in the United States
Noted with pleasure: new
Sources, events or documents:
Academic conference papers related to
At the World Congress of the International
Political Science Assocation (IPSA) in Madrid, 8-12 July 2012, a number
of papers were presented on areas relating to open government. Links will
be provided shortly.
Investigative, journalistic story on
Robertson, Jordan, "When Your Criminal
Past Isn't Yours," Associated Press, 16 Dec. 2011, from web. Argues
that many states that publish court data cannot oblige commercial background
check agents to incorporate updates and corrections, thereby tainting job
applicants falsely with the criminal records of others who may share part
of their names. When criminal convcitions are erased from public records
after a specified period, they may remain in commerical databases indefinitely.
Background checks are now conducted by nearly all employers, up from about
half in 1990. Software bots that scour the internet for data are
now the nrom, lacking human judgment in data matching. Recognizing
these problems, some states have returned to releasing only individual
records rather then selling streams of data.
Owing to pressure of work, there is a gap in the
log here, during the period 1 Sep. 2010-15 Dec. 2011. (The author became
chair of the combined history and Political Science departments, then chair
of the division of History, Politics and Psychology.) Sorry. I will
try to backfill it later.
FOIA and Privacy Act Workshop, September 20-22, 2010 at the Sofitel hotel
in downtown Chicago, Illinois. ASAP training events for freedom of
information and privacy officers are laid on by the association of access
annual Northeast Conference on Public Administration (NECoPA), hosted by
the School of Public Affairs and Administration at Rutgers University-Newark
on October 22 and 23rd, 2010. The conference theme is "Public Service
Comedy video, just discovered with pleasure:
Security Secrecy debate (Oct. 2001) by Even Stvphen on Comedy Central
Academic anthology, Transparency:
Suzanne. 2010. Transparency and Secrecy: A Reader Linking Literature
and Contemporary Debate. Lanham, MD: Lexington Books. ISBNs,
paperback: 0-7391-2752-7 / 978-0-7391-2752-0. Table
Academic journal article, defamation
"Gaining access to government
information is a perpetual concern of citizens. This is due in large part
to the relationship between transparency and the issues of ethics, corruption,
administrative malfeasance, and accountability. The last few years have
proven that governmental transparency is a burgeoning academic subfield
spurred on by contemporary political events and attention generated by
the popular press. This reader addresses the topics of governmental transparency
and secrecy and includes original discussion, classic readings, and primary
source documents. Transparency and Secrecy is organized according to a
theoretical model fully developed in the introduction. Governmental transparency
is the degree to which access to government information is available through
various channels. These avenues of access to information include governments
proactively releasing information, freedom-of-information type requests,
open meetings, and whistleblowing and leaks. The reader addresses each
of these components as well as values that compete with openness such as
privacy, security, and efficiency.
discussion sections begin with the presentation of cases to make the material
relevant to students. The cases together with the review of the literature
help readers understand how each aspect of transparency is relevant to
contemporary public policy debates. The discussion sections include a brief
summary of the included articles and place these readings within the scholarship
at large. Integrative study questions, suggested class projects, recommendations
for case studies, movies, and supplemental reading all make Transparency
and Secrecy ideal for classroom adoption."
Amy Kristin Sanders. 2010.
"Defining Defamation: Community in the Age of the Internet." Communication
Law and Policy, 15(3) June 2010: 231 - 264.
Academic journal article, sanctions
in state sunshine laws:
Abstract: The ability to
instantly communicate with a global audience has created numerous legal
uncertainties as jurists struggle to adapt age-old jurisprudence to modern-day
technologies —and defamation jurisprudence is no exception. The definition
of a plaintiff's community is critical to his or her ability to succeed
in a defamation lawsuit, often determining whether the plaintiff is a public
figure or whether the plaintiff's reputation has been injured in his or
her community. This article examines federal and state defamation jurisprudence
to compare the factors courts have used to define community in both traditional
print and broadcast cases with the factors used in more recent Internet
defamation cases. It then suggests three possible rubrics courts could
employ to more uniformly define community in Internet defamation cases.
Stewart, Daxton R. "Chip". 2010.
"Let the Sunshine In, or Else: An Examination of the 'Teeth' of State and
Federal Open Meetings and Open Records Laws." Communication
Law & Policy 15(3):265 – 310, June 2010
Academic journal article, FOI compliance:
Public access laws are at
the heart of transparent democracy, in place to ensure that government
meetings and records are open to the public. However, compliance with these
laws is often problematic, a fact that can be attributed, in part, to ineffective
remedies available for violations of state and federal open government
laws. This study examines the enforcement provisions of the public access
laws in jurisdictions across the United States to explore the remedies
available, including equitable relief such as injunctions and mandamus,
actual and punitive damages, attorneys' fees, and civil and criminal sanctions.
Structural difficulties were revealed that can make these remedies toothless
for people unlawfully denied access. The article concludes by suggesting
improvements such as enhanced and uniform penalties, more consistent enforcement,
and alternatives to litigation.
