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EPIC Alert 16.05 [2009] EPICAlert 5

E P I C A l e r t

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Special Open Government Edition

President Obama, on the first day of office, issued a memorandum for the Heads of Executive Departments and Agencies. He declared that his administration was committed to creating an unprecedented level of openness in Government. Quoting Justice Louis Brandeis, President Obama had declared "sunlight is the best disinfectant." President Obama had further stated "in our democracy, the Freedom of Information Act, which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike."

Ushering in a new era in transparency, President Obama declared that The Freedom of Information Act should be administered with a clear presumption of openness. In response to FOIA requests, President Obama urged agencies to act promptly and in a spirit of cooperation since all "agencies were servants of the public." "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA," President Obama declared. The memorandum exhorted agencies to take affirmative steps to make information public without waiting for specific requests from the public.

The memorandum directs the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. The Director of the Office of Management and Budget was also charged with updating guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.

President Obama issued another memorandum on "Transparency and Open Government". This memorandum stated that Governments should be transparent as it promoted accountability and provided information for citizens about what their Government was doing. Promoting a participatory and collaborative Government, President Obama wanted his the Executive departments and agencies in his administration to offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. The President's Executive orders also included active collaboration that engages citizens in the work of their Government, innovation and public feedback as the bedrock of the new administration.

In a recent memorandum dated March 9, 2009, the President stated that "Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security." He directed political officials not to suppress or alter scientific or technological findings and conclusions and wanted such information developed and used by the Federal Government, to be ordinarily made available to the public. President Obama assigned the Director of the Office of Science and Technology Policy the responsibility for ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes.

Memorandum of January 21, 2009 - Freedom of Information Act: http://edocket.access.gpo.gov/2009/pdf/E9-1773.pdf

Memorandum of January 21, 2009 - Transparency and Open Government: http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf

Memorandum of March 9, 2009 - Scientific Integrity: http://edocket.access.gpo.gov/2009/pdf/E9-5443.pdf

EPIC, in its pursuit of enabling an Open Government, has made frequent use of the Freedom of Information Act to obtain data from the government about surveillance and privacy policy. Public disclosure of obtained information improves government oversight and accountability and keeps the public informed about the activities of the government. EPIC has sued several agencies to seek out information which the public has a right to know.

In January 2008, EPIC filed Virginia FOIA requests with the Virginia Department of State Police for public records that directly relate to alleged federal government involvement with a bill that would exempt Virginia Fusion Intelligence Center from Virginia privacy and government transparency laws. After VSP failed to disclose any public records, EPIC filed a lawsuit challenging VSP's non-compliance with Virginia FOIA. EPIC subsequently won a judgment against the VSP and an award of fees.

On October 31, 2008, a federal judge ordered the Department of Justice to provide for independent judicial inspection of documents relating to the President's warrantless wiretapping program. In EPIC v. DOJ, EPIC, the ACLU, and the National Security Archive are seeking documents authored by government lawyers regarding the President's warrantless wiretapping program. The opinions, prepared by the Office of Legal Counsel, provided the legal basis for the President to wiretap American citizens in the United States without court approval.

EPIC has also filed FOIA requests with the Department of Homeland Security concerning promotion of the E-Verify Program, the Department of Health and Human Services for information obtained through Google Flu Trends, and with the Department of Justice for the final version of the Attorney General Domestic Surveillance Guidelines.

EPIC - Open Government: http://epic.org/open_gov/

Freedom of Information Act Gallery: http://www.epic.org/open_gov/foiagallery/

EPIC's FOIA Litigation Docket: http://epic.org/privacy/litigation/

EPIC v. DOJ Page on the National Security Agency's Warrantless Surveillance Program: http://epic.org/privacy/nsa/foia/

Court Order Requiring Judicial Review of DOJ Documents: http://epic.org/privacy/nsa/foia/103108_order.pdf

EPIC's Complaint Against the Department of Justice: http://www.epic.org/privacy/nsa/complaint_doj.pdf

The Sunshine Week 2009 Survey of State Government Information online found that although many government records were being posted online, most important pieces of information was not made public and some governments were charging twice for access to records. The surveyors used a standardized worksheet and rated each section on whether it was linked from the state department or agency's home page, whether the information and the downloading was free of charge, whether the data was current and when it was last updated, if the site provided summarized statistical information or barebones lists, and if the site provided original, detailed reports.

