This week the Smithsonian Institution formally adopted a FOIA-like policy toward the release of public records (see Reporters Committee item). That’s nice and all, but a policy is not as good as having a law with teeth.

The Smithsonian was established by Congress and gets a huge chunk of its funding from tax dollars, yet, it’s been considered exempt from FOIA, thanks to a 1997 court ruling . So the institution has been relatively secretive about its dealings. The classic example, and one of my favorite wacky denials, was when the National Zoo denied access to medical records regarding a dead giraffe, claiming release of the records would invade animals’ privacy and be a breach of veterinarian-client confidentiality. Pressure to open things up resulted in congressional proposals last year to make the Smithsonian subject to FOIA.

To head off being required to follow FOIA, the Smithsonian adopted a policy that says the organization will release public records unless it isn’t in the best interest of the Smithsonian. The gesture is nice, but the policy is still pretty broad and can be interpreted in different ways. Also, if the institution doesn’t release something then requesters have no legal recourse. The best solution is still to make the organization subject to FOIA. The public’s business is the public’s business.

National Public Radio had a good little story today about White House journalists hoping President Barack Obama will stick to his promises of transparency. It’s a good summary of the hopeful yet skeptical/watching mood among journalists and open government folks right now. To read the transcript or listen, check it out here.

President Barack Obama is off to a good start regarding his public calls for government transparency (see item below on his first-day decree), but I’m still a little cautious in declaring him a friend of public access to government information. So far some of his actions haven’t followed his words. A few examples:

While on the campaign trail Obama was quick to manipulate the media and even lie to journalists. In one incident he told journalists he would be flying to Chicago, so the media piled on a plane and went to Chicago. But Obama stayed in D.C. where he could meet with people in private without the press covering his movements. See previous FOI FYI blog item from June 19 and one on Feb. 4.

More recently, last week The Associated Press, Reuters and Agence France-Presse objected to Obama manipulating what photographic images are made available to the public, according to an AP story. During Obama’s “second” oath of office in the Oval Office, photographers and videographers were prohibited from covering the oath. Instead, an official White House photograph was released. Also, in a press briefing on Guantanamo Bay, reporters were not allowed to use the names of the administration officials giving the briefing, continuing the policy of the Bush administration. Where’s the change?

If Obama is truly determined to change the secretive policies of the Bush administration, he should stick to his pledge and stop the overt manipulation of public opinion through propaganda and restrictive press policies.

Here’s an item from the Reporters Committee for Freedom of the Press that makes me wonder what else is going to come out now that George Bush is out of office.

Apparently a former National Security Agency analyst, Russell Tice, told MSNBC’s Keith Obermann Wednesday night that the Bush administration eavesdropped on emails and phone conversations of U.S. journalists, even though the administration specifically said it did not spy on U.S. citizens.

Read the transcript to this disturbing interview. Unfortunately, this is not unexpected given  previous lies and invasions of U.S. citizens’ privacy and rights. We must continue to question efforts by the government to implement invasive programs in the name of national security actually used to thwart a free press.

President Barack Obama today reversed the Ashcroft memo by instructing federal agencies to err on the side of openness when interpreting the Freedom of Information Act.

This is one of the most important movements in years regarding freedom of information. Soon after 9/11, then Attorney General John Ashcroft issued a memo instructing agencies to err on the side of secrecy, and that he would go to bat for them if they wanted to keep something closed to the public. That memo reversed the general previous policy that records are open unless the government could prove they should be secret by law.

The new policy, ordered by Obama, looks like it will return us to pre-9/11 days, where the assumption is the people have a right to know what their government is up to (within reason).

Here is what the White House press release states, in part:

In the Presidential Memorandum on Transparency and Open Government, and the Presidential Memorandum on the Freedom of Information Act, the President instructs all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government.  To implement these principles and make them concrete, the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive within 120 days directing specific actions to implement the principles in the Memorandum.  And the Memorandum on FOIA instructs the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context.

Finally, the Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents.  This order ends the practice of having others besides the President assert executive privilege for records after an administration ends.  Now, only the President will have that power, limiting its potential for abuse.  And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.

Here is what Obama said in an Associated Press article:

“For a long time now, there’s been too much secrecy in this city,” Obama said.

He said the orders he was issuing Wednesday will not “make government as honest and transparent as it needs to be” nor go as far as he would like.

“But these historic measures do mark the beginning of a new era of openness in our country,” Obama said. “And I will, I hope, do something to make government trustworthy in the eyes of the American people, in the days and weeks, months and years to come.”

Here is what Sen. Patrick Leahy, D-Vt., said: “From the start of his transition to the White House, President Obama has made a clear commitment to open government.  By issuing this order to strengthen the Freedom of Information Act, and ensure the American people have a more transparent government, he is turning the page and moving away from the secrecy of the last administration.  I commend President Obama for recognizing that our government is accountable to the people it represents.”

We don’t know the exact details, as they’ll draft them in the next 120 days, but this is a great sign of good things to come. A new day has arrived in America!

