Access to Gov't Information

New York Legislature Passes Open Records and Open Meetings Reforms

Matt C. Sanchez — Wed, 09 Jul 2008 14:26:42 -0400

The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year. Among other changes, the bills would increase electronic access to government records, prevent agencies from denying voluminous records requests, and make it easier for citizens who successfully challenge an open meetings violation to win awards of legal costs and attorneys' fees. The bills await consideration by Governor David A. Paterson before becoming law.

S962, perhaps the most interesting update to the state's open records law, requires an agency to produce a record in the medium requested by the person seeking information, so long as the agency can "reasonably" provide the record in the requested medium or hire an outside service to do it. This reform will make it possible to request more records in electronic -- rather than paper -- format, making it easier for citizens to use electronic means of searching, organizing, and analyzing information.

Another provision of S962 prohibits an agency from refusing a records request on grounds that the request is voluminous or that compliance would be too burdensome, provided that it can engage an outside organization to handle the request. The provision allows the agency to retrieve the costs of hiring an outside service from the person making the request. Because producing records in electronic format will generally be cheaper and easier than doing so on paper, this provision should make it especially difficult for agencies to deny requests for large amounts of information in electronic format.

On the open meetings side, S1599 would make it easier for successful plaintiffs in lawsuits claiming open meetings violations to win legal costs and attorneys' fees. The bill modifies existing law to provide for automatic awards of reasonable costs and fees whenever a public body votes on a measure or resolution in violation of open meetings requirements (i.e., in an improperly closed meeting) or engages in substantial private discussion prior to a vote at an open meeting. A public body can avoid the automatic award if it shows that it had a reasonable basis for believing it was entitled to hold a closed meeting.

Other open government bills awaiting Paterson's signature include:

S3850, which requires that agencies design their electronic records retrieval methods in a way that allows public information to be separated from information that might be withheld, whenever doing so is "practicable and reasonable." This provision should ease public access to records by making it less likely that sensitive information will stop the release of nearby or related -- but otherwise producible -- information.

S7944, which requires agencies to maintain an online listing of all records it possesses, arranged by subject heading. Any agency that has a website must post the list to its site, while agencies that don't have websites must arrange to have their lists posted at the Committee on Open Government site.

S7042, which requires agencies to make records that will be discussed in open meetings available to the public at least 72 hours before the meeting. The provision specifically includes records related to any proposed resolutions, laws, rules, regulations, policies, or amendments that the meeting will address.

Under New York law, Governor Paterson has 10 days from receipt of the bills to sign or veto them. If he does neither, the bills become law without his signature. You can track each bill's progress on the New York State Assembly's website by inputting the bill number (i.e. S7402) into the search field.

For general information on New York's open records and open meetings laws, see our legal guide sections, Access to Public Records in New York and Open Meetings Law in New York. In related news, CMLP intern Jason Crow's recent blog post discussed a bill pending in the New York legislature that would allow the public to photograph, videotape, and audio record public meetings open meetings.

(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Watchdog Group Counters Attorney General’s View of Improved FOIA Picture

Jim Ernstmeyer — Tue, 08 Jul 2008 17:21:05 -0400

A recent report by the U.S. Attorney General paints a mixed but generally positive picture of progress by the federal executive agencies in improving their responsiveness to Freedom of Information Act requests. Hard on its heels comes a study by the Coalition of Journalists for Open Government that points to scant progress by the agencies and instead suggests that they squandered a chance to reduce their backlog during a period of fewer requests.

The Freedom of Information Act (FOIA) was meant to make government more transparent and more accountable by creating the means for persons to obtain federal government records. Under an Executive Order of December 14, 2005, all of the Executive Branch agencies undertook a dedicated effort to improve their compliance with FOIA. The Executive Order mandates that each agency make a plan "to eliminate or reduce the agency's FOIA backlog, including . . . changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA." The Executive Order called for the plans to include concrete milestones and timetables that the Attorney General can use in monitoring agency improvements. The Attorney General assessed agency progress in a series of annual reports to the President, the last of which was due June 1, 2008.

In the last of the annual reports, made public in early June, the Attorney General found cause for optimism in the fact that 46 out of 89 federal agencies met all of the milestones in their plans. Of 25 key agencies, the 14 that did not meet all milestones at least made progress toward them. Agencies generally also improved customer service and increased their use of electronic reading rooms to make information available to the public without the need for FOIA requests.

Viewed critically, the AG's report strains to put a positive spin on its assessment, as in the section called "Despite Overall Increases in Incoming Requests, Agencies Overall Processed More Requests in Fiscal Year 2007." One hopes that receiving more FOIA requests should not so befuddle the government that it processes fewer requests as a result! Similarly, the report's claim that "backlog reduction is the single most significant improvement area" disguises the fact that the backlog reduction from 2006 to 2007 corresponds to a decrease in requests received, not an increase in requests processed. While pointing to roughly a dozen agencies that reduced their backlog of pending requests and lauding agency efforts to lay the foundation for future reductions, the AG acknowledges that much work remains to be done. Agencies are handicapped by staffing, facilities, and IT issues.

Not surprisingly, progress by the agencies in meeting their self-imposed, process-improvement milestones did not equate to reduced backlogs and improved response times. Using the same data available to the Attorney General from the agency Annual FOIA Reports, the Coalition of Journalists for Open Government (CJOG) fills in that part of the story. The year-end backlog of requests as a fraction of requests received increased at 8 of 25 key agencies (which include the 15 cabinet departments) between 2006 and 2007. More troubling, 13 of the 25 agencies showed a drop in the number of requests processed over that period -- in most cases a significant one -- in spite of the Executive Order. In the worst example, the number of requests processed fell by half, from 59,065 to 31,651, at the Department of Agriculture. The total backlog of requests at all agencies fell from its all-time high of 178,837 in 2006 to 149,890 in 2007, but this decrease can be explained almost entirely by a fall in the number of requests received while the number of requests processed remained stagnant. The CJOG claims that the failure to significantly increase the number of requests processed was an opportunity lost.

