Happy July 4th/FOIA anniversary!

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This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.

FOIA anniversary

Forty-eight years ago today, in 1966, President Lyndon B. Johnson signed the Freedom of Information Act into law with this statement:

"This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.

"At the same time, the welfare of the Nation or the rights of individuals may require that some documents not be made available. As long as threats to peace exist, for example, there must be military secrets. A citizen must be able in confidence to complain to his Government and to provide information, just as he is—and should be—free to confide in the press without fear of reprisal or of being required to reveal or discuss his sources.

"Fairness to individuals also requires that information accumulated in personnel files be protected from disclosure. Officials within Government must be able to communicate with one another fully and frankly without publicity. They cannot operate effectively if required to disclose information prematurely or to make public investigative files and internal instructions that guide them in arriving at their decisions.

"I know that the sponsors of this bill recognize these important interests and intend to provide for both the need of the public for access to information and the need of Government to protect certain categories of information. Both are vital to the welfare of our people. Moreover, this bill in no way impairs the President's power under our Constitution to provide for confidentiality when the national interest so requires. There are some who have expressed concern that the language of this bill will be construed in such a way as to impair Government operations. I do not share this concern.

"I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted.

"I am hopeful that the needs I have mentioned can be served by a constructive approach to the wording and spirit and legislative history of this measure. I am instructing every official in this administration to cooperate to this end and to make information available to the full extent consistent with individual privacy and with the national interest.

"I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded."

The FOIA was the project of John Moss, who introduced the bill as a freshman member of Congress and fought through three successive administrations to get it passed. Via The New Yorker:

If secrecy, as Daniel Patrick Moynihan observed, is best understood as a form of regulation, then the McCarthy era conjured the worst aspects of big government: oligarchic, sprawling, and inimical to individual liberty. The pressures of the Cold War were already transforming government into tiered, hermetic bureaucracies, each distinguished by its own sometimes Byzantine relationship to the idea of “national security.” The emergence of a hypersecretive ethic in national politics coincided with the very public erosion of Fourth Amendment protections—in effect transferring the right to privacy from individuals to government itself.

But, as Moss saw it, national security was an amorphous doctrine, and a corrosive one: meant to suggest the need for strength and expediency, in practice, it abetted incompetence, corruption, and the abuse of authority. “The unfortunate fact,” he remarked, is “that governmental secrecy tends to grow as government itself grows.” And so, in 1954, still in his first term, Moss introduced a bill designed to limit that secrecy.

In reality, Johnson was no big fan of the legislation. The bill was signed without pomp, and the statement, as you can see, is as much about the limits of the FOIA as pulling back the curtain of secrecy. The executive branch has always been wary of the FOIA. In 1974 an overhaul of the law was vetoed by President Gerald Ford, but Congress overrode the veto. And here's a FOIA officer, speaking to the Washington Times last week on background: "Under the Obama administration, I am personally aware of multiple cases [including those in litigation] in which records were sent to the White House simply because they dealt with a politically hot topic. The records did not originate from or even mention the White House.”

LAWSUITS

  • Jason Leopold and Ryan Shapiro sue CIA for records on the agency's alleged spying on Senate Intel Committee
  • Red Cross fights ProPublica FOI request for records on how Hurricane Sandy aid was spent, claims 'trade secret'
  • Judge smacks around Missouri Department of Corrections for goalpost-shifting
  • Federal judge tells IRS lawyers to explain why it never informed Judicial Watch of missing emails

FOIA REFORM

The big news last week: Senate Judiciary Committee leaders introduced a FOIA reform bill. Sens. Leahy and Cornyn's bill would address several FOIA issues that the requestor community has been clamoring for, such as:

  1. Reforming the use the (b)5 "deliberative process" exemption to include a public-interest balancing test and a 25-year limit.
  2. Codifying the Obama administration's directive for agencies to operate under a "presumption of openness."
  3. Reforming the FOIA fee structure.