Cuillier, David. 2010. "Honey
v. Vinegar: Testing Compliance-Gaining Theories in the Context of Freedom
of Information Laws." Communication
Law & Policy 15(3):203 - 229, June 2010
Policy, limiting media access to military:
Freedom of information laws
are useful to the extent that they are followed. This study, based on compliance-gaining
theories, employs two field experiments to examine the effect of persuasion
tactics and litigation threats on agency adherence to public records laws.
In Study 1, a journalist requested use-of-force reports from all police
agencies in a state, mailing agencies either friendly or threatening letters,
randomly assigned. In Study 2, a journalist requested superintendent contracts
from school districts, mailing agencies randomly assigned versions of friendly,
neutral or threatening letters. In both experiments the threatening letter
resulted in slightly higher response rates, lower copy fees and faster
response times, however, the friendly letter resulted in more helpful behavior
from agencies. The article concludes by discussing implications for journalists,
compliance-gaining theory in a legal realm, and freedom of information.
Secretary of Defense Robert Gates issued
new guidance on
2 July 2010 and gave an 8
July press briefing, seeking to reduce the inaccuracies or lack of
context in military personnel's discussions with journalists. DOD
staff are asked to clear statements with Public Affairs staff before speaking
on matters with "national or international implications." The press
briefing was featured on the national media. The Gates memo also
declared, "Leaking of classified information is against the law, cannot
be tolerated, and will, when proven, lead to the prosecution of those found
to be engaged in such activity."
Charges filed, leak of classified material:
On July 5, Pfc.
Bradley E. Manning was charged with the unauthorized transfer and disclosure
of classified records, including the classified video of a 2007 Apache
helicopter attack in Baghdad, posted online in April 2010 by WikiLeaks.
(Wikileaks has been accused of indiscriminate publication via online servers
that are beyond jurisdictions.)
Shamai Leibowitz, former FBI contract
linguist, has become the third person in 30 years to be convicted under
the espionage act for leaking information to the media. Uniquely, he seems
to have offered little defense. Access Reports 36(11), (26 May 2010).
Law review article on executive privilege:
Lane, Eric, Frederick A.O. Schwartz
and Emily Berman. 2010. "Too Big a Canon in the President's
Arsenal: Another Look at United States v Nixon." George Mason
Law Review, 17(3), spring 2010. Available by search at: Fas.org/blog/secrecy.
ODNI's 2009 review of intelligence reform:
See also summary and commentary
in Access Reports 36(11): 1-3, (26 May 2010); and in Aftergood,
Steven, 2010. "Does
Candor Require Secrecy? A Critical Review (FAS.org). The "candid advice"
rationale for executive privilege to withhold testimony and documents from
Congress and the Courts did not apply to criminal evidence in US v Nixon
(1974) but was recognized generally in that Supreme Court opinion.
It had previously been advanced only by the Eisenhower administration in
v US (1958) (based loosely on "human nature") and by the Nixon administration
in EPA v Mink (1973). Congress had accepted this in 1966 with
the FOIA's exemption (b)(5) for internal deliberative material. In
re sealed case: Espy (1997) the Supreme Court extended this rationale
to presidential advisors and to the common law deliberative process government-wide.
The authors argue Congress should limit the privilege for Congressional
testimony via guidelines, with recourse to the Courts in specified circumstances
by majority vote of one chamber -- basing this on the constitutional power
of investigation and the checks and balances.
"Reforming Intelligence" [large pdf]
Magazine article on DNI's role:
Josh Gerstein, "Panel
found 'distracted' DNI," Politico, 2 June 2010, summarizes report
of President's Intelligence Advisory Board on the role of the Director
of National Intelligence.
Official review of security classification,
Department of Energy, "Classification Policy Study," 4 July 1992.
official policy on unclassified defense
policy since the Reagan administration's
NSDD 189, has required open data of unclassified, scientific defense research,
reiterated in the Obama administration. "The Department of Defense
fully supports free scientific exchanges and dissemination of research
results to the maximum extent possible," wrote Under
Secretary of Defense Ashton B. Carter in a May 24, 2010 memo (pdf)
to the military service secretaries, first reported by Inside
Etzioni, Amitai. 2010.
Transparency the Best Disinfectant?" Journal of Political Philosophy,
is a highly regarded value, a precept used for ideological purposes, and
a subject of academic study. The following critical analysis attempt to
show that transparency is overvalued. Moreover, its ideological usages
cannot be justified, because a social science analysis shows that transparency
cannot fulfill the functions its advocates assign to it, although it can
play a limited role in their service. We shall see that in assessing transparency,
one must take into account a continuum composed of the order of disutility
and the level of information costs. The higher the score on both variables,
the less useful transparency is. Moreover, these scores need to be particularly
high to greatly limit the extent to which the public can rely on transparency
for most purposes."
Hoffman, Daniel. 1981.
Secrecy and the Founding Fathers: A Study in Constitutional Controls
(Contributions in Legal Studies). Greenwood Press. 0313221669. Old source,
recently rediscovered; with extensive historical research, found Founders
were as adept at executive secrecy (focusing on the Jay Treaty Struggle,
the XYZ Affair and the 1798 Sedition Act) as calling for openness.