Here is a transcript from this afternoon’s press conference, provided by the White House:

For Immediate Release

January 21, 2009

REMARKS BY THE PRESIDENT

IN WELCOMING SENIOR STAFF AND CABINET SECRETARIES

TO THE WHITE HOUSE

Room 450

Eisenhower Executive Office Building

1:18 P.M. EST

THE PRESIDENT: Hello, everybody. Please be seated. Still getting used to that whole thing. (Laughter.) Please be seated. Thank you so much. I wanted to get everyone together on the first day to welcome you to the White House.

From our vantage point yesterday you couldn’t help but be inspired by the sight of Americans as far as the eye could see. They were there because they believe this is a moment of great change in America, a time for reinvigorating our democracy and remaking our country. They’ve entrusted all of us with a great responsibility. And so today I’d like to talk with you about our responsibility to keep that trust.

In a few minutes I’m going to be issuing some of the first executive orders and directives of my presidency. And these steps are aimed at establishing firm rules of the road for my administration and all who serve in it, and to help restore that faith in government, without which we cannot deliver the changes we were sent here to make — from rebuilding our economy and ensuring that anyone who is willing to work and find a well-paying job, to protecting and defending the United States, and promoting peace and security.

However long we are keepers of the public trust we should never forget that we are here as public servants and public service is a privilege. It’s not about advantaging yourself. It’s not about advancing your friends or your corporate clients. It’s not about advancing an ideological agenda or the special interests of any organization. Public service is, simply and absolutely, about advancing the interests of Americans.

The men and women in this room understand this, and that’s why you’re here. All of you are committed to building a more responsible, more accountable government. And part of what that means is making sure that we’re spending precious tax dollars wisely and cutting costs wherever possible.

During this period of economic emergency, families are tightening their belts, and so should Washington. And that’s why I’m instituting a pay freeze on the salaries of my senior White House staff. Some of the people in this room will be affected by the pay freeze, and I want you to know that I appreciate your willingness to agree to it, recognizing that it’s what’s required of you at this moment. It’s a mark of your commitment to public service.

But the American people deserve more than simply an assurance that those who are coming to Washington will serve their interests. They also deserve to know that there are rules on the books to keep it that way. They deserve a government that is truly of, by, and for the people. As I often said during the campaign, we need to make the White House the people’s house. And we need to close the revolving door that lets lobbyists come into government freely, and lets them use their time in public service as a way to promote their own interests over the interests of the American people when they leave.

So today we are taking a major step towards fulfilling this campaign promise. The executive order on ethics I will sign shortly represents a clean break from business as usual. As of today, lobbyists will be subject to stricter limits than under any other administration in history. If you are a lobbyist entering my administration, you will not be able to work on matters you lobbied on, or in the agencies you lobbied during the previous two years. When you leave government, you will not be able to lobby my administration for as long as I am President. And there will be a ban on gifts by lobbyists to anyone serving in the administration, as well.

Now, the new rules on lobbying alone, no matter how tough, are not enough to fix a broken system in Washington. That’s why I’m also setting new rules that govern not just lobbyists, but all those who have been selected to serve in my administration.

If you are enlisting in government service, you will have to commit in writing to rules limiting your role for two years in matters involving people you used to work with, and barring you from any attempt to influence your former government colleagues for two years after you leave. And you will receive an ethics briefing on what is required of you to make sure that our government is serving the people’s interests, and nobody else’s — a briefing, I’m proud to say, I was the first member of this administration to receive last week.

But the way to make a government responsible is not simply to enlist the services of responsible men and women, or to sign laws that ensure that they never stray. The way to make government responsible is to hold it accountable. And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they’re being made, and whether their interests are being well served.

The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that. For a long time now, there’s been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.

To be sure, issues like personal privacy and national security must be treated with the care they demand. But the mere fact that you have the legal power to keep something secret does not mean you should always use it. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.

I will also hold myself as President to a new standard of openness.

Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.

Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.

Our commitment to openness means more than simply informing the American people about how decisions are made. It means recognizing that government does not have all the answers, and that public officials need to draw on what citizens know. And that’s why, as of today, I’m directing members of my administration to find new ways of tapping the knowledge and experience of ordinary Americans — scientists and civic leaders, educators and entrepreneurs — because the way to solve the problem of our time is — the way to solve the problems of our time, as one nation, is by involving the American people in shaping the policies that affect their lives.

The executive orders and directives I’m issuing today will not by themselves make government as honest and transparent as it needs to be.

And they do not go as far as we need to go towards restoring accountability and fiscal restraint in Washington. But these historic measures do mark the beginning of a new era of openness in our country.

And I will, I hope, do something to make government trustworthy in the eyes of the American people in the days and weeks, months and years to come. That’s a pretty good place to start.

Thank you very much. (Applause.)

(The executive order and directives are signed.) (Applause.)

I guess we are spreading democracy in Iraq – at least antiquated ideas of “fairness” with an added twist of totalitarianism for flavor. According to a story by The Associated Press, the Iraqi government wants to require journalists to sign a code of conduct if they want to cover this month’s provincial elections. The 14-page code requires that reporting be balanced and unbiased, and prohibits the media from falsifying or misrepresenting information.

