Posts Tagged ‘exemptions’


FOI Daily Dose: Louisiana’s public records victory points to larger abuses of the law

A panel of the 1st Circuit Court of Appeal in Baton Rouge upheld a judge’s ruling that Louisiana State University is not privy to the governor’s office public records exemption, according to The Associated Press.

LSU was using the governor’s “deliberative process” exemption to hide the names of three dozen candidates in its closed-door search for a new president. They hired former University of California-Long Beach President F. King Alexander, who started in June.

The Advocate and The Times-Picayune filed lawsuits seeking names of the other candidates. But LSU board members said keeping the names quiet allowed sitting chancellors and presidents to avoid jeopardizing their current positions.

After district judge Janice Clark ruled in April that the records are public and must be released, LSU requested the 1st Circuit Court review the decision, according to the AP. The court panel on July 19 supported Clark’s ruling.

“This is very good news, and we are thrilled,” Lori Mince, an attorney for The Advocate, told The AP.

But Mike Hasten, capital bureau chief for Gannett Louisiana newspapers, said this victory for open government advocates is only one in a long list of exemption abuses. He published an editorial in The News Star on July 20 explaining the larger problem about how LSU and other agencies are wrongfully using an exemption for the governor’s office to keep sensitive material out of public view.

Governor  Bobby Jindal backed legislation four years ago that removed a blanket exemption for the governor’s office from the public records law and replaced it with a provision called “deliberative process” that exempts “any documents or other types of communication used by the governor to make a decision,” Hasten said.

Rep. Mike Danahay, D-Sulphur, told The Advocate lawmakers never intended the “deliberative process” claim to be used beyond the governor’s office.

The exemption specifically protects materials “relating to the deliberative process of the governor.” It said: “The provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor.”

But even so, agencies using the exemption attribute their decision to a 2004 court ruling from the 1st Circuit Court of Appeal that allowed the Public Service Commission to shield some records from a legislative auditor. The Advocate said this decision had nothing to do with the public records law.

“They’re doing something outside of what it was intended to do, and that needs to be addressed,” Danahay told The Advocate.

Hasten said it’s up to the public to assert the public records law and challenge agencies when they misuse it.

“Because they have not been legally challenged on that and until a court says they can’t do it, they probably will keep doing it in violation of state law,” Hastens wrote for The News Star.

An attorney for LSU told the AP that LSU will return to Clark in state district court for her decision on the damages and attorney fees.

The AP said LSU will get its chance to appeal the decision, but it’s unclear whether they will ask the Louisiana Supreme Court to review the issue.

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.

FOI Daily Dose: More sunshine in Florida, NY shield law saves reporter from testifying

More Sunshine in the Sunshine State

There’s a little more sunshine in the Sunshine State after the 2013 legislative session passed an unusually high number of bills supported by Florida’s First Amendment Foundation (FAF). The FAF announced June 14 that the legislature passed 10 bills they supported, including a bill three years in the making that guarantees citizens the right to speak at government meetings and a transparency bill that requires Florida’s chief financial officer to post agency contacts online.

But the battle for more open government rages on as the legislature also passed 14 bills the FAF opposed and a dozen new exemptions limiting access to public records and open meetings. The running total of exemptions is now “well over 1,000,” according to the FAF.

New York shield law saves reporter from the stand

Thanks to the strong New York shield law, a New York Times freelancer will not be forced to testify about his personal observations involving the arrest of two Occupy Wall Street protesters.

Times freelancer Colin Moynihan wrote a blog post about the Jan. 10 arrest of two protesters who refused to leave Zuccotti Park. When the protesters said they were arrested without warning, city officials subpoenaed Moynihan to determine if the arrest was wrongful, according to the Reporters Committee for Freedom of the Press (RCFP). They claimed Moynihan was an “unbiased” witness, unlike other bystanders who would had an allegiance with either the police or the protesters.

But U.S. District Court Judge Jed S. Rakoff of New York ruled in an 8-page opinion on June 11 that a reporter’s personal observations are protected, like his notes, and a journalist cannot be forced to testify unless there are no alternative sources, according to RCFP.

Rakoff wrote: “Exempting firsthand observations from the scope of the reporter’s privilege would severely chill journalists from engaging in valuable firsthand reporting, such as performed by Moynihan here.”

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.

FOIA compliance summary

Two freedom of information watchdogs, Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org, have released a joint report on compliance with the Freedom of Information Act by 15 major federal agencies, according to a report in the Federal Times. The study compares FOIA compliance data from FY 2008 and FY 2010, the first full fiscal year that President Obama has been in office.

From the introduction to the report:

“The results paint a very mixed picture on the FOIA front, with agencies generally processing more requests more quickly, but also increasing their reliance on the FOIA’s nine exemptions to withhold more information from the public.  Our analysis revealed an even more alarming truth:  the government’s FOIA data is flawed, making it impossible to assess key areas of progress and casting doubt on its overall reliability.”

Below are some highlights. Read the full report here: Measuring Transparency Under the FOIA: The Real Story Behind the Numbers.

  • Exemptions claimed have risen by 33 percent.
  • The Justice Department cited more frequent exemptions; the Department of Treasury had the most significant decline in exemptions.
  • A majority of agencies had made progress in dealing with the backlog of FOIA requests, from 126,200 at the end of FY 2008 to 64,500 at the end of FY 2010.
  • The overall number of requests increased by 11 percent, while compliance with requests has risen 8 percent.

FOI DAILY DOSE: Footage of killings private in Fla., federal FOIA responses mixed

Fla. governor keeps killing footage from public view

Just before the weekend began, Fla. Governor Rick Scott signed a bill that would keep photos and video and audio recordings showing a person getting killed from media outlets and the general public.

The bill, signed on June 2, exempts this information from the mandatory disclosure rules for the state’s open records act. Only particular members of the immediate family and local, state and federal government agencies would be allowed access.

Citizens would still be able to request the recordings, but they would have to prove there is a “good cause” for disclosing the records, in accordance with the exemption guidelines.

The bill could make it more difficult to learn the actual circumstances of a person’s death due to a lack of public access to the photographs and recordings, according to Naples Daily News Editor Phil Lewis.

The Hill shows mixed FOIA request responses at federal level

The Hill submitted FOIA requests more than six months ago asking for FOIA logs for over 70 federal agencies.

Requested information included the names of individuals who requested records, the subject of their requests and any affiliations they had. Many departments honored the request, but there wasn’t a consistent standard upheld by executive branch agencies.

Some logs were handwritten, and most agencies took months to release the information. A few departments, though, provided the information within days of the initial request.

The best-responding federal agencies included the Department of Transportation, the Defense Contract Management Agency and the Office of the U.S. Trade Representative.

The worst departments were the Department of Health and Human Services, Farm Credit Administration and the Office of the Director of National Intelligence.

– 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).

FOI Links: The SEC’s surprise exemption

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