Schoenfeld, Daniel. 2010.
Secrets: National Security, the Media, and the Rule of Law (by the
former editor of Commentary magazine.) Conservative polemic, sparked
by his editorial call for prosecution of New York Times journalists
under espionage laws for reporting details of the National Security Agency’s
warrantless wiretapping activity within the U.S. Data include calls for
secrecy in the Continental congresses, and espionage laws in the early
republic and in 1917.
ASAP Spring Training session for basic
FOIA issues and privacy, 21-23 June at the Washington Convention Center.
Costs $300 per day for members, and up. See www.AccessPro.org
FOIA Community Conference: "Transparency in the Obama Administration: A
First-Year Assessment," Washington, D.C., January 20, 2010
Amendment Center's "12th National FOI Day Conference," 8:30 a.m. to 12:30
p.m., Washington, D.C., March 15, 2010
CGS's "Third Annual Freedom of Information
Day Celebration," Washington, D.C., March 16, 2010
Academic Conference: "The State of the State Secrets Privilege," Washington,
D.C., November 18, 2009
Open Government: An Assessment of the Obama Administration's First-Year
Progress" Jan. 28, 2010, Featuring moderator Gary D. Bass of OMB Watch
and panelists Norm Eisen, Ethics coordinator, the White House; Sarah Cohen,
Duke University; Ellen Miller, Sunlight Foundation; Mark Tapscott, the
Washington Examiner; and Meredith Fuchs, National Security Archive
Oct 19 – 20 2009, Suffolk University,
Boston, MA. 5th International Conference on e-Government.
The International Conference on e-Government (ICEG
2009) for researchers and practitioners from around the world.
Cohen, fomer database editor of the Washington Post, has become
Knight Professor of Journalism and Public Policy at Duke University.
She is interested in open source databases in open government.
New sources online:
Scott A. Hodes, Attorney at Law, FOIA
blog and a web site.
Hodes is an information law attorney and former DOJ official.
Watch, which litigates for official documents (including the
White House visitor logs), includes this in its mission
statement: "Through its Open Records Project, Judicial Watch also provides
training and legal services to other conservatives concerning how to effectively
use the Freedom of Information Act and other open records laws to achieve
conservative goals of accountability and openness in government."
National Security Archive updates are
Official anti-terroism memo:
Clarke's memo to national security adviser Condi Rice, about Al Qaida,
on 25 Jan. 2001 - on NSA Facebook and on
NSA Web (in more depth)
National Security Archive updates are
now on Twitter
Court opinion on classified information:
Royce Lamberth's opinion in Richard A. Horn v. Franklin Huddle,
Jr., says the parties in that lawsuit need to discuss with their counsel
the classified information they already possess.
Justice Department attorneys
September 2 (pdf), requested a stay of the order pending appeal.
the plaintiffs and respondents opposed the stay.
White House policy:
The Obama administration announced
a new policy to release almost all of the White House visitor logs
at regular intervals, [locally
archived] following pressure from Citizens
for Responsibility and Ethics in Washington (CREW). An editorial
in the New York Times, 8 Sep. '09 welcomed the change (although
it may have overstated it).
Interest group report:
The Secrecy Report Card 2009, [PDF],
has been published by the OpenTheGovernment.org
coalition. Written by Patrice McDermott and Amy Fuller Bennett, the
report compiles indicators ranging from classification activity (down in
2008) to declassification activity (also down) to FOIA processing and assertions
of executive privilege.
Hendler, "How to Keep Secrets: Obama Tries to Get Classification Right"
Journalism Review, September 2, 2009.
older report in hardcopy, rediscovered
online at FAS.org: The Moynihan Commission's Report on Protecting and
Reducing Government Secrecy, 1997. [Index]
Book published and reviewed:
McDermott, Patrice. Who Needs to
Know? The State of Public Access to Federal Government Information.
MD and Washington D.C.: Bernan Press, 2007 and 2008. 292 pp. $19.95, ISBNs
978-1-59888-050-2 and 978-1598883077. Reviewed by Charles McClure
in Government Information Quarterly, in press August 2009.
law requiring release of the Foreign Relations of the US series
of documents within 20 years is still not being complied with.
volume, recently released, is 30 years old, far behind President Kennedy's
goal of 15 years:
"In my view, any official should
have a clear and precise case involving the national interest before seeking
to withhold from publication documents or papers fifteen or more years
old," President Kennedy concluded. See National
Security Action Memorandum No. 91, "Expediting Publication of 'Foreign
Relations'," September 6, 1961.
The FRUS of Soviet relations 1969-76
includes inaccurate transcriptions of Nixon tapes that in some places appear
to reverse their meanings by omitting a "not", or replacing "you" with
"Thieu". See FAS.org and the Nixon
Abu Yahya al-Libi, a rising al Qaeda
field commander in Afghanistan, argues spies like "locusts" have penetrated
successfully among muslims and jihadis, in a new book translated by the
DNI's Open Source Center as "Guidance
on the Ruling of the Muslim Spy" (pdf). The author refers to
research among Koranic verses that refer to spying. Evidently Al
Qaeda has suffered from losses to US missiles on targets spotted by spies.