Journalists who violate the code could be fined thousands of dollars. Also, political coverage will be banned for two days before the election (outright prior restraint). The rules were drafted by a government commission (um, Iraqi commission, not the FCC, just to clarify) that regulates domestic broadcasters. I for one am glad the fairness doctrine was dumped in our country decades ago. Maybe the conditions in Iraq merit this form of censorship, but it doesn’t seem like freedom to me. If the Iraqi government really wants to build trust among its people and the world, it needs to put a little trust in voluntary codes of ethics and the marketplace of ideas. Let journalists do their jobs.

This week SPJ joined an amicus brief in a case where the government wants to keep secret the identities of those long buried in a cemetery at a mental health hospital in Nebraska. A state-owned mental hospital doesn’t want a historical society to have access to people buried on the grounds from 1909 to 1959, claiming they can’t release the records because it would reveal they had mental disorders and violate HIPAA (federal Health Insurance Portability and Accountability Act).

This is a great example of where these well-intentioned laws are stretched beyond their limits to hide information in the name of privacy. First, the people have been dead for at least 50 years, so their privacy interests have long passed. Second, it’s important for people to know the names of people who have died in the custody of our government so we can make sure the system is working. Journalists with access to this kind of information have found awful abuses at mental health hospitals. If this information is kept secret than the government will be able to hide all sorts of abuses, all in the name of protecting privacy. The case will be heard by the Nebraska Supreme Court. See the SPJ press release.

An appeals court ruled Monday that New Jersey Gov. Jon Corzine doesn’t have to release emails with his ex-girlfriend, a former leader of a union negotiating with the state, because the governor needs to be able to communicate in secret to prevent a “chilling effect” in conversations. Check out the ongoing stories about this posted at the New Jersey Foundation for Open Government.

The whole sordid case has reports of payoffs and love and then non-love and maybe some other payoffs we don’t know about. Who knows? It’s all secret. So I guess if the governor was having an affair with a labor leader, while the state was negotiating a major contract with that union, then it would be unfair to expose that? Under that thinking ALL government records that might shed light on potential misdeeds should be kept secret lest they make our officials uncomfortable talking in secret about their potential misdeeds.

All the journalists wanted was a judge to look at the records to see if they could be released, or whether they were truly needing to be kept secret (union negotiation records are often kept hidden for legitimate reasons). But this circuit court deemed otherwise. Let’s see what happens at the New Jersey Supreme Court. Stay tuned!

The Star-Tribune and the Fairbault (Minn.) Daily News report that student journalists are creating an online publication after their paper was shut down by the school superintendent in a censorship dispute. The students’ paper, the Echo, was shuttered when students refused to allow Superintendent Bob Stepaniak to read a story about a middle school teacher who was investigated for inappropriate contact with students. While the district attorney filed no charges, she was placed on administrative leave while the district conducted its own investigation. Stepanian was quoted as saying he wouldn’t let the story be printed with the teacher’s name, even after the students said they would let the district’s lawyer review the story for libel. The students eventually got the story published in the Daily News, showing that there was no libel risk, just a superintendent trying to do damage control.

Kelly Zwagerman, the Echo’s adviser, said she will provide minimal assistance for the online publication.

This episode shows the futility of school administrators’ attempts to censor student publications in the online world. When Hazelwood v. Kuhlmeier came out in 1989, it was too expensive for students to go out and start their own newspaper. But today, an online publication’s costs are minimal, and it puts the publication out of reach of the censors. True, they could block access to school computers, but students could still read it elsewhere.

Stepaniak could learn something about the First Amendment from these students. They obviously understand it better than he does.

Got to hand it to Arizonan public officials to come up with the most innovative ways of misreading public records laws. Now the city of Phoenix (along with some other cities) are making secret the identities of victims and specific identity of some criminals in order to protect them from identity theft, according to a story today in The Arizona Republic.

Personal identifying information such as names of victims, birth dates of criminals and the addresses where crimes are committed will now be kept secret in Phoenix. Criminal suspects will be reported by name, age and race, but no date of birth or address. I’ve heard some agencies are releasing only last names, no first names, to protect criminals from identity theft. In a meeting today with state journalists I heard a ton of complaints about how this is already causing problems. It’s only a matter of time when the wrong John Smith is identified as a serial rapist.

The wacky city attorneys came up with this idea based on a law put on the books a few years ago intended to make government agencies protect their data from thieves getting into files and data held within government computers. The anti-identity-theft law specifically states that it does not apply to records applicable to the public records law. Police acknowledge they know of no criminal who has become a victim of identity theft because of the address or date of birth being released in an incident report. The state public records ombudsman, a former assistant attorney general, says the cities are not applying the law correctly.

I’m always amazed at how some municipal attorneys misunderstand, misread, or outright twist the law against its intent (and in this case the letter of the law). Under the new policy, I guess sex offenders will now be posted online as “John Smith” living somewhere in Phoenix – I’m sure that will make citizens feel safer knowing John is safe from identity theft!