The National Security Archive's Nate Jones has a more in-depth look at why the b(5) exemption needs to be overhauled and the previous efforts to pass a FOIA reform bill.

Transparency groups are pushing the bill hard. Here's Amy Bennet from OpenTheGovernment.org on why President Obama should embrace the FOIA Improvements Act.

Meanwhile, FOIA Advisory Committee met for the first time last week. According to Fierce Government, " The newly created expanded Freedom of Information Act advisory committee set oversight of the FOIA process, increased proactive disclosure and eliminating fees as their top priorities at a June 24 meeting."

Risen: Some real talk on the James Risen case from the New York Times:

Though the court’s decision looked like a major victory for the government, it has forced the Obama administration to confront a hard choice. Should it demand Mr. Risen’s testimony and be responsible for a reporter’s being sent to jail? Or reverse course and stand down, losing credibility with an intelligence community that has pushed for the aggressive prosecution of leaks?

The dilemma comes at a critical moment for an administration that has struggled to find a balance between aggressively enforcing laws against leaking and demonstrating concern for civil liberties and government transparency. Whatever the Justice Department chooses to do will send a powerful message about how far it is willing to go to protect classified information in the digital age. And journalists and press freedom activists are watching closely for the precedent the decision will most likely set.

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From the Washington City Paper: Donna’s theory of D.C. bathroom art isn’t much of a stretch: “I think D.C. graffiti is more political than elsewhere,” she says. “You won’t find much ‘F the Republicans’ in Detroit.” Gero concurs: “We get a lot about the Freedom of Information Act.”

That picture, by the way, is from the illustrious Looking Glass Lounge in NW DC, courtesy of Nate Jones.

FOIA of the Week

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Oops! That would be an email between two VA officials regarding a request from a Hill staffer for an advanced copy of VA Secretary Shinseki's resignation speech, obtained by NBC News4 reporter Scott MacFarlane.

STATE NEWS

  • Michigan Gov. Dan Snyder signs law exempting gun records from state open records law
  • NYPD reaches $22K settlement for arresting man who was satirizing NYPD
  • Delaware Gov signs FOIA bill package expanding state record laws
  • Illinois transparency advocates urge legislature not to override veto of 'bad' FOI bill

And lastly, an ode to the newspaper adviser

A New Jersey high school newspaper adviser is resigning shortly after a three-month censorship fight, the Student Press Law Center reports.

John Wodnick, who advised the Northern Highlands Regional High School’s student newspaper, The Highland Fling, announced his resignation after guiding the newspaper’s then-editor-in-chief, Adelina Colaku, through a legal battle over a censored article about grievances by faculty against the school superintendent.

“Mr. Wodnick has been an exceptional adviser throughout the past four years,” Colaku told the SPLC. “I remember going into Fling being a very timid girl … He transformed me from this shy person to more of a daring person.”

“I think it’s important for students to understand that they do have a voice and the right to ask questions and to speak up and to contribute to their community in that way,” Wodnick said.

My first foray into journalism was at a weekly student paper in community college. Our newspaper adviser was a former Oregonian reporter named Linda. Linda was short, not really an imposing figure, but she did not tolerate bullshit. One week, the campus police department refused to hand over its incident logs, even though it usually did so without complaint. I imagine they must have had a chuckle at messing with would-be reporters. At least until Linda walked into their office and explained that police logs are public record, and that the department was opening itself up to a lawsuit, which it would lose. The department governed itself accordingly, and the next edition of the paper reported the public safety news at Clackamas Community College.

It meant the world that Linda took us seriously enough to go chew out a bunch of cops, and it obligated us to take ourselves seriously. The next year, the newspaper broke the story that the college president was resigning under pressure. The scoop was picked up by The Oregonian and The Chronicle of Higher Education. The two reporters who broke the story won an Oregon Newspaper Association award.

Here's to Wodnick, Linda, and all the other newspaper advisers out there who go to bat for young reporters and teach them how to hold themselves.

Subscribe to CJ Ciaramella's weekly FOIA newsletter here.

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