Freedom of Information Act Decisions for 2009
The Department of Justice posts summaries of all FOIA decisions on a monthly basis. Here is the post for April 2009. Here are earlier posts for March, February and January 2009.
The Presumption of Openness
Update May 31, 2009
U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means. The Attorney General identifies three ingredients:
1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.
2. When possible, redact exempt information rather than withhold an entire document.
3. Never assert an exemption merely to hide mistakes or because of abstract concerns.
Here is what the memo actual states:
First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.
Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.
At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
ORIGINAL POST
One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions. A bad law will presume the opposite and instead define what records have to be disclosed.
Washington law has always included the presumption of disclosure. Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure.
Washington law codifies this presumption in two provisions of the Public Records Act:
RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."
RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.
The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure.
Obama trying to force the Brits to keep U.S. "State Secrets"
Not only has President Obama maintained Bush's position on "state secrets" in the U.S. -- claiming a civil lawsuit must be dismissed because the plaintiff's evidence are "state secrets" -- he is now threatening the British Government if they allow U.S. "state secrets" to be used in a civil suit in that country.
Supreme Court Nominee's Open Government Record
Here is a post from Og-Blog on the open government record of Sonia Sotomayor, President Obama's nominee for the Supreme Court.
Sunshine Committee Delays Its Recommendation on the Legislature's Exemption to the Public Records Act ... Again
Update 5/21
Here's a good editorial from the Longview Daily News. Thanks to the Og-Blog for pointing it out.
Original Post 5/15
As noted in this article from the Spokesman Review, the Sunshine Committee voted on Tuesday, May 12 to delay any vote on the Public Records Act "exemption" that makes most records of state legislators exempt from the PRA. The article quotes Ramsey Ramerman, the editor of this blog and member of the Sunshine Committee.
Here are more details from the Washington Policy Blog. And here's a post from the Open Records blog giving the issue some national attention.
The vote was influenced by several factors, including that only 8 of the 13 members were present; and, a concern that some legislative records may have constitutional protections. The matter will be on the Committee's July agenda.
Here are two earlier blog posts on this subject:
Sunshine Committee considers clearing the clouds over the capitol
How the Legislature has exempted itself from the Public Records Act
To index or not to index
As noted in this Crosscut article, the City of Seattle, like many local governments, has opted out of the indexing requirement in the Public Records Act. While the PRA mandates that agencies have an index of their records, it also allows agencies to opt out by issuing a formal order declaring that it would be too burdensome to comply with the indexing requirement.
Indexing records has many advantages for governments and the public. So why do governments opt out? Because for any local government, but particularly a government as large as Seattle, indexing all of the records that are required to be indexed under the PRA is a monumental and costly task.
This does not mean all records go unindexed. The PRA requires governments that opt out to collect and make available any partial indexes that already exist. In Seattle's case, it's also worth noting that the City has staff dedicated to archiving and managing its records.
One way the Archivist could help increase access would be to assist local governments begin the indexing process for existing records and standards to help governments index new records as they are created.
Foster Pepper's Public Disclosure Team Holds Its First Comprehensive Public Records Officer Training and Certification Class
On April 15, Foster Pepper's Public Disclosure Team held its first Comprehensive Public Records Officer Training and Certification Class. There was a sold-out crowd of 80 attendees from cities, counties, PUDs, PDFs, Schools, Ports, Housing Authorities, Parks and even two state agencies. From the evaluations, the class was universally popular, so Foster Pepper is actively planning to put on additional classes in locations throughout the state. Stay tuned for more information.
Here is the course outline. Attendees also received a thumb drive loaded with sample policies, a guide to the 365+ exemptions to the PRA, and a model public records policy in word format.
Session (1) Public Records Act 101
- An overview of the Act
- Clear guidance on the initial response including practical tips for building a working relationship with requesters
- Checklist for gathering responsive records
- Menu of what you can and cannot charge
- Details on e-records issues including metadata
- Tips on how to teach employees about the Public Records Act
- Includes electronic version of the PowerPoint that you can use to train your staff
Session (2) Third party records
- Tips for communicating the PRA requirements to vendors and other third parties
- Sample contract language to protect your agency
Session (3) Personnel Records, step by step
- Step by step process for reviewing personnel records
- Special emphasis on performance reviews and discipline records
- Tips for protecting privacy without hurting transparency
Session (4) Exemptions, exemptions, exemptions
- Review of some of the most common exemptions
- Focus on when they apply AND why they benefit the public
- Provide a roadmap through the 365 plus exemptions
Session (5) A layman’s guide to the Attorney-Client privilege
- Thorough analysis of the rules without legal jargon
- Tips on black and white lines and tips on when to go see the attorney
Session (6) Records retention, creation and indexing
- And overview of the state archivist’s new December 2008 retention guidelines
- Answers to questions about emails, drafts, primary v. secondary copies and other common questions
- Sample policies on email use and producing electronic records
"Open government laws are designed to build public trust"
Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman. It was inspired by George Will's recent statement on ABC's This Week: "The problem with transparency is that it’s transparent for the terrorists as well.”
Update 5/13: Here's the Og-Blog's take on the editorial. As it correctly notes, President Obama's administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout.