(It sounds like the beginning of a purge of jihadis.)
Official report on surveillance:
General Unclassified Report 2009 on the President's Surveillance Program
(warrantless wiretapping), required by statute in 2008, found the legal
justifications supplied by John Yoo of the OLC under W. Bush were "deficient",
omitted some legal provisions and were not peer reviewed. AG Gonzales
misled Congress when he denied that there was disagreement within the administration
about the legal justification of surveillance of US citizens. In
fact, some career officials were on the brink of resignation. The
IGs of the DOJ, DOD, CIA and NSA issued the joint unclassified report to
four committees of Congress. [Local
FISA Amendments Act of 2008 Title III, Sec. 301. Authorizes the IGs
of the DOJ, DOD, CIA and NSA to report in both classified and unclassified
forms to the four intelligence and judiciary committees of Congress. [Local]
Interest group report:
McNamara: An Appreciation: National Security Archive Electronic Briefing
Book No. 280. A valuable essay plus organized links, on McNamara's
open re-evaluations of his foreign policy choices. Posted 9 July
Testimony on classified leaks:
FBI Director Robert S. Mueller III told
the Senate Intelligence Committee in "Current
and Projected National Security Threats to the United States" (pdf)
4 Feb. 2008, that in Sep. 2001-Feb. 2008, the Federal Bureau of Investigation
checked 85 reported leaks of classified intelligence information
to the media.
Interest group report:
Report (2009) by OMB Watch on Controlled Unclassified Information,
urges standardization of markings across agencies, plus a 5 year limit
(presently there is no limit on CUI (aka SBU, "Sensitive But Unclassified")
records, unlike materials actually classified. ISOO already has oversight
jurisdiction for CUI.
Congressional oversight letter on covert
House members' Letter 26 June 2009 to CIA director Leon Panetta seeks
to have him clarify that the CIA did mislead the Intelligence committees
about covert operations from 2001.
European Countries Sign First International Convention on Access to Official
Documents [FreedomInfo.org] However, as the map shows, signatories
were limited to the scandinavians and Eastern Europeans, without the major
New US Blog found:
written by Bill Leonard, retired director
of the ISOO: http://www.secgov.info/
United States Government Accountability
Office Report on Rulemaking and Transparency: Federal Rulemaking: Improvements
Needed to Monitoring and Evaluation of Rules Development as Well as to
the Transparency of OMB Regulatory Reviews. GAO-09-205, April
GSA Office of Citizen Services and Communications'
Intergovernmental Solutions Newsletter issue on Transparency
and Open Government. [pdf]
Jun 11 – 13 2009, Washington, D.C. Fifth
Transatlantic Dialogue on “The Future of Governance”. Hosted
by the European Group of Public Administration (EGPA) and the American
Society for Public Administration (ASPA), addresses the public/private
boundary. Issues include: How can we foster transparency and accountability?
What are the implications of new technologies and systems? What possibilities
are offered by emerging forms of collaboration? http://www.aspanet.org/scriptcontent/pdfs/5TAD.pdf
Jun 5 – 6 2009, Minneapolis, Minnesota,
National Freedom of Information Coalition’s 2009 FOI Summit. Annual
gathering of state freedom of information groups and access advocates,
with panels on FOI topics. www.nfoic.org
of US Executive Order 13392: "Improving Agency Disclosure of Information"
issued by President George "W." Bush, 14 December 2005
Harry Hammitt commented at the time
(Access reports, 31(24), 14 Dec. 2005:1-3) that the Order took the
FOIA community by surprise; it seemed derived from the reinventing government
strategy of the Clinton administration; was limited to practices already
being implemented; and may have been intended to pre-empt the stronger
provisions of the three Cornyn-Leahy OPEN Government bills in the
US Senate. The order did not reverse the Ashcroft memo that had encouraged
use of exemptions to withhold records under the FOIA. He suspected
that the multiple references to working within existing resources would
leave the order with little practical effect.
of Executive Order 13292, "Classified National Security Information", signed
by President George W. Bush, March 25, 2003.
"We are launching a review of current
policies by all of those agencies responsible for the classification of
documents to determine where reforms are possible," announced President
Obama in a major speech
at the National Archives, 21 May 2009., that was carried live on the
TV networks (before a scheduled, critical speech by former Vice President
Richard Cheney at the American Enterprise Institute). President Obama said,
Interest group report on torture:
"I ran for President promising transparency,
and I meant what I said. That is why, whenever possible, we will make information
available to the American people so that they can make informed judgments
and hold us accountable. But I have never argued – and never will – that
our most sensitive national security matters should be an open book."
"I will never abandon – and I will
vigorously defend – the necessity of classification to defend our troops
at war; to protect sources and methods; and to safeguard confidential actions
that keep the American people safe. And so, whenever we cannot release
certain information to the public for valid national security reasons,
I will insist that there is oversight of my actions – by Congress or by
[A review of the use of the state
secrets privilege was "nearing completion."]
