Posts Tagged ‘photos’


Are we out of the woods yet? The FOIA fight with the U.S. Forest Service

Nature-lover or not, almost every child in America can recognize Smokey the Bear, the iconic ursine emblem of the U.S. Forest Service. You’d be hard-pressed to find someone who hasn’t heard of efforts to recycle paper, or to prevent wildfires. When it comes to educational material and campaigning — things the Forest Service wants the public to know — communication is free-flowing. But it isn’t always that easy with the USFS; in fact, they are one of the most secretive agencies environmental reporters will encounter.

The U.S. Forest Service, an agency within the U.S. Department of Agriculture, oversees 193 million acres of forest, grasslands, wetlands, and lakes, including private, public and tribal lands. The agency, led by Chief Tom Tidwell, is organized into 9 regions, each with its own FOIA contact.  The USFS is responsible for preventing and responding to forest fires, managing over 1,000 campgrounds, and conducting research on ecosystems and climate change. It seems like there shouldn’t be a problem requesting documents and data related to these topics; as past SPJ President and current FOI Committee Chairman David Cuillier put it, the USFS doesn’t exactly protect national security secrets. But for some reason, the agency has been shutting the media out, forming a rift between scientists and journalists.

Regional Offices of the US Forest Service, http://www.fs.fed.us/

Regional Offices of the US Forest Service, http://www.fs.fed.us/

The USFS’s recent failure to provide material pivotal in journalist Rhiannon Fionn’s investigation of drinking water contaminants led to the agency being ‘awarded’SPJ’s 2014 Black Hole Award. Fionn told SPJ that she attempted to interview an expert USFS scientist for her story over the course of a year, but was repeatedly redirected to public information officials and eventually told she could only do a scripted interview, which would be reviewed by the Office of Ethics in Washington D.C. Fionn refused, calling the agency’s behavior overt censorship and a threat to the public’s right to know.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

 

 

 

 

 

 

 

 

 

 

 

 

The problem is, Fionn is not the only journalist who has encountered this roadblock. Four years earlier, Society of Environmental Journalists member Christy George shared a similar experience. As George was sitting down to interview a USFS scientist from Oregon, he received a phone call from the head communications official in D.C., ordering him to end the interview. There was never any explanation, George says, even though she had requested the interview days earlier and gotten it pre-approved by his supervisors. Read about her experience here.

Photographers, videographers, and documentarians were further threatened by imprecise wording on a set of rules from 2014 that would require a $1,500 permit for shooting projects on National Forest Wilderness land. Although aimed at commercial companies, journalists and other media groups feared for their First Amendment rights and protested for a specific exclusion. Chief Tidwell sent out a memo to agency leaders reaffirming journalism as a public service and giving the green light for news coverage “including, but not limited to breaking news, b-roll, feature news, news documentaries, long-form pieces, background, blogs, and any other act that could be considered related to news-gathering.” Encouraging, but the real issue is the weak and ineffective media policies that make this kind of miscommunication possible.

The Center for Science and Democracy agreed in their 2015 Government Transparency report , shaming the Department of Agriculture as a whole with C- in media policy, and a D in social media.  The USDA has not updated its general communications policy since 2003, the report says, and falls short of providing access to drafts and revisions, the explicit right of last review, and whistle-blower protection. “‘Loose lips sink ships’ appears to be management’s motivation.” — one anonymous USDA scientist says regarding the agency’s social media policy, which also stifles scientists’ rights to discuss research and hold personal views.

The Center for Science and Democracy's 2015 Report: Grading Government Transparency: Scientists' Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

The Center for Science and Democracy’s 2015 Report: Grading Government Transparency: Scientists’ Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

One doesn’t need to try too hard to find examples of Forest Service’s shortcomings. While the up-to-date budget performance information is explicitly listed right under the agency’s “about” tab, the other reports about regulations and policies were unavailable; the page listed as “under construction” when I attempted to access it earlier this week. As for the USFS FOIA site, it either has not been updated in a while, or all of the “frequently requested reports” are truly from 2008.

