Archive for the ‘Courtroom access’ Category


Judging the Freedom of Information Act in environmental court

One misstep, one decision, one instant can unleash consequences that last a lifetime. Consider April 20, 2010, when the Deepwater Horizon oil rig explosion created an environmental catastrophe in the Gulf of Mexico, the fallout from which is still making news. While the first reports were made from the coast, the story has now moved into the courtroom.

Headlines scream breaking environmental news when an oil tanker or truck has a major spill, when a factory is found to be releasing toxic chemicals, or when a wildlife trafficker is caught and arrested (remember the man who tried to smuggle parrots in water bottles?) But what happens after the fact is sometimes overlooked. The court cases, the cash settlements, and the criminal punishments are as interesting as the original stories, and the Environment and Natural Resources Division (ENRD) of the Department of Justice makes reporting on them possible.

ENRD handles cases dealing with civil and criminal statutes related to the Clean Air Act, Clean Water Act, Superfund, and other lesser known environmental laws. It also handles conflicts over Native American rights and eminent domain actions to obtain private land for federal ownership. The Division is split into several categories, including Prevention and Cleanup of Pollution, Environmental Challenges to Federal Programs and Activities, Stewardship of Public Lands and Natural Resources, Property Acquisition for Federal Needs, Wildlife Protection, Indian Rights and Claims, and Appellate and Policy Work. The department is split into ten geographic sections nationwide, and is currently managing 7,000 active cases in state and territorial courts.

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I personally love looking into court proceedings and digging into legal issues. But there are a few reasons why it’s not attractive to everyone. For one, it takes an incredible amount of patience. The processing time between an original formal complaint and the final decision (then appeals, sentencing or settlement, etc) is months at best, never-ending at worst. During an ongoing case, lawyers, judges, and witnesses fall silent. And the best cases involving big-name companies will likely be settled in private behind closed doors, where confidentiality agreements and sealed documents are no match for FOIA. Of the nine FOIA exemptions, at least five can be used to block a  request for information that might come out during a court proceeding: including company trade secrets, witness medical records, law enforcement information, and internal agency personnel rules and practices. Finally, few people enjoy reading through the hundreds of pages of legal jargon that may accompany a case file.

One way to skirt this is to visit ENRD’s online press room, where releases include name of offender, prosecuting agency, details of the crime, and final decision and sentencing. In the last month, ENRD has published the outcomes of BP civil claim settlements, as well as environmental crimes committed by a Norwegian shipping company and an order to reduce emissions at a New Mexico power plant.

However, the press releases alone don’t give journalists a chance to dig deeper. It’s better to get your hands on court documents and sometimes, this can even be done without using FOIA. The Department of Justice puts out documents called “proactive disclosures” under subsection (a) 2 of FOIA, which are posted online automatically without any request from the public, and listed in the FOIA library. This includes final opinions, agency policy statements, FOIA request records, and certain administration staff manuals. Proposed consent decrees awaiting public comment are also available through the site and notices published in the Federal Register. Eleven cases are currently open for public comment, including U.S. v. District of Columbia Water and Sewer Authority and U.S. v. Alabama Power Co. Frequently requested records, final opinions and orders, and yearly summaries of litigation accomplishments dating back from 2004, can be found on the Selected Publications site (although no opinions are currently listed).  However, that’s not to say all information is readily available.

FOIA @ ENRD

If you do need to file a FOIA request with ENRD, what can you expect? The Justice department handles upward of 60,000 requests per year, but only 70 to 80 of those fall under the Environmental and Natural Resources category. The small number of requests means processing time is slightly quicker than the average for DOJ requests; about 30 days for simple requests, a year for complex, and 10 days for expedited requests. Only 6 ENRD requests were pending at the end of 2014, despite the division having only two full-time FOIA employees.

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ENRD has traditionally granted 30% of FOIA requests in full, and given partial grants in another 30%; consistent with the DOJ response overall. Only a small portion (generally less than 5 cases) are denied based on exemptions, while most are denied listing the reason as “no records.” Denials made last year were based on exemption 3, citing 5 U.S.C. § 574 and 28 U.S.C. § 651, and withholding information about dispute resolution communications and confidential mediation documents.

To file an ENRD open records request, contact Sarah Lu, FOIARouting.enrd@usdoj.gov.