"On all of these matters related
to the disclosure of sensitive information, I wish I could say that there
is a simple formula. But there is not. These are tough calls involving
competing concerns, and they require a surgical approach."
"But the common thread that runs
through all of my decisions is simple: we will safeguard what we must to
protect the American people, but we will also ensure the accountability
and oversight that is the hallmark of our constitutional system. I will
never hide the truth because it is uncomfortable. I will deal with Congress
and the courts as co-equal branches of government. I will tell the American
people what I know and don't know, and when I release something publicly
or keep something secret, I will tell you why."
Journalism in the Public interest, offers this comparison of the OLC memos
on enhanced interrogation techniques with the Red Cross report of the detainees'
ICRC debriefings. The ICRC report tends to indicate more use of these
"torture" techniques than do the memos.
A number of Obama administration memos,
news conferences and speeches were issued in early May, 2009, reversing
the thrust of some of Obama's campaign policy statements on transparency:
The photos of detainee abuses in
military prisons across Afghanistan and Iraq will now not be
released under the FOIA suit brought by the ACLU. The rationale is
that the military command has strenuously objected that these would inflame
opposition to the US in islamic countries in the middle east. Secondly,
President Obama argued that there has already been an investigation and
actions have been taken.
of Obama speech, 13 May, from AP: "In Reversal, Obama Seeks to Block Abuse
Zeleny and Thom Shanker, "Obama Moves to Bar Release of Detainee Abuse
Photos," New York Times, May 14, 2009
Wilson, "Obama Shifts on Abuse Photos" Releasing Images of Detainee Mistreatment
Would Endanger U.S. Troops, President Says," Washington Post, Thursday,
May 14, 2009.
PDF of fax sent from USDOJ to notify court and ACLU of the gov't action.
Hornick, "Obama reverses course on alleged prison abuse photos," CNN.com,
13 May 2009
"Obama Administration Reverses Promise To Release Torture Photos: Decision
Betrays Commitment To Transparency And The Rule Of Law," ACLU.org (5/13/2009)
More information about the ACLU's 2003
FOIA lawsuit, which has resulted in the release of more than 100,000 government
documents to date, can be found online at: www.aclu.org/torturefoia
Mar 15 – 21 2009: Sunshine Week 2009.
The American Society of Newspaper Editors
sponsored the annual Sunshine Week, at www.sunshineweek.org or contact
Debra Gersh Hernandez: firstname.lastname@example.org.
Tuesday, Feb 3, 2009: Declassifying
Secrets: Opening Classified Records for Public Disclosure? Washington,
D.C.. Neil Carmichael discussed the declassification process at the
National Archives, past executive orders, present initiatives, and the
future of declassification in the executive branch. For more information,
visit: http://www.archives.gov/dc-metro/events/february.html or contact:
Monday, Feb 2, 2009: Policy and Press
Conference to Launch the International Budget Partnership's Open Budget
Index 2008, The National Press Club, Washington, D.C.. The International
Budget Partnership will release the Open Budget Index 2008, the only independent
measure of government budget transparency across 85 countries. The Index
evaluates the quantity of information made available to the public during
the course of the budget year so that the people can see how their government
is collecting and spending public funds. For more information, visit www.openbudgetindex.org
or contact email@example.com, firstname.lastname@example.org, or email@example.com.
Watch.org: A new project is assembled quickly (using open source
software) to list (by state) the projects for infrastructure spending from
the US Conference of Mayors' web site, and invite viewers to vote for or
against each project. (However, the comments about politics in the
discussion wiki are crude, and the projects are not actually included in
the 2009 economic stimulus bill.)
Tuesday, Jan 27, 2009: Lecture on the
Freedom of Information Act. Washington, D.C.. Ramona
Branch Oliver discussed provisions of the Freedom of Information Act and
how the statutes affect public access to both archival and operational
records at the National Archives. For more information, visit: http://www.archives.gov/dc-metro/events/january.html
or contact: KYR@nara.gov.
Academic journal articles:
journal on freedom of information, Vol 5, No 1 (2009), Table of Contents
Dr. Jeremy Lewis is now a member
of the editorial board of Open Government Journal.
Cuillier, David. 2008. "Access attitudes:
A social learning approach to examining community engagement and support
for press access to government records." Journalism & Mass Communication
Quarterly, 85(3), 549-576.
Piotrowski, Suzanne, and Gregg Van Ryzin.
2007. "Citizen attitudes toward transparency in local government."
American Review of Public Administration.