By no means does this suggest journalists should give up on requesting information from the Forest Service. But it helps to have some background information on the agency’s track record and to be prepared for common challenges faced in making a FOIA request. Here are some important takeaways from the U.S. Department of Justice’s Freedom of Information report.

– The USDA receives about 20,000 FOIA requests per year, 10 percent of which are for the Forest Service. In 2014, the Forest Service received 1,939 new requests. Of those 1,939 requests, 1,889 were processed. Yet only 825 (45%) were granted the full requested information, 601 (32%) were partially granted, and 248 (13%) were either withdrawn or referred to other agencies or departments.

– Reasons for denials: The most popular denial reason during 2014 was cited as “no records.” The most frequently cited FOIA exemption was Exemption 6, which deals with personal privacy interests. The Forest Service claimed that the information was protected because it dealt with ownership of historic and/or archaeological resources.

– Processing time: The average time to process a simple request is 27 days, whereas more complicated requests take about 50 days. Expedited requests are processed within 30 days (the average being 13 days).  Backlogs are common, the ten oldest outstanding requests are between 2 and 3 years old.

– Resources: From 2010 to 2013, the Forest Service maintained a staff of about 75 full-time FOIA employees. But in 2014, the number of staff  suddenly dropped to 25. Processing requests cost the agency anywhere between $2.5 and $3 million per year from 2010 to 2013, although litigation fees never surpassed $6,000. However, last year, $25,000 was spent on litigation, whereas only $70,000 was spent on processing requests.

– Record Keeping: The USDA adopted a new internal online database in 2011 to keep track of public records requests. This information is used to submit to the Department of Justice for their annual report and to record and determine the status of FOI requests. Anyone can submit a written request for information pertaining to themselves and their individual request.

The USFS FOIA Service Center can be contacted at 14 Independence Ave SW, Mailstop 1143, in Washington D.C., via fax to 202-649-1167, or via email to wo_foia@fs.fed.us.

Do you have a Forest Service experience to share? Tweet @amayrianne or email amayrianne@spj.org. 

http://www.fs.fed.us/

http://www.fs.fed.us/

Connecticut FOI advocate says law after Sandy Hook shootings protecting photos goes too far

ColleenMurphy

Colleen Murphy, executive director of Connecticut’s Freedom of Information Coalition, is on a task force weighing homicide victims’ privacy under the Freedom of Information Act with the public’s right to know.
(Photo provided by Colleen Murphy)

About three months after the December 2012 shooting at Sandy Hook Elementary in Newtown, Conn., left 20 first-graders and six adults dead, filmmaker Michael Moore, writing on the Huffington Post, suggested the gruesome photos from the crime scene be voluntarily released by families to “finish off the NRA” in the gun control debate.

In response, the families posted a petition on Change.org that collected 100,000 signatures urging Connecticut legislators “to pass a law that would keep sensitive information, including photos and audio, about this tragic day private and out of the hands of people who’d like to misuse it for political gain.”

It set into motion what became Senate Bill 1149, a blanket ban state lawmakers passed June 5 barring disclosure of all investigatory photos of homicide victims for one year.

The ban exempts all images and audio records relating to a homicide victim’s condition from public record “to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.”

It  soared through both chambers in a matter of 45 minutes and was swiftly signed into law by Gov. Dannel P. Malloy.

But for Colleen Murphy, executive director of Connecticut’s Freedom of Information Coalition, the decision requires more deliberation—not because homicide photos should litter the Web, but because fast-made, short-sighted changes to the state’s long-standing Freedom of Information Act could give rise to overly broad interpretations and unforeseen consequences.

“We all want to prevent any further pain to people affected by this tragedy, but having that emotional reaction without trying to put other safeguards in place can be risky,” Murphy said.

The law was born behind closed doors in secret meetings among the governor’s staff, legislative leaders and the state’s top prosecutor. It bypassed the traditional public hearing process and was signed into law within 12 hours of the vote.

