Freedom (or not?) of information: FOIA at 46 - Sunlight Foundation Reporting Group

Freedom (or not?) of information: FOIA at 46 - Sunlight Foundation Reporting Group

Uncle Sam wasn't the only one celebrating his birthday on July 4, the National Security Archive reminds us in a great post today: For journalists, citizen activists and anybody else who cares about knowing just what the government is up to, those fireworks also marked the 46th birthday of the Freedom of Information Act, signed into law on July 4, 1966 by a grudging President Lyndon Baines Johnson...

Justice Department's New FOIA Regulations: Still Worse than Reported

From the Sunlight Foundation:

John Wonderlich
Nov. 18, 2011, 3:53 p.m.

Since the last time we wrote about the DOJ's newly proposed FOIA regulations, as part of signing on to EPIC's comments on the proposed rule, not a whole lot has changed.

The DOJ sent a letter to respond to Congressional concerns about their lying about the existence of records. The letter hardly paints a clear picture, but basically says that the DOJ will withdraw a section of the proposed regulations, but that their conduct won't change, and that they'll continue to mislead requesters about whether records exist or not.

Unmentioned in the letter, however, are all the steps backward on FOIA that the DOJ is proposing in their rules. In a package completely at odds with President Obama and Attorney General Holder's public FOIA rhetoric, the new DOJ rules throw up new roadblocks and hurdles to requesters, and generally make it easier to deny requests. One has to wonder what possible motivation DOJ has for forcing elementary schools to pay for FOIA requests, where they used to qualify for fee waivers. Have elementary school students' FOI requests become a burden?

And:

In just one example, the new regulations change this:

Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

...to this:

Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

The difference is minor, but important. The new regulations permit records to be disposed of as long as they haven't been affirmatively "identified as responsive." Ill-intentioned FOIA officers would face a new choice when confronted with an inconvenient request: attempt to identify new records, or perhaps just destroy them, in order to avoid identifying any responsive records.

A similar pattern repeats itself throughout the proposed rules. Requesters "must" address requests to the appropriate department. Insufficient requester detail becomes grounds for dismissing a request. News stories can no longer be used to justify the urgency of a request. Businesses are no longer required to affirmatively justify the withholding of trade secrets. Media requester status is bestowed based on the "intended use" and must be re-established for each request.

For more go here.

National Sunshine Week

This week is Sunshine Week across the nation. Bet you didn't know there were transparency laws in other places.  Not in Montgomery County, though as we see from the letters secretlyl flying between Shirley Brandman, Pat O'Neill, and Ike Leggett.  Too bad!

What is Sunshine Week?


Sunshine Week is a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know.

Sunshine Week as a national effort is spearheaded by the American Society of News Editors. The key funder has been the John S. and James L. Knight Foundation, with significant support from ASNE Foundation. In 2011, The Gridiron Club and Foundation contributed $10,000.

Though created by journalists, Sunshine Week is about the public's right to know what its government is doing, and why.

Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.

Sunshine Week is a nonpartisan, non-profit initiative.

How can you join the celebration?
Send a Maryland Public Information Act (MPIA) Request to MCPS and the County Executive's Office. Ask to see all the information regarding the lease of the Brickyard school property.  Or, choose your own topic!  Here is a sample letter, taken from the Maryland Attorney General's website.  To read more on MPIA and state law, go here.

How can you join the celebration? Send an MPIA to MCPS. Send an MPIA to the County Executive’s office. Ask to see all the information regarding the lease and backroom deals for the Brickyard school property.  Or, choose your own topic.  Here is the address for the County Executive’s office:


Ms. Donna Bigler
Assistant Director
Montgomery County Office of Public Information
101 Monroe Street, 4th FL
Rockville, Maryland 20850

Or email Ms. Bigler at: donna.bigler@montgomerycountymd.gov

And here is the office for Montgomery County Public Schools:
Mr. Dana Tofig
Montgomery County Public Schools
850 Hungerford Drive
Rockville, MD 20850

Email Mr. Tofig at: pio@mcpsmd.org

And here is a sample letter for you to use.  Text taken from the Attorney General's website, here.