Executive Orders and memos on transparency
from new Obama administration:
Executive Order, on Presidential Records, revoking W. Bush order 13233,
signed by President Obama, 21 Jan. 2009. The EO from president
W. Bush had severely limited access by the public to presidential records.
Executive Order, on Ethics commitments, signed by President Obama, 21 Jan.
memo to Heads of departments on administration of the FOIA,
White House press office, 21 Jan. '09 [PDF,
Obama's Inaugural Address: video and transcript. [Local
J. Gillman, "Obama overturns Bush order on access to White House records",
Morning News, January 22, 2009
Security Archive, "President Obama embraces openness on day one ..." 21
Nicholas and Christi Parsons, "President Obama swiftly sets course on Day
One", Los Angeles Times, January 22, 2009
Sherman, "Obama limits ex-presidents' discretion on records", Associated
Press, January 21, 2009
Yen, "Advocates praise Obama move on gov't disclosure", Associated Press,
January 21, 2009
Influential proposals in late 2008,
from open government interest groups:
Security Archive, "Obama administration can act quickly to restore openness",
press release, 12 Nov. 2008
Security Archive, "FOIA Transition Recommendation"
Security Archive, "PRA Transition Recommendation"
Security Archive, "Classification Transition Recommendation"
Watch, "21st Century Right to Know Recommendations" [Large PDF]
in Government Initiative Report
Layton, "Group Seeks Web-Savvy, More Open Government", Washington Post,
reveals emails of Gov. Palin (R-AK), claims she bypasses AK FOI law
via personal email account, 17 Sep. 2008.
"Circa midnight Tuesday the 16th of
September (EST) activists loosely affiliated with the group 'anonymous'
gained access to U.S. Republican Party Vice-presidential candidate Sarah
Palin's Yahoo email account firstname.lastname@example.org and passed information
to Wikileaks. Governor Palin has come under criticism for using private
email accounts to conduct government business and in the process avoid
House 9 Sep. '08 passed Overclassification bill, to have National Archivist
develop procedures and incentives to prevent excessive classification
Secrecy Report Card, 9 Sep. '08 from OpenTheGovernment.org
for invoking state secrets privilege -- FAS.org. "Practical Guidelines
for Invoking the State Secrets Privilege," U.S. Army Memorandum for File,
April 24, 2001, obtained via JamesMadisonProject.org under the FOIA.
(Marginal notes are redacted under examption (b)(5), which protects the
deliberative process.) [Archive,
Center issues Declaration on Transparency, 5 Aug. '08, in Atlanta --
" The Atlanta Declaration and Plan of
Action, serving as a framework for advancing this human right, finds that
access to information is fundamental to dignity, equity and peace with
justice, and that a lack of access to information disproportionately affects
the poor, women and other vulnerable and marginalized societies.
The Declaration calls on all states and intergovernmental organizations
to enact legislation and instruments for the exercise, full implementation
and effective enforcement of this right. It further encourages all stakeholders
to take concrete steps to establish, develop, protect and promote the right
of access to information."
Sen. Patrick Leahy's statement from
Congressional Record, on the 42nd anniversary of the FOIA: http://www.fas.org/sgp/congress/2008/foia42.html
Martin J. Sherwin and Lee White, "Democracy
Requires a Past", Chronicle of Higher Education, 11 June 2008 (requires
subscription). "The Bush administration does not appear to believe
that our way of life depends on access to our history ..."
OBAMA INTRODUCES NEW TRANSPARENCY LEGISLATION:
On June 3, 2008, Sen. Barack Obama introduced
a bill to expand public access to information about government spending.
"The Strengthening Transparency and Accountability in Federal Spending
Act of 2008," was crafted with Sen. Tom Coburn (R-OK). Other co-sponsors
are Sens. John McCain, and Tom Carper (D-DE). The new bill would
strengthen previous efforts by Senators Obama and Coburn to provide public
access to federal grant and contract information through the USASpending.gov
web site, requiring all federal contracts and the bidding process to be
published online. The provisions of the bill were outlined in a joint
press release on June 3. http://www.fas.org/sgp/news/2008/06/obama-coburn.html
"People from every State in this great Nation sent us to Congress to defend
their rights and stand up for their interests," Sen. Obama said in a prepared
floor statement. "To do that we have to tear down the barriers that separate
citizens from the democratic process and to shine a brighter light on the
inner workings of Washington. This bill helps to shine that light." http://www.fas.org/sgp/congress/2008/s3077.html
Event: "FOI Live 2008" international
transparency conference, London, was held, June 3, 2008.
What Happened: Inside the Bush White
House and Washington's Culture of Deception, by Scott McClellan (Hardcover
- May 28, 2008). Memoir, highly critical of the Bush administration's
control of information, by the former Press Secretary, has received strong
publicity and surprised several former members of the White House press
corps as well as Dan Bartlett, communications director. McClellan
was seen as a loyal foot soldier until this book was previewed. McClellan
appeared on the usual televised discussion programs promoting the book.
The CIA is preparing to send its oldest
files of historical worth to the National Archives. http://www.fas.org/sgp/othergov/intel/nara-cia.pdf
Sen. John Cornyn (R-TX) introduced (April
2008) a new bill to increase transparency in government agency expenditures,
to provide online public tracking of legislative earmarks, and to require
the IRS to provide taxpayers with statements of total taxes paid and projected.
"When I am president, the era of Bush/Cheney
secrecy will be over," said Sen. Hillary Clinton in a speech to the Newspaper
Association of America on April 15. "I will empower the federal government
to operate from a presumption of openness, not secrecy... I will direct
my administration to prevent needless classification of information that
ought to be shared with the public." http://www.fas.org/sgp/news/2008/04/clinton041508.html
Week Webcast, Wednesday March 19, 2008, at the National Press Club.