The major findings of the survey showed that the information least likely to be found online were death certificates, found on the Web sites of only five states, and gas pump overcharge records, available online in eight. Also, schools' building inspections and/or safety ratings were infrequently posted online - only nine states, and school bus inspection reports, was posted online only in 13 states. The data available widely online included statewide school test scores and DOT projects/contracts, online in 50 and 48 states, respectively. Campaign data was found online in 47 of the 50 states; disciplinary actions against medical physicians in 47 states; and financial audits in 44 states. Consumer complaints were available for 24 states.

The survey seemed to indicate that death certificates were a revenue source in many states as they charged relatives and "legitimately" interested parties for copies of the records, or outsourced the work to a third-party service. Additionally, some states provided historical access online to older death certificates although generally a fee was applied for hard copies.

Newspaper and broadcast journalists, journalism students, state press associations, and reporters and editors from The Associated Press conducted the state government surveys. The Committee Co-Chair stated that although many states understood that digitizing public records was key to open government in the 21st century, with a few exceptions, states had a long way to go before they become truly transparent. Texas was the only state found to provide information online in all the categories, whereas Mississippi was the state with the least information.

Sunshine Week 2009 Survey Of State Government Information Online: http://www.sunshineweek.org/sunshineweek/state_govt_online_survey_09

Sunshine Week Survey Worksheet: http://www.sunshineweek.org/files/transparency_worksheet_09.pdf

Chart Showing Information Categories Viewable Free Online: http://www.sunshineweek.org/files/state_govt_online_survey_09_chart1.pdf

EPIC's Page on Public Opinion on Privacy: http://epic.org/privacy/survey/

The Office of Government Information Services in the National Archives and Records Administration is being established after it received key funding. The omnibus appropriations bill passed by the Senate on March 10 includes $1 million for the establishment of OGIS. The OGIS was originally mandated under the Openness Promotes Effectiveness in our National Government Act of 2007, but the National Archives did not have the necessary budget to establish OGIS.

The OGIS was created to review policies and procedures of administrative agencies; review compliance by administrative agencies; and recommend policy changes to Congress and the President to improve the administration. The OGIS was also charged with mediating inter-agency Freedom of Information requests, review agency compliance with requests, and enable the FOIA ombudsman. The omnibus appropriations bill which includes funding to reconstitute the Privacy and Civil Liberties Oversight Board, was established at the recommendation of the 9/11 Commission to help protect privacy and civil liberties. The Government Accountability Office was given the responsibility of conducting audits of administrative agencies on the implementation and subsequently issue reports detailing the results of such audits.

The National Archives and Records Administration assists federal agencies and the public with research and reference services and provide agencies with records storage, access, and disposition services through a national network of facilities. The OPEN Government Act is supposed to strengthen FOIA and close loopholes, by protecting access to FOIA fee waivers for legitimate journalists, regardless of institutional association - including bloggers and other Internet-based journalists. The statute is also supposed to help FOIA requestors obtain more timely responses, by establishing FOIA hotline services, either by telephone or on the Internet to enable requestors to track the status of their FOIA requests and creating a new FOIA ombudsman to review agency FOIA compliance and to provide alternatives to litigation.

The legislation also ensures that agencies have strong incentives to act on FOIA requests in a timely fashion, by restoring meaningful deadlines that require agency action on FOIA requests within 20 days of their receipt and imposing real consequences on federal agencies for missing statutory deadlines.

Senators Patrick Leahy and John Cornyn, who sponsored the bill, stated that they considered open government to be a prerequisite for a free society, and that accountability was only an empty promise without transparency. They intended their legislation to provide reporters, bloggers and other citizen-journalists with the tools they needed to continue to improve the ongoing work of defending and refining American democracy.

Critical FOIA Office Receives Funding In Omnibus: http://leahy.senate.gov/press/200903/031109a.html

Senator Leahy's Statement about the OPEN Government Act, 2007: http://leahy.senate.gov/press/200703/031307f.html

Text of the OPEN Government Act: http://epic.org/redirect/031709_OpenGovAct.html

The annual Rosemary Award for the year 2009 has been awarded to the Federal Bureau of Investigation. The award is given out by The National Security Archive at The George Washington University. It recognizes outstandingly bad responsiveness to the public that flouts the letter and spirit of the Freedom of Information Act. The Award is named after President Nixon's secretary Rose Mary Woods and the backwards-leaning stretch with which she erased an eighteen-and-a-half minute section of a key Watergate conversation on the White House tapes.