Along the way, the exemptions in the bill were expanded from Newtown-specific privacy protections to include protections for all homicide victims when the the Black and Puerto Rican Caucus of senators and House members argued that lone victims on city streets should be entitled to the same respect as the Newtown victims and their families.

“There was a desire to protect the families without thinking through all of the consequences for the future,” Murphy said.

Luckily, the law also includes a statute requiring the creation of 17-member task force to watch its applications and make recommendations assessing the “balance between victim privacy under the Freedom of Information Act and the public’s right to know.”

As executive director of the state FOI coalition, Murphy was automatically appointed to the task force, and other members were supposed to be selected by July 1.

But the Newtown city administration missed a deadline to appoint selections to the force, and Murphy said details about the whole process are still murky.

The group is supposed to convene by Aug.1 and meet at least once a month thereafter until December so it can make recommendations to the General Assembly on Jan. 1.

Until it happens, Murphy has been lying low and attempting to advise the FOIC about how to apply the new law.

Before the June ruling, Connecticut’s FOIA already made exemptions for law enforcement records and invasions of privacy.

But Murphy said these law enforcement exceptions largely pertained to information used in ongoing investigations, and since there is no ongoing investigation in the Newtown case, it was unclear whether Newtown photos were already protected— especially since Connecticut’s privacy standards expired when a person died.

The new law extends a dead person’s privacy to his or her family members beyond the grave regardless of an ongoing investigation.

But Murphy said permitting privacy protections for family members opens the door to complaints from friends and other stakeholders who might argue that releasing a homicide victim’s photo infringes their privacy, too.

“The question is: How broad do we get here?” Murphy said. “How much leeway do public officials have if they’re getting requests for a certain record, and whose privacy are they looking at to see if it’s invaded?”

She argued that in the 2004 Supreme Court ruling, National Archives & Records Administration v. Favish, the nebulous phrase “unwarranted invasions of privacy” was used to thwart investigations about the suspicious death of high-ranking White House lawyer Vincent Foster.

When Foster was found dead in 1993 with a gunshot wound in his head and revolver in his right hand, attorney Allan Favish requested access to more than 100 photos of Foster’s body at the scene of his death and during his autopsy.

Foster’s family didn’t want the photos released because two government investigations already ruled Foster’s death was suicide. Even so, Favish thought the government rulings were a cover-up for murder because Foster was involved in the investigation of possible fraud by the Clinton family in the Whitewater real estate venture.

A lengthy legal battle landed the debate in the Supreme Court where the court ruled for the first time that family members of a deceased person have the legal authority to block the release of photos of that person on grounds of an “unwarranted invasion” of family privacy.

Although that case was a major disappointment for public access advocates, Murphy said she’s seen similar language used to block even family members from details about their loved one’s death.

Just last month the Rhode Island attorney general’s office told the sister of man who hanged himself in a state prison that she did not have the right to see a police narrative detailing her brother’s death investigation.

The attorney general justified withholding the information on grounds that releasing the narrative “could reasonably be expected to constitute an unwarranted invasion of (her family’s) personal privacy rights,” even though she—a family member—requested it.

“When you think about that, it gives you a lot of pause about this issue and putting the (‘unwarranted invasion of privacy’) standard in there,” Murphy said. “It’s something I’ll be watching closely.”

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.

Full disclosure: SPJ National president Sonny Albarado and Connecticut chapter president Jodie Mozdzer Gil wrote a letter to Gov. Malloy on May 23 questioning Connecticut lawmakers’ secret deliberation and their decision to restrict access to public records and photos. Albarado and Gil wrote: “We have seen similar efforts in other states to close access to routinely available information about crime and victims of crime in the misplaced belief that secrecy protects victims and witnesses. This legislation does not honor the victims of the Newtown shooting, and the tragedy should not be used as an excuse to close access to public documents, the release of which does not change the circumstances surrounding the Newtown massacre. In fact, their release could debunk conspiracy theories and provide lessons worth learning.”

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