.”

Another testimony comes from the Manhattan Institute, which urges the proactive disclosure of information by governments. They suggest posting responses to the state’s Freedom of Information Act, the New York Freedom of Information Law (FOIL), online so that the requester can have an easy to work with digital response, and other citizens can benefit from the availability of the information requested.

In the spirit of Gov 2.0, the hearing is being livecast. Let us know what your favorite panels are and what ideas you think can benefit your city.

Government sues itself for public records

That is essentially what is happening in Bexar County, Texas. Commissioner Tommy Adkisson has refused to hand over e-mails discussing public information from his personal e-mail account. This is after the Attorney General ruled that he must release the e-mails the San Antonio Express-News who had first submitted the open-record request back in February.

Adkisson says that he is appealing the ruling because he believe the newspaper is penalizing him for being opposed to toll roads.

“I think you’ve crossed the line between where I have some expectation of privacy and where you believe the public interest is,” Adkisson said. “I just believe that it has been one hugely intrusive episode by the Express-News.”

However, the AG has remained consistant the public information remains public even from personal e-mail accounts. If Adkisson wins the appeal, it has the potential to create a large loophole for government officials to avoid records requests.

Taxpayer-funded lobbying associations get perks of government money, commit to none of the responsibility

Taxpayer-funded lobbying associations aren’t government entities. Technically.

But these associations receive money from governments, which get this money from taxpayers (hence “taxpayer-funded”). And all of this is behind closed doors; as far as I know, these organizations do not need to respond to Freedom of Information Act (FOIA) requests (but I’d love to be proven wrong). Of course, there is the lobbying that these organizations do, none of which is made obvious by governments to its citizens. Transparency is necessary here.

Unfortunately, some of those associations are fighting just that. In Illinois, the Illinois Municipal League has been a leading voice in opposing changes to the Illinois FOIA, changes that have strengthened the open records law in attempt to fight the problems the weaker version of the law has led to. (Editorialization: It seems unjust for your money to help fund an effort to decrease your ability to hold government accountable.)

Besides lobbying, taxpayer-funded lobbying associations play other influential roles in government. They can be involved closely in important governmental decisions, again highlighting the need for transparency.

The South Suburban Mayors & Managers Association in Illinois is one example. Trustees of Flossmoor, a city in Illinois, had to approve an amendment to reduce the amount of federal stimulus money allotted to cities by the South Suburban Mayors and Managers Association, to use for resurfacing a stretch of Flossmoor Road. That’s right: an organization with no accountability to taxpayers is alloting American Recovery and Reinvestment Act money. The association went on to request of each of its member towns that received more stimulus money to free up stimulus where possible to free up funds for use by other towns. Perhaps this is a great idea. But the problem is that an association with, again, no accountability to citizens and no need to make their dealings transparent, is behind such significant and influential decisions.

Since the lines between nonprofit and public entity are so blurred, and because the associations often have an intimate role in government, it only makes sense that taxpayer-funded lobbying associations make their activities more public. Or that member governments take the initiative in proactive disclosure. It is, after all, your money.

FOIA and text messages

Perhaps the immediately obvious effect of government transparency is transparency as a tool to battle corruption and to uncover unethical behavior.

Social media, the internet, and technology in general consistently change the scope of public records. So it makes sense that most people don’t consider text messages when using open records laws, since it is a relatively recent technological development.

Of course, many government officials use government-issued phones to fulfill their daily duties. And because of the casual nature of text messages, they can be particularly revealing as to the nature of relationships.

In Illinois, the Daily Herald was able to confirm suspicions that two Elgin police officers were breaking ethics rules by having a romantic relationship. They did this by requesting text messages exchanged between the officers’ phones. Being able to FOIA for those text messages, and the city’s ability to fulfil that request, was crucial to uncovering that scandal.

But not every city is able to provide those records. In Des Plaines, Illinois, the city mayor had to bar text messages between city employees after the city was unable to fulfill a FOIA request asking for text message records. Until the city figures out how to resolve that issue, communication must be in an archivable format. It makes sense for the mayor to take the issue seriously, because when questions of openness aren’t resolved locally, they will be resolved in other ways. In Pennsylvania, the Wind Gap requested text messages from police Chief Craig Armitage and in March of this year, Pennsylvania Office of Open Records has ruled that the borough must get a copy from its cell phone provider of a record with the text messages. Kudos to the Pennsylvania Office of Open Records for making the city accountable to its citizens. The borough originally responded that it did not keep such records. If no such text message record exists, the open records office ruled, the borough is required to provide an affidavit saying that.

There seems to be much that isn’t decided yet on the matter of open government and text messages, and it seems many governments aren’t prepared to make such records available. Please share any experiences or information you have regarding text messages and open records requests.

(I began researching the matter after joining today’s #FOIAchat, a live chat on Twitter every Friday from 2-3 pm EST. I’ve found it to be a thought-provoking, and it’s a great resource for speaking with open government advocates and FOIA experts.)

Challenges to FOIA

When it comes to FOIA, the Freedom of Information Act, we’d like to think that there’s not such thing as “too much.” Which is why its great news to hear that the Federal Reserve must release documents that disclose what banks are seeking help from the banking system.

The Fed had argued making that knowledge public would stigmatize borrowers and thus discourage banks in distress from seeking help. A three-judge panel of the appeals court unanimously rejected that argument, stating FOIA “sets forth no basis for the exemption the Board asks us to read into it.” There’s no part of FOIA that allows information to be withheld in order for a bank to save face.

Senator Bernie Sanders, an Independent from Vermont, stated “This money does not belong to the Federal Reserve. It belongs to the American people, and the American people have a right to know where more than $2 trillion of their money has gone.” A lovely justification for more information.

Another case of open government is in Little Rock, Arkansas, where the state FOIA law is being challenged. Greene County Technical School District is challenging the constitutionality of a FOIA provision that allows public employee evaluation records (which serve the basis for a suspension or termination) to be released. The Attorney General’s office has come out in support of the provision, stating “there is no reason to doubt that the constitutionality of the challenged statute will be fully and completely defended.”

Still, more information is not always justifiable. Recently, the DC Circuit’s Court of Appeals had to restrict the FOIA response of the Defense Contract Management Agency (DCMA), which apparently acted a little too transparently. The exemption was based on protecting trade secrets and privileged commercial or financial information. With FOIA response backlogs becoming an issue of some concern, it may be ok for governments to be strict about what it will not disclose. And FOIA isn’t always the only, nor the best, source of information.

Sunshine Review has information about your state’s FOIA law, and we have also started #FOIAchat Friday on Twitter, every Friday at 2 pm EST. Join the conversation!

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