Out of a total of 61,272 requests, the Justice Department denied 15,886 based on "no records". The agency backlog for the fiscal year was 4,364. The agency received 52,260 requests from last year's report and 59,615 from the current annual report. The agency processed 53,889 requests from last year's report and 61,272 from the current annual report.

In a case filed before the District Court for the District of Columbia, the Section Chief for Records/Information Dissemination at the FBI Headquarters explained that FBI files are indexed only by reference terms that have to be manually applied by individual agents. Further, the usual procedure was to look in a central database and thereby not turning up any record stored at FBI offices around the country, records before 1970s, and paper records indexed manually. Additionally, even if the record were sent directly to the field office, the procedure adopted was to forward the request to the central office where the data could not be located. Only after filing suit, the FBI would perform a broader search.

The FBI itself has recognized that its recordkeeping and search capabilities are deficient and has some of the longest average response times in the federal government. The FBI has also been faulted with having a routine practice of refusing to process requests unless requesters obtain a privacy waiver from living individuals about whom they have requested information. Another problem highlighted with the FBI was failing to properly maintain and preserve its historical records leading to destruction or inaccessibility of important records.

Previous winners of the Rosemary award have included The Department of Treasury, The Air Force and The Central Intelligence Agency. In the past, EPIC has filed several Freedom of Information requests with the Justice Department with some leading to lawsuits.

2009 Rosemary Award for Worst FOIA Performance Goes to FBI: http://www.gwu.edu/~nsarchiv/news/20090313/index.htm

2009 Rosemary Award: http://www.gwu.edu/~nsarchiv/news/20090313/Rosemary_Award_2009.pdf

FBI wins Rosemary Award - Background Memorandum: http://epic.org/redirect/031709_FBI_Rosemary_Background.html

Declaration of FBI Section Chief for Records/Information Dissemination: http://www.gwu.edu/~nsarchiv/news/20090313/Hardy.pdf

U.S. Department of Justice, Freedom of Information Act Annual Report (Fiscal Year 2008): http://www.usdoj.gov/oip/annual_report/2008/08contents.htm

EPIC's Litigation Docket: http://epic.org/privacy/litigation/

Obama Administration Refuses to Divulge Contents of ACTA

The United States Trade Representative denied a Freedom of Information request filed by Knowledge Ecology International to uncover documents pertaining to Anti-Counterfeiting Trade Agreement. The ACTA is being drafted to reduce the global trade of counterfeit goods and pirated copyright protected works as well as internet distribution and information technology. The denial states that the documents were being withheld since it was classified in the interest of National Security pursuant to Executive Order 12958. Previously, Senators Patrick Leahy and Arlen Specter of the Senate Judiciary Committee had expressed concern that ACTA may not have been drafted with sufficient flexibility and could limit Congress's ability to make appropriate refinements to intellectual property law in the future. Meanwhile, European Parliament Members have called on the Commission to make available all documents related to ACTA.

USTR's Denial of FOIA Request to KEI: http://www.keionline.org/misc-docs/3/ustr_foia_denial.pdf

Access to Documents: The European Parliament Demands More Transparency: http://epic.org/redirect/031709_EuroParlACTA.html

Senators' letter to USTR: http://ip-watch.org/files/acta_letter.pdf

Wikileaks: ACTA discussion paper: http://epic.org/redirect/091308_ActaDiscussion.html

Letter to Anti-counterfeiting Trade Agreement Negotiators: http://epic.org/redirect/091308_ActaAgreement.html

Poll Finds Government Continues to be Perceived as Secretive

In a Sunshine Week poll conducted by the Scripps Howard News Service and Ohio University involving 1012 adults, the government was more often thought to be secretive than not. With respect to local government, about 40 percent stated that they viewed it as somewhat or very secretive. In contrast, 74 percent of the interviewed population considered the federal government as somewhat or very secretive. The study also found that 87 percent decided voting issues based on a presidential candidate's position.

Scripps Howard News Service Poll: http://epic.org/redirect/031709_Poll_Open_Gov.html

2009 FOI Conference Meets at the Newseum

The 11th Annual National FOI Day Conference for this year was themed "Freedom and Information: Looking Back and Looking Forward." Legal scholars, lawyers and journalists discussed the state of freedom of information since the change in administration and its prospects under President Obama. Rep. John Conyers Jr., D-Mich., was the keynote speaker for the conference which brought together access advocates, government officials, lawyers, librarians, journalists, educators and others. It was presented in association with Sunshine Week, the American Library Association and OpenTheGovernment.org. The First Amendment Center works to preserve and protect First Amendment freedoms through information and education.