Decreasing Wildlife Trafficking, Increasing Web Traffic

In the past few years, a joint DOJ task force has been focusing on wildlife trafficking cases, and publishing summaries of the cases in a new online database. I find this particularly interesting, not only because some of these stories can involve off-beat characters (i.e. water-bottle bird man), but because illegal ivory/rhino horn/shark fin trading are big problems in developing countries. And it’s not easy to get a look into the black market. More info about each case can be found in the FOIA library or by a records request, including a case caption or name, civil action number, judicial district, and date or year of filing.

WILDLIFE TRAFFICKING PROSECUTIONS
BLACK MARKET TRADE IN RHINOCEROS HORN ILLEGALLY IMPORTED PROTECTED BLACK CORAL
ILLEGAL IMPORTATION OF SOUTH AFRICAN LEOPARD HIDES AND SKULLS AFRICAN ELEPHANT IVORY SMUGGLING
ILLEGAL IMPORTATION OF ENDANGERED SPECIES NARWWHAL TUSKS AND TEETH
SAFEGUARDING PROTECTED SPECIES

Final note: In addition to the DOJ, there are several other sites that keep searchable court records, although access might require a paid subscription. A few of the most frequently used sites are:.

  • Public Access to Electronic Court Records (PACER) 
    • PACER is a national database for federal cases from U.S. district, appellate, and bankruptcy courts. You can search by party involved, by court locale, or with the case locator tool. Documents are available immediately after being electronically filed. PACER requires its members to register for an account, and may charge up to $3.00 for a document. The downsides are that some personal identification information, like name and address, are removed before the record becomes public, and that there are no pre-2004 criminal case documents.
  • Lexis Nexis
    • Lexis Nexis is another pay-to-use service, but searches also include documents such as newspaper articles and company information related to a specific query. There is a professionals option, which contains documents, dockets, and litigation histories, but users must have a subscription to access. On the other hand, there is Lexis Nexis Academic, which is free, and can search cases by specific citation or parties involved. I’ve usually found this strategy to be hit-or-miss when it comes to how much information is provided, but on the plus side, it’s free.
  • Free Law Online
    • This is an incredibly comprehensive and helpful site put out by the Gallagher Law Library at the University of Washington. It contains a list of databases including laws, bills, court opinions on the federal and state levels (not just Washington state); there are links for each provided by the National Center for State Courts and American Libraries Association. The site also gives suggestions for online law reporters and digests, and publishes a legal research guide for non-lawyers.

How would you judge your Department of Justice or court stories experience? Share your thoughts by contacting amayrianne@gmail.com or tweeting @amayrianne.

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Must read FOI stories – 7/25/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • The Electronic Privacy Information Center has sued the United States Customs and Border Protection to compel the agency to produce documents relating to a relatively new comprehensive intelligence database of people and cargo crossing the U.S. border.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

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FOI Daily Dose: High fees in California and stress over a school survey

Journalists and open government advocates in California are riled up about Gov. Jerry Brown’s budget proposal they fear could limit access to public documents.

California courts already charge $15 for court records searches lasting longer than 10 minutes. Under the new proposal, the courts could charge $10 for every name, file or information that comes back on a search, regardless of the time spent—a small fee some fear will come at a large price if it limits public access.

Initially, opponents such as California Senator Loni Hancock, D-Berkeley, thought the fees would stifle investigative reporting in newsrooms where journalists are already pinching pennies.

According to a Courthouse News Service report, a California Assembly committee rejected the fee increase, and the state Senate committee approved it with the stipulation of an elusive press exemption. But what that exemption looks like is anyone’s guess.

Jim Ewert of the California Newspaper Publishers Association told Courthouse News Service the exemption was added before the hearing on Thursday, and he just found out about it that morning.

“No one involved us in any of those conversations,” he said.

Even with the exemption, Ewert thinks any price for free information is too high, especially when the public is under-educated about government court activities in the first place.

“Number one, we don’t know what the exemption does. Number two, it’s just a bad idea to deny access to records that the public has already paid for, and shield the public from an institution that it already has very little understanding about,” Ewert said.

On a less FOI (but still relevant) note, a high school teacher in Batavia, Ill., faced scrutiny for reminding students about their constitutional rights before administering an allegedly self-incriminating school survey, according to the Daily Herald.

The survey, meant to measure students’ social-emotional well-being, included questions about their drug and alcohol use. When social studies teacher John Dryden noticed his students’ names were printed on their surveys, he told them they had the Fifth Amendment right to avoid incriminating themselves by not answering the questions.