"First Annual Freedom of Information Day Celebration," Monday March 17,
2008, 9:00-4:00, at the Washington College of Law. Luncheon speaker: Hon.
Royce C. Lamberth, U.S. District Judge for the District of Columbia and
former Chief Judge of the Foreign Intelligence Surveillance Court.
Amendment Center/Freedom Forum's "National FOI Day Conference," Friday
March 14, 2008, at the Newseum.
The venerable litigation book,
Under the Federal Open Government Laws," 2008 edition has been
published by EPIC and Access Reports. The previous volumes
have been the handbook for US public records requesters for a quarter century.
The new edition includes discussion of the 2007 OPEN government amendments,
and can be purchased for $67 including shipping.
"The next president should open up
the Bush administration's record," by Steven Aftergood, FAS, Nieman
Watchdog, 7 Feb. '08
"By now no one expects the Bush Administration
to make itself accountable for its controversial and possibly illegal practices.
But the next President will have a unique opportunity to reveal what has
been kept hidden for the last seven years. Secrecy watchdog Steven Aftergood
suggests a few questions for the presidential candidates about their willingness
to disclose just what the current Administration has done."
State Secrets privilege (protection
from introducing classified information in court cases)
the film:The personal story behind
the 1953 Supreme Court ruling that established the state secrets privilege
is explored, with other issues of government secrecy, in the new film
"Secrecy" by Peter Galison and Robb Moss. The film was well received
at the Sundance Film Festival, "The question of how much we should rely
on methods inconsistent with our values is intelligently and elegantly
Los Angeles Times film reviewer, Kenneth Turan.
the bill: Senator Kennedy introduced
Secrets Protection Act (S. 2533) on January 22, '08. "The
Act clarifies that the courts, not the executive branch, must review the
evidence and determine whether information is covered by the state secrets
privilege." "For example, a court may limit a party's access to hearings,
court filings, and affidavits, or require counsel to have appropriate security
clearances." Press release from Senator Kennedy's office to the FAS.
At a House Judiciary Subcommittee hearing
today, witnesses discussed the feasibility and advisability of legislating
reforms to the state secrets privilege. The
prepared statements from the 29 Jan. '08 hearing
Last week, Senators Kennedy, Specter
and Leahy introduced "The State Secrets Protection Act." The
CIA's destruction of videotapes of
interrogations of alleged terrorist detainees
Several media channels have reported
the CIA's admission that it destroyed videotapes of interrogations, and
that the new Attorney General Michael Mukasey has begun an investigation.
Since several lawsuits seeking records about detainees are in process,
this might involve illegalities. White House counsel Fred Fielding
directed that records about the destruction be preserved. See AR
34 (4); 9 Jan. '08, 1
Community Document Review System
(Citizens for Responsibility and Ethics
in Washington) has established a documents collection that is searchable
by individual pages, each with its own URL, thereby facilitating sharing.
Called the Open Community Document
Review System, it contains many public records received via FOIA requests.
For description, see AR 34 (4); 9 Jan. '08, 9.
Herbert N. Foerstel's book appears
on Amazon.com and the Greenwood Press website:
Herbert N. Foerstel, Freedom
of Information and the Right to Know: The Origins and Applications of the
Freedom of Information Act. CT: Greenwood Press, (Hardcover, print
on demand) prices $77-84, ISBN 0-313-28546-2
OPEN Government act of 2007
A good legislative history and commentary
on the provisions is provided by Harry Hammitt in AR 34 (4); 9 Jan.
Two brief notes are found at http://www.accessreports.com/news.html
"January 1, 2008, Bush Signs FOIA Amendments.
President George W. Bush signed into law the OPEN Government Act Dec. 31,
marking the first time the FOIA has been amended in ten years. The new
amendments restore the attorney's fees eligibility criteria that existed
before the Supreme Court's Buckhannon ruling and prohibit agencies from
collecting fees if they do not respond to a request within the statutory
20-day time limit. The amendments also provide a tracking system for requests
and codify the positions of Chief FOIA Officer and FOIA Public Liaisons
that first appeared in the Bush executive order issued in December 2005.
The amendments create an ombudsman, designed to resolve disputes short
of litigation, at the National Archives and clarify the status of media
requesters. Finally, the amendments direct OPM to study how to encourage
federal employees to choose FOIA as a career path by creating greater incentives
"December 19, 2007, Congress Passes
FOIA Amendments, The House passed a revised set of FOIA amendments Dec.
18 shortly after the Senate had acted as well. Although the House passed
its set of amendments in March and the Senate passed a compromise bill
in August, House "pay-as-you-go" rules required that body to revise the
Senate bill to provide alternative funding for two provisions -- the potential
increase in attorney's fees due to rejection of the Supreme Court's Buckhannon
decision as the threshold standard for awarding fees, and to replace the
loss of fees agencies would no longer be able to charge if they did not
respond within the 20-day statutory time limit. The amendments passed the
Senate by unanimous consent and the House by a voice vote. It seems likely
that President Bush will sign the legislation or allow the bill to become
law by failing to sign or veto it before the upcoming congressional recess."