Conyers to headline FOI Day: http://www.firstamendmentcenter.org/news.aspx?id=21343

2009 National FOI Day Conference: Agenda: http://www.firstamendmentcenter.org/about.aspx?item=2009_FOI_Agenda

National FOI Day: http://epic.org/redirect/031709_FAC_FOI_Day.html

National Press Club Hosts FOIA Tutorial

The National Press Club is hosting a tutorial on use of the Freedom of Information Act and state FOIA laws. The class is supposed to aid reporters in "shining light on government activity." The class will examine the types of records one can actually expect to acquire and facts that have already been disclosed as a result of FOIA requests. The meet will also discuss documents which can be difficult to acquire from the government directly, but could be acquired from alternative sources. The Press Club class will also show the recent changes to FOIA and look at how the new administration appears to be treating government transparency issues generally and also discuss access trends in the states.

FOIA Class 10 am March 18: http://www.press.org/article.cfm?id=644

OpenTheGovernment's Live Transparency Session

The OpenTheGovernment.org website will present a great opportunity for the public to be involved in the creation of a directive that will give effect to President Obama's memorandum on Transparency and Open Government directing his Administration to develop recommendations for an "Open Government Directive" that moves government towards being "transparent," "participatory," and "collaborative." During the webcast, individuals who are involved in formulating the Administration's policies and agendas will detail the initiative's objectives and receive feedback from the audience. The event will feature a discussion between speakers and the audience on what the Obama administration hopes to achieve, the policy issues facing the administration, the Obama administration's vision for e-government, and financial and economic transparency. Vivek Kundra, the newly-appointed federal Chief Information Officer has also been invited. The event will be held at the Center for American Progress (1333 H Street, NW, Washington, D.C.) and webcast to sites around the country.

Opening Doors: Finding the Keys to Open Government: http://www.openthegovernment.org/article/articleview/353/

"Litigation Under the Federal Open Government Laws 2008", edited by Harry A. Hammitt, Marc Rotenberg, John A. Verdi, and Mark S. Zaid (EPIC 2008)

http://epic.org/bookstore/foia2008/

"The EPIC FOIA litigation manual will help ensure that those who are pursuing open government requests understand their rights, and the best strategies to pursue their requests."

– Senator Patrick Leahy,
co-sponsor of the OPEN Government Act
of 2007

"Deserves a place in the library of everyone who is involved in, or thinking about, litigation under the Freedom of Information Act."

- Steve Aftergood,
Federation of American Scientists

Litigation Under the Federal Open Government Laws is the standard reference work covering all aspects of the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act. The 2008 edition includes a foreword by Senator Patrick Leahy, co-sponsor of the OPEN Government Act of 2007.

The EPIC FOIA litigation manual is the most comprehensive, authoritative discussion of the federal open access laws. This updated version includes new material regarding the substantial FOIA amendments enacted on December 31, 2007 as the OPEN Government Act of 2007. Many of the amendments are effective as of December 31, 2008.

The fully updated 2008 volume is the 24th edition of the manual that lawyers, journalists and researchers have relied on for more than 25 years. Litigation Under the Federal Open Government Laws is published by EPIC in cooperation with Access Reports and the James Madison Project. The book draws upon the expertise of practicing attorneys who are recognized experts in the field. The 24th edition includes updates concerning the OPEN Government Act of 2007, a revised chapter regarding litigation strategy, international open government resources, a glossary of key terms, and is updated with new significant cases.

Appendices include a sample FOIA request, a sample request for expedited processing, and sample pleadings for the FOIA, the Privacy Act, and Federal Advisory Commission Act, and the Government in the Sunshine Act.

For those who litigate open government cases, or need to learn how to litigate them, this is the essential reference manual.

Order Litigation Under the Federal Open Government Laws 2008: http://epic.org/bookstore/foia2008/

"Information Privacy Law: Cases and Materials, Second Edition" Daniel J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.

http://www.epic.org/redirect/aspen_ipl_casebook.html

This clear, comprehensive introduction to the field of information privacy law allows instructors to enliven their teaching of fundamental concepts by addressing both enduring and emerging controversies. The Second Edition addresses numerous rapidly developing areas of privacy law, including: identity theft, government data mining and electronic surveillance law, the Foreign Intelligence Surveillance Act, intelligence sharing, RFID tags, GPS, spyware, web bugs, and more. Information Privacy Law, Second Edition, builds a cohesive foundation for an exciting course in this rapidly evolving area of law.

