A federal appeals court decided this week that the White House can keep its e-mail secret if it wants, saying that FOIA does not apply to the Office of Administration (see RCFP summary). Too bad that courts around the country are ruling that e-mails sent by governors are to be made public, but U.S. citizens are prevented from knowing what’s going on in their own White House.

SPJ and other groups have urged in a letter that the president to reverse the Bush position of secrecy and hiding its government business. Let’s see if all the talk of transparency pans out in action.

From a Utah Headliners Chapter press release:

Contact:
Allison Barlow Hess:  801-698-1387 ahess@weber.edu
Con Psarras:   801-575-5505, cpsarras@ksl.com
David Reymann:  801-532-7840; dreymann@parrbrown.com

Court Rules for Television Station in Police Records Case

A Seventh District Court judge has ruled that mug shots of a man and woman booked into the San Juan County Jail are public records under Utah’s open records statute and should have been released when KSL-TV requested the photographs in connection with a news story in 2007.

The ruling by Judge Douglas B. Thomas in the case of KSL TV vs. San Juan County is a clear affirmation of the responsibility of government agencies to carefully weigh requests for information under Utah Government Records Access and Management Act (GRAMA), which favors public access to government records.

“The court’s ruling is a victory for the public’s right to know and for the bedrock principle that the public’s business should be conducted in public,” said David Reymann, the attorney who represented KSL in the case.  “The rights safeguarded by Utah’s open records laws are important, and the court made clear that government agencies need to take them seriously when they receive records requests,” Reymann said.

In his ruling, Judge Thomas held that the San Juan County Sheriff’s Office acted unlawfully in denying KSL’s request for jail booking photographs of a man and a woman convicted of two different crimes against a juvenile victim. The judge said the County’s improper decision to withhold the photographs was possibly influenced by “how that record might be used in the publication of a story.” The judge said the notion that public records would be withheld because an agency may not like the nature of news coverage is “very troubling….to the point that it does, in fact, go to censorship.”

The San Juan County Sheriff’s office was ordered to hand over the jail photos to KSL following the May 8 hearing in Monticello in which the judge delivered an oral ruling.

“It is not KSL’s present intention to publish the photographs, in that the news value of the of the original case has long passed,“ said Con Psarras, KSL Vice President for News. “We pursued this lawsuit as a matter of principle, to defend the right of public access to information regarding crimes in our communities and the activities of law enforcement agencies.  Our decision to challenge the denial of our request was also influenced by a recent and disturbing trend among some police agencies to stall or obstruct disclosure of basic public information ,”  Psarras added.

Judge Thomas ruled, “That for the good and protection of the community the public is entitled to know those individuals who have committed crimes against minors – committed any crimes, but in this particular case especially against a minor.”

San Juan County had argued that the mug shots should be deemed private because public disclosure of the photographs would constitute an “invasion of privacy” of the convicted individuals.  The court rejected this argument, ruling that, “ In this instance, the court cannot find why the publication or release of a record of someone who has been convicted of a crime is a clearly unwarranted invasion of personal privacy.”

The Judge also affirmed the fundamental principle of GRAMA that records are presumed to be public, and that an agency’s categorical classification of records in advance is of little or no relevance once an agency receives a request for a specific record under GRAMA.  He ruled that each request for public records must be weighed individually, neutrally, and with a presumption in favor of access.

“The Utah Chapter of the Society of Professional Journalists commends KSL for its diligence in pursuing this lengthy challenge.  KSL was able use its resources on behalf of all the citizens of the state of Utah,” said Allison Barlow Hess the President of the Utah Chapter of the Society of Professional Journalists. “The judge’s ruling reminds record holders that mug shots are public records and must be made available to anyone who seeks them without any need to justify or clarify their intended use.”

Citing a Utah Supreme Court case involving the classification of public records, Judge Thomas said: “The Court also made it very clear, and I want to make this clear as well, that a tie between the competing interests goes to releasing the record; it does not go to keeping it private.”

The Oklahoma attorney general issued an opinion Thursday saying that work messages sent by public officials on their private electronic devices, such as cell phones, Blackberries and laptops, are public records. The cool thing is in Oklahoma, AG opinions are binding unless overturned by a court.

The opinion evolved after Oklahoma State University refused to provide a college journalism student e-mails and text messages regarding public business. University administrators were skirting the public records law by conducting their business on their personal communication devices, arguing that a public record is only subject to the public records law if it is sent on a government computer. The lame policy earned the university the annual “Black Hole Award” from FOI Oklahoma Inc. in March.

Isn’t it astonishing that supposedly smart people like university officials can come up with such dumb arguments? Kudos to AG Drew Edmondson for putting the university in its place and keeping the public’s business public. Also, congratulations are in order for the college students who fought for these records, and for Joey Senat, co-adviser of the OSU student SPJ chapter, who alerted this issue to FOI/FYI and wrote about this in the December Quill. It takes dedicated students, journalists and professors to keep our leaders honest.

Kudos to the Texas Legislature for adopting a shield law, and the governor for signing it Wednesday.

The law defines journalists as those who gather news in any format, including the Internet, so that’s good for online reporters. However, coverage is limited to those who write “for a substantial portion of the person’s livelihood or for substantial gain.” That’s too bad because that excludes a lot of citizens, bloggers and activists who commit acts of journalism for the good of society, not for the good of their own pocketbooks.

Now, 13 states are left without a shield law. Something to work on. More pressing is a federal shield law, because federal agencies can toss any journalist in jail in any state if he or she does not disclose confidential sources. Contact your U.S. senators and let them know that a federal shield law is needed to keep information flowing for the public good.

I’m amazed at some of the wild excuses public officials come up with to justify secrecy. I’m even more amazed when courts agree with them.

Here is a case in the 5th Circuit Court of Appeals (Texas, Louisiana, Mississippi). Two Alpine (Texas) City Council members were prosecuted under the Texas Open Meetings Act for discussing public matters in secret. The council members sued the state, arguing that the open meeting law violates their First Amendment right to speak (in secret). A panel of the Fifth Circuit court agreed with the officials (Rangra v. Brown).

This is crazy! Courts everywhere are restricting average people’s right to speak out (e.g., prohibiting high school students from holding up silly signs about bongs and Jesus, allowing government officials to censor government employees, etc.). But here a court is saying it’s OK for high-ranking officials to speak in secrecy – allowing the public to be shut out of the political process. Sheesh!

Groups like the Reporters Committee, and others are asking the full Fifth Circuit Court to hear the case and overturn the panel. Let’s hope they do the right thing and overturn this wacky way of letting government hide from public scrutiny.

Everyone seems to be asking the same question: Has Obama’s pledge to open up government actually been put into practice? So far I’ve heard mixed reviews from the FOI community, and Rome wasn’t made more transparent in a day, but it appears movement is afoot. For example, the ability of the media to photograph coffins at Dover Air Force Base (with permission from family members), is a direct effect of the new president.

Here’s another hint. A blogger who focuses on the history of “phone phreaking” (people who spend their time trying to figure out phone systems by dialing lots of numbers – there’s a blog for everything, eh?), says the FBI is making it easier to request records. Phil Lapsley says he’s submitted more than 300 FOIA requests to the FBI over the years. In a posting this week, Lapsley says the FBI will now do a search for records at headquarters and all 56 field offices – at once. Apparently the FBI said the change was a result of the Holder memo (see below). If this is true (and I’m checking with the FBI spokesperson), that’s great news.

Let’s hope we see more actions to back up the president’s words!