This is a request under the Maryland Public Information Act, State Government Article §§ 10-611-628. I request a copy of all records containing the information pertaining to the following. Please send me all records, including telephone logs, minutes, telephone notes, emails, printouts, letters, memoranda, sent or received or recorded regarding >. This is a request for records, regardless of format, medium, or physical characteristics and including electronic records and information, audiotapes, CDs, videotapes and photographs pursuant to the Maryland Public Information Act, State Government Article §§10-611 to 628.

My request includes any telephone messages, voice mail messages, daily agenda and calendars, information about scheduled meetings and/or discussions, whether in-person or over the telephone, agendas for those meetings and/or discussions, participants included in those meetings and/or discussions, minutes of any such meetings and/or discussions, the topics discussed at those meetings and/or discussions, e-mail regarding meetings and/or discussions, e-mail or facsimiles sent as a result of those meetings and/or discussions and transcripts or notes of any such meetings and/or discussions.

If all or any part of this request is denied, I request that I be provided with a written statement of the grounds for the denial. If you determine that some portions of the requested records are exempt from disclosure, please provide me with the portions that can be disclosed.

I also anticipate that I will want copies of some or all of the records sought. Therefore, please advise me as to the cost, if any, for obtaining a copy of the records and the total cost, if any, for all the records described above. If you have adopted a fee schedule for obtaining copies of records and other rules or regulations implementing the Act, please send me a copy.

I look forward to receiving disclosable records promptly and, in any event, to a decision about all of the requested records within 30 days. Thank you for your cooperation. If you have any questions regarding this request, please telephone me at the above number.

Sincerely,

Isn't it fun to get involved in your government?  Good Luck! Post your answers from the County Government here.  Happy Sunshine Week!

Lawyers called for public information requests in Fairfax Co Public Schools

Red Apple Mom: Highlights from Fairfax County School Board Trial

...Finally, here’s another factoid we learned today.  If you file a Freedom of Information Request (FOIA) with FCPS [Fairfax County Public Schools], you won’t get a reply until FCPS consults with their legal counsel first.  I felt that is worth noting because as we have seen with FCPS’ current discipline policies, FCPS students aren’t lavished the same legal attention.  A student can be questioned without a parent present and bringing an attorney into the situation can make it even worse for the student.  But a FOIA request – now that’s a different story.  We learned today that FOIA requests get the best FCPS legal attention that taxpayer money can buy!

The public's right to know.

Oakton Patch: FCPS, Board to Defend Charges of Violating Open Meetings, FOI Laws

...Daniel Walsch, a spokesman for George Mason University who has worked with FOIA "more than my share of requests over the years," said costs involved "doesn't negate the public's right to know."

Fairfax County School Board and Officials Subpoenaed

Thursday, February 17, 2011 - Fairfax County, Virginia – Documenting violations under the Virginia Freedom of Information Act (FOIA) as continuing to mount, a fourth count has been added to the recent FOIA case against Fairfax County Public Schools and the Fairfax County School Board. The case, filed today in Fairfax County Circuit Court, was temporarily held due to FCPS’ efforts to enter the case in an evidentiary trial rather than a hearing as motioned by the Petitioner.

The David v. Goliath case centers around accountability demanded by the Petitioner, Jill D. Hill, a Fairfax County resident, for an extensive array of Freedom of Information Act and Open Meetings Law violations by FCPS and the School Board.

Patton Boggs, LLP, counsel for Hill, and FCPS attorneys will appear in the Court’s calendar control Friday morning, February 18^th, to set the trial date. Under Virginia law, FOIA cases are required by statute to be heard in seven (7) calendar days. The statute does not permit exceptions for weekends or holidays.