"Privacy & Human Rights 2006: An International Survey of Privacy Laws and Developments" (EPIC 2007). Price: $75.
http://www.epic.org/phr06/

This annual report by EPIC and Privacy International provides an overview of key privacy topics and reviews the state of privacy in over 75 countries around the world. The report outlines legal protections, new challenges, and important issues and events relating to privacy. Privacy & Human Rights 2006 is the most comprehensive report on privacy and data protection ever published.

"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the Information Society" (EPIC 2004). Price: $40.

http://www.epic.org/bookstore/pvsourcebook

This resource promotes a dialogue on the issues, the outcomes, and the process of the World Summit on the Information Society (WSIS). This reference guide provides the official UN documents, regional and issue-oriented perspectives, and recommendations and proposals for future action, as well as a useful list of resources and contacts for individuals and organizations that wish to become more involved in the WSIS process.

"The Privacy Law Sourcebook 2004: United States Law, International Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price: $40.

http://www.epic.org/bookstore/pls2004/

The Privacy Law Sourcebook, which has been called the "Physician's Desk Reference" of the privacy world, is the leading resource for students, attorneys, researchers, and journalists interested in pursuing privacy law in the United States and around the world. It includes the full texts of major privacy laws and directives such as the Fair Credit Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well as an up-to-date section on recent developments. New materials include the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the CAN-SPAM Act.

"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls" (EPIC 2001). Price: $20.

http://www.epic.org/bookstore/filters2.0

A collection of essays, studies, and critiques of Internet content filtering. These papers are instrumental in explaining why filtering threatens free expression.

EPIC publications and other books on privacy, open government, free expression, crypto and governance can be ordered at:

EPIC Bookstore
http://www.epic.org/bookstore

"EPIC Bookshelf" at Powell's Books
http://www.powells.com/bookshelf/epicorg.html

EPIC also publishes EPIC FOIA Notes, which provides brief summaries of interesting documents obtained from government agencies under the Freedom of Information Act.

Subscribe to EPIC FOIA Notes at: https:/mailman.epic.org/mailman/listinfo/foia_notes

"Conference on International Aspects of Securing Personal Data," The Federal Trade Commission, Washington, D.C., March 16-17, 2009. For more information, http://ftc.gov/opa/2008/12/datasec.shtm

"Security and Privacy in the Electronic Age" Old Parliament Building, Athens, Greece, March 19, 2009.

UC Berkeley Law School, BCLT Second Annual Privacy Lecture, "Confronting the Third Party Doctrine and the Privacy of Personal Information," March 18, 2009 at Bancroft Hotel, 2680 Bancroft Way, Berkeley, CA 94704. For more information,
http://www.law.berkeley.edu/institutes/bclt/privacy-lecture/index.html

Notice and Request for Public Comments by the Federal Trade Commission on Digital Rights Management Technologies. Event: Wednesday, March 25, 2009, Seattle, WA. For more information,
http://www.ftc.gov/bcp/workshops/drm/index.shtml

"Toward a Legal Framework for Identity Management" Oxford Internet Institute, Oxford, England, April 2-3, 2009. For more information, http://www.oii.ox.ac.uk/

"2nd Privacy OS Conference," MediaCentre, Berlin, Germany, April 1-3, 2009. For more information, http://www.privacyos.eu

"THE FUTURE OF PRIVACY: What's Next?" - a one day seminar. April 28, 2009, Cartier Suites Hotel, 180 Cooper Street, Ottawa, Canada. For more information,
http://www.rileyis.com/seminars/

"2nd Annual Research Symposium for the Identity, Privacy and Security Initiative," , May 6, 2009, University of Toronto. For more information, http://www.ipsi.utoronto.ca/site4.aspx

IEEE Symposium on Security and Privacy, May 17-20, 2009, The Claremont Resort, Oakland, California. For more information,
http://oakland09.cs.virginia.edu/

Web 2.0 Security & Privacy 2009, Thursday, May 21, The Claremont Resort, Oakland, California. For more information,
http://w2spconf.com/2009/

Computers, Freedom, and Privacy, 19th Annual Conference, Washington, D.C., June 1-4, 2009. For more information,
http://www.cfp2009.org/wiki/index.php/Main_Page

"The Transformation of Privacy Policy," Institutions, Markets Technology Institute for Advanced Studies (IMT)Lucca, Italy, July 2-4, 2009.

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The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, see http://www.epic.org or write EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "EPIC" and sent to 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. Or you can contribute online at:

http://www.epic.org/donate

Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and expanding wiretapping powers.

Thank you for your support.

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