Legislative history summary, from
"Several bills were considered during
the 110th Congress prior to enactment of the 2007 FOIA Amendments. One,
H.R. 1309, was passed by the House on March 14. Another, S. 849, was passed
by the Senate on August 3. It was reintroduced in revised form as S. 2427
on December 4 and then was modified and introduced on December 14 as S.
2488 -- which was passed by the Senate on that same day and then was passed
by the House on December 18. This bill was signed into law on the last
possible day before it would have become law automatically under Art. I,
Sec. 7 of the Constitution, on December 31, 2007."
Conference on the 2007 FOIA Amendments, Collaboration on Government Secrecy
("CGS"), American University Washington College of Law, January 16, 2008,
Government Act, text, National Security Archive, PDF [Local,
Bush Signs FOIA Reform Bill", by Wade-Hahn Chan, FCW.com, Federal
Computer Week, 2 Jan. 2008
FOIA face-lift: Proponents call it the first major FOIA reform bill in
a decade," By
Adam Chandler, FWC.com, August 13, 2007
AP report on content of Act, widely reprinted, in USA Today.
President Bush Signs S. 2488, the
OPEN government act of 2007, into Law, http://www.fas.org/sgp/news/2007/12/wh123107.html
"The White House, President
George W. Bush
CONGRESS APPROVES FOIA REFORM BILL
- from FAS.org, Secrecy News newsletter by Steve Aftergood, 20 Dec.
For Immediate Release
Office of the Press Secretary
December 31, 2007
President Bush Signs S. 2488
On Monday, December 31, 2007, the President
signed into law: S. 2488, the "Openness Promotes Effectiveness in our National
Government Act of 2007," which amends the Freedom of Information Act (FOIA)
by: (1) establishing a definition of "a representative of the news media;"
(2) directing that required attorney fees be paid from an agency's own
appropriation rather than from the Judgment Fund; (3) prohibiting an agency
from assessing certain fees if it fails to comply with FOIA deadlines;
and (4) establishing an Office of Government Information Services in the
National Archives and Records Administration to review agency compliance
The OPEN Government Act, which cleared
both the Senate and the House over the past week, "becomes the first major
reform to the Freedom of Information Act in more than a decade," said Senator
Patrick Leahy (D-VT), the bill's leading co-sponsor in the Senate along
with Sen. John Cornyn (R-TX). Rep. William Lacy Clay (D-MO), Rep.
Tom Davis (R-VA) and Rep. Henry Waxman (D-CA) led passage in the House.
Among other things, Senator Leahy explained,
"This legislation will improve transparency in the Federal Government's
FOIA process by: restoring meaningful deadlines for agency action under
FOIA; imposing real consequences on Federal agencies for missing FOIA's
20-day statutory deadline; clarifying that FOIA applies to government records
held by outside private contractors; establishing a FOIA hotline
for all Federal agencies; and creating a FOIA Ombudsman to provide FOIA
requestors and Federal agencies with a meaningful alternative to costly
Documents on Secrecy and Security, 2007, indexed at FAS.org
Presidential Control of Information:
"A Tighter Ship at Justice: Michael Mukasey limits political contacts."
Post, Saturday, December 29, 2007; A18. In contrast to his predecessor,
new Attorney General sharply limits the number of DOJ staff who can discuss
cases with WHS -- except for counter-terrorism cases. http://www.washingtonpost.com/wp-dyn/content/article/
"Open Government: President Bush's signature
would strengthen the Freedom of Information Act." Editorial, Washington
Post, Friday, December 28, 2007; p.A20, http://www.washingtonpost.com/wp-dyn/content
"Information Con Game," Editorial,
The New York Times, December 22, 2007, http://www.nytimes.com/2007/12/22/opinion/22sat3.html
action to pass the Senate version of the OPEN government act, from
the Congressional Record:
of Sen. Leahy on Passage of the OPEN Govt Act, December
18 (via FAS.org)
Approves the Open Government Act of 2007, December
18 (via FAS.org)
Approves Amended Open Government Act, December
14 (via FAS.org)
Approves Federal Employee Protection of Disclosures Act, December
17 (via FAS.org)
Privacy and music file sharing:
article in NY Times about University of Oregon rebuffing RIAA demands
for ID of students using file-sharing of music files. Discusses widespread
LIPTAK, "In the Fight Over Piracy, a Rare Stand for Privacy," December
31, 2007. http://www.nytimes.com/2007/12/31/us/31bar.html
NASA survey of pilots shows near
misses are more common than reported, according to records released
under FOIA, reported on CNN, 31 Jan. 2007.
"NASA boss promises to reveal safety
poll results. Reversing course, NASA's administrator promised
Congress on Wednesday he will publicly disclose results of an unprecedented
federal aviation survey which found that aircraft near collisions, runway
interference and other safety problems occur far more often than previously
recognized." -- MSNBC, 31 Jan. '07. http://www.msnbc.msn.com/id/21561639/from/ET/