Among those for whom subpoenas were issued in Fairfax County Circuit Court today are school officials:

§  Dean Tistadt;

§  Paul Regnier;

§  Pam Goddard; and

§  Sara Kolb

In addition, the School Board in its entirety were issued subpoenas:

§  Judith Wilson;

§  Jane K. Strauss;

§  Daniel G. Storck;

§  Kathy L. Smith, Chairman;

§  Patricia S. Reed;

§  James L. Raney;

§  Ilryong Moon;

§  Martina Hone;

§  Stuart D. Gibson;

§  Sandra S. Evans;

§  Brad Center, Vice Chairman; and

§  Elizabeth Torpey Bradsher

 Code excerpt with code citation:

For more legal information, please contact plaintiff’s attorney:

            MGuiffre @ PattonBoggs.com

2550 M Street, NW
Washington, DC 20037
T: 202-457-6441  F: 202-457-6315
  

Fact Check: MCPS PIO demands $347.16 to find lease

More numbers plucked out of thin air by Tofig

Information obtained by the Parents' Coalition indicates that a juicy deal has been cut between MCPS and a company that rents MCPS facilities. This is a particularly interesting deal because we have information that strongly suggests that MCPS is helping the outside company avoid payment of taxes by keeping the terms of the leases secret. To get details about the deal, we asked MCPS for copies of the leases and contracts between MCPS and the outside company.

MCPS Director of Public Information (PIO) Dana Tofig is willing to hand over what is almost certainly just a dozen or so pages -- but only if we fork over $347.16 to "search and prepare records for inspection."  As explained in Tofig's letter below, MCPS has determined that it will take about 13 hours to search for the records, and that's without even knowing how many pages of documentation will be produced.

(Since we don't yet have the leases and contracts to confirm the details of the deal, we have redacted the outside company's name from Tofig's response.)

MCPS PIO says to hand over lots of money

In the meantime, we are seriously wondering just what sort of mess the MCPS files are in if it takes 13 hours to find a few leases.

Superintendent Jerry Weast's Contract - Not supplied w/in 30 days

This is a follow up to a previous Parents' Coalition blog post. 

A Maryland Public Information Act request has been made for Superintendent Jerry Weast's contract. Here's the update:

In a telephone call from the MCPS Public Information Office I was informed that Superintendent Jerry Weast's contract will not be supplied in compliance with the Maryland Public Information Act time frame. 

There has been no written response from MCPS to the MPIA request. 

After 11 years, why is our public school Superintendent's contract not available for public inspection?

Here's the text of the Maryland Public Information Act:

Response to Request.

A. If the custodian decides to grant a request for inspection, the custodian shall produce the public record for inspection:

(1) Immediately; or

(2) Within a reasonable time period, not to exceed 30 days after the date of the request, if that period is needed to retrieve the public record and conduct any necessary review.

B. (1) If the custodian decides to deny a request for inspection:

(a) The custodian shall do so within 30 days after the request; and

(b) Immediately notify the applicant of the denial.

(2) If a request is denied, the custodian shall provide the applicant, at the time of the denial or within 10 working days, a written statement that gives:

(a) The reasons for the denial;

(b) The legal authority for the denial; and

(c) Notice of the remedies available for review of the denial.

C. If a requested public record is not in the custody or control of the person to whom application is made, that person shall, within 10 working days after receipt of the request, notify the applicant:

(1) That the person does not have custody or control of the requested public record; and

(2) If the person knows:

(a) The name of the custodian of the public record; and

(b) The location or possible location of the public record.

D. With the consent of the applicant, any time limit imposed by §§A through C of this regulation may be extended for an additional period of up to 30 days.

22 hours to count MCPS Consultants!

How many Consultants do you think were paid to work for MCPS in 2009? 

Well, we don't have the answer. Superintendent Jerry Weast says it would take 22 HOURS of staff time to track all of the MCPS Consultants and their pay from 2009! He will only provide that information if a member of the public pays him $1,324! Anyone want to pay up out of their pocket to find out how much of your tax dollars were spent so that Superintendent Weast could pay Consultants to work for MCPS in 2009? 