But administrators deemed Dryden’s decision unprofessional because he did not consult authority before he spoke. Sources say the school board met Tuesday to discuss disciplinary actions against Dryden in closed session, but so far the outcome of the meeting (if it even happened) is mum.

Since the survey was administered in mid-April, students and parents who support Dryden have started an online petition yielding more than 4,200 signatures to “Defend and Support” the teacher they say is simply trying to “make his students aware of their rights as citizens.”

And in the heat of the First Amendment issues of late involved the Obama administration, teaching students about their constitutional rights might be more considerate than criminal.

That’s all for now, folks. But as you know, First Amendment issues are all around us, so tell me what’s going on in your neighborhood.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Utah to permit television cameras in court.

Starting in April, criminal and civil trials can be televised in Utah.

The Salt Lake Tribune reports that the Utah Judicial Council voted 9-3 to allow a single television camera in trial-level courtrooms. Since 1997, television cameras have been allowed in the appellate level.

The rule states that videorecording is presumed to be allowed, unless there are specific circumstances why it should not be allowed.

The new rule also allows laptop computers, tablets and smartphones to be used in courtrooms as well. The changes should make Utah courts more transparent.

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FOI Fail of the Week: Ala. judge seals court records in professor’s murder trial

This week’s FOI Fail award goes to Madison County Circuit Judge Alan Mann, who sealed court records in the capital murder case of Amy Bishop. She is charged with killing three employees during her time as a biology professor at the University of Alabama in Huntsville.

Bishop is accused of killing three biology department colleagues during a Feb. 2010 meeting and shooting three other employees. The court seal will keep information about the case from public view.

Mann already issued a gag order in March on both parties involved in the case. He did, however, reject a request from Bishop’s lawyers to keep pretrial court proceedings closed to the public.

The Huntsville Times and WHNT News 19 are both considering potential legal actions that could re-open public access to the sealed court records.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email (mwatkins@spj.org) or connect with her on Twitter (@morganwatkins26).

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FOI Fail of the Week: Unclassified docs kept secret in Drake trial

Classified information is obviously meant to remain secret. But apparently, unclassified documents should stay secret too.

At least, the prosecution in the Thomas Drake whistleblower court case thinks so. And on Thursday, U.S. District Judge Richard Bennett agreed.

Unclassified but “sensitive” information will be withheld from Drake’s trial because, under the National Security Agency Act of 1959, prosecutors can request that classified and unclassified information can be kept secret from the jurors and replaced with other substitutions.

This legal privilege has been used by the government to refuse releasing records under FOIA, but this is the first time it has been used in criminal trials.

Although the court has decided keeping the unclassified information undisclosed in the trial is acceptable and will not affect Drake’s defense, his lawyers argued otherwise in a May 30 response to the prosecution’s request.

The substitutions agreed to by the court will “signal to the jury that the Court and the government believe information in the document was so potentially damaging to national security that it had to be withheld from the public — the very fact they must decide.”

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email (mwatkins@spj.org) or connect with her on Twitter (@morganwatkins26).

 

 

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Senate Judiciary Committee passes cameras in courtroom and FOIA-monitoring bills

Today, most media eyes are on Washington, D.C. following the news (or lack thereof) of a possible deal to prevent a federal government shutdown. But as House Speaker John Boehner and Senate Majority Leader Harry Reid go back and forth in press conferences, there was “meat and potatoes” work being done on the Hill.

The Senate Judiciary Committee met today, referring several bills and judicial nominations to the Senate floor. Among those bills passed were two of particular interest to freedom of information and open government-access watchers.

S410, the Sunshine in the Courtroom Act, passed 12-6. The measure would permit broadcasting, televising and other recording of court proceedings in federal appellate or district courts. However, it’s not a blanket mandate, as written. The bill gives discretion to a presiding judge to authorize such activities. It’s sponsored by Iowa Republican Chuck Grassley. Read the bill text and summary.

S627, sponsored by Vermont Democrat Patrick Leahy, would expedite Freedom of Information Act requests made of federal agencies. Called the Faster FOIA Act, the bill would create a commission to examine processing delays in records requests. The commission would also explore why use of federal government FOIA exemptions in denying records requests increased in fiscal year 2009. Read the bill text and summary.

SPJ and the Freedom of Information Committee will follow the progress of both bills.

– Scott Leadingham

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