Here's a hint as to how much Superintendent Weast spends on consultants: At the June 8, 2010, Board of Education meeting the Board will authorize over $1 MILLION DOLLARS in payments to "CONSULTANTS."

What were the salaries of MCPS staff in 2009? 

Oh, no, you can't have that information either unless you pony up $787! You don't think MCPS has a computer program that can just pop this information out, do you? Goodness, no. It would take Superintendent Weast 20 HOURS of staff time to pull up the list of all MCPS staff and their salaries.

Below is the answer to the Maryland Public Information Act request that revealed these facts.

An April 20, 2010, request to Montgomery County Councilmember and Education Committee Chair Valerie Ervin to make MCPS salary and consultant information available to the public has gone unanswered. Guess this information isn't important to the Council decision making.  


Take a look at the public employee salary information that is available in New York State!

MCPS FOIA Staff and Consultants 2010

Father wins long FOIA fight with school board | InsideNova.com

Father wins long FOIA fight with school board | InsideNova.com

He’s been battling for more than two years. Now Woodbridge resident Mark Hjelm will soon get to see high school visitor lists kept from him by the Prince William County School Board.

During a Wednesday writ of mandamus hearing, Prince William County District Court Judge Wenda Travers ruled the school board must release visitor information from Gar-Field High School, Woodbridge High School and Freedom High School from Dec. 3, 2007 to Dec. 7, 2007.

A writ of mandamus is a court ruling ordering court and government officers to correctly perform mandatory duties correctly...

Half-truths, obfuscations and apparent deceit

Below is a link to an excellent opinion article in the Washington Post about the value of newspaper reporters in keeping public information PUBLIC.
The exact same article could be written about Montgomery County Public Schools where Maryland Public Information Act requests are ignored or can take at least 30 days for a first response.
The MCPS Board of Education and Superintendent Weast are currently billing themselves to Annapolis Senators, Delegates and the Montgomery County Council as "open, transparent, and accountable". However, procurement information is still a mystery for approximately 700 interactive white boards (may be Promethean boards, but who knows).
The existence of a $3.3 million annual payment, 4 year lease for 2,600 Promethean Boards was only made public 60 days after a Maryland Public Information Act request by a parent.
Absent in Montgomery County, as also noted in the Baltimore article, are reporters able to do any in depth investigative reporting.

In Baltimore, no one left to Press the Police

By David Simon

Sunday, March 1, 2009; Page B01

...desk sergeants who believed that they had a right to arrest and detain citizens without reporting it and, of course, homicide detectives and patrolmen who, when it suited them, argued convincingly that to provide the basic details of any incident might lead to the escape of some heinous felon....

...And then I would stand, secretly delighted, as yet another police officer learned not only the fundamentals of Maryland's public information law, but the fact that as custodian of public records, he needed to kick out the face sheet of any incident report and open his arrest log to immediate inspection. There are civil penalties for refusing to do so, the judge would assure him. And as chief judge of the District Court, he would declare, I may well invoke said penalties if you go further down this path.
Delays of even 24 hours? Nope, not acceptable. Requiring written notification from the newspaper? No, the judge would explain. Even ordinary citizens have a right to those reports. And woe to any fool who tried to suggest to His Honor that he would need a 30-day state Public Information Act request for something as basic as a face sheet or an arrest log.

"What do you need the thirty days for?" the judge once asked a police spokesman on speakerphone.

"We may need to redact sensitive information," the spokesman offered.

"You can't redact anything. Do you hear me? Everything in an initial incident report is public. If the report has been filed by the officer, then give it to the reporter tonight or face contempt charges tomorrow."...

Half-truths, obfuscations and apparent deceit -- these are the wages of a world in which newspapers, their staffs eviscerated, no longer battle at the frontiers of public information....

So I tried to explain the Maryland statutes to the shift commander, but so long had it been since a reporter had demanded a public document that he stared at me as if I were an emissary from some lost and utterly alien world.