The CJOG also emphasizes that other measures of FOIA performance are in decline. The number of requests granted is falling. The annual number of full grants fell from 323,800 in 1998 to 187,881 in 2006 and further to 164,147 in 2007, slightly over half the 1998 number. Median wait time, another common-sense measure of performance, also worsened over the period. While many of the smaller agencies respond to simple requests in fewer than 20 days (in the median), performance within individual cabinet departments varies widely and wait times in the hundreds of days are common for both simple and complex requests.

It is, however, impossible to draw conclusions from the negative trends in requests granted and wait times without accounting for the characteristics of the requests themselves in greater detail than the available data permit. FOIA exempts information from disclosure on the basis of government interest in national security, protection of trade secrets, and protection of personal privacy, among other reasons. Justifiably refusing to comply with an information request on these bases does not reflect poor performance by the agencies. Likewise, long wait times may be justifiably influenced by the complexity of the requests and the age of the information sought. Thus, wait time and number of requests granted depend upon variables not captured in the agency FOIA reports and cannot be reliably evaluated without additional data or more resourceful analysis.

Even the most damning of the statistics presented by the CJOG, namely the stagnant number of requests processed and the declining number of personnel handling FOIA requests, might be justified if the agencies are in fact using electronic reading rooms more effectively, thereby reducing the need for FOIA requests in the first place. That would be in everyone's best interest.

The CJOG report may be the necessary counterweight to an overly optimistic assessment by the Attorney General, but neither report establishes conclusively whether the government is getting better at complying with the Freedom of Information Act. In any case there doubtless is ample room for improvement.

(Jim Ernstmeyer is a second-year law student at the Boston University School of Law and a Legal Intern at Harvard Law School's Cyberlaw Clinic.)

Holding Government Accountable One Click at a Time

Jason Crow — Thu, 26 Jun 2008 14:42:10 -0400

“Laws are like sausages. You should never watch them being made.” This adage, generally attributed to Otto von Bismarck, rings true to anyone who has had the opportunity to watch Congress make public policy. Just tune into C-SPAN sometime for a taste.

Across the pond in England, a website, TheyWorkForYou.com (TWFY), aims to change this by offering a new service that allows users to watch archived BBC coverage of parliamentary debates and tag the video.

The tagging solves a big problem: there is currently no way to search the video to find the speaker or topic you are interested in. TWFY is crowdsourcing the work, allowing visitors to mark the moment in the video when a speaker begins by pressing a big red button. They call this activity "time-stamping" and provide incentives to compete with others by displaying the names of the top time-stampers and giving away promotional hoodies to the top time-stampers. The time-stamping synchronizes the video with the transcript and makes the video much more useful by allowing users to search the video according to their interests.

According to Wikipedia, “crowdsourcing is a neologism for the act of taking a task traditionally performed by an employee or contractor, and outsourcing it to an undefined, generally large group of people, in the form of an open call.” Crowdsourcing has been used to accomplish a variety of tasks big and small. For instance in the political context, the Democratic National Committe crowdsources the production of video by redistributing amateur video of McCain’s speeches for public remixing through FlipperTV in hopes of creating the next viral video.

Video tagging of all sorts has been around for sometime (see these proprietary platforms: Viddler, Gotoit, VeoTag, MovieChapterizer), but this is the first implementation I have seen that uses an open platform and public contributors to do the tagging. If one can tag video in order to synchronize text and video, as is the current iteration at TWFY, a modification of the code may allow the addition of comments and links. In the context of government, one can envision video of a Senator debating proposed legislation accompanied by an embedded PDF of the legislation with links to a background primer on the subject. TWFY's open platform allows for programmers to riff on their current setup to make this a reality.

I applaud the BBC and TWFY for their efforts to inform the citizens of England by using an open platform. I am a big fan of civic engagement. However, did the BBC plan on exploiting the economics of crowdsourcing (as in free labor)? Why didn’t the BBC, who apparently provided the initial funding for the TWFY project, provide TWFY with enough funding for them to create the programming language to do the synchronization automatically? Perhaps the developers at TWFY are planning on developing this feature or counting on an open source developer from the community to help make it happen.

The controversy surrounding the ethical and economic implications of crowdsourcing have been explored by others (see Jimmy Wales and Douglas Rushkoff), but what about the legal implications? What kind of license would this enriched media require? Who owns the finished product? The users who contributed dozens of hours of work, TWFY, the Parliament or the BBC?

The transcripts of parliamentary debates, called "Hansard," remain under Parliamentary Copyright and are licensed by TWFY. The licensing guidelines indicate that for most uses the license is free, but in some circumstances there may be a charge. If users could add links or embed files, perhaps a U.K. creative commons license would be a good idea? As a comparison, the work of the United States Government is not covered by copyright, including, among other things, federal judicial decisions as well as speeches of federal government officials given in the course of their employment.

I remain hopeful that this fantastic service by TWFY will provide more openness, transparency and access to government information. Time-stamping at TWFY is surprisingly fun and the parliamentary debates can be quite lively. The TWFY website indicates that about 60% of the available video has already been time-stamped. I guess watching the sausage get made isn't so bad after all.

(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)

RI Bill Will Strengthen Citizens' FOI Rights

Matt C. Sanchez — Wed, 25 Jun 2008 13:00:37 -0400

After passing state bill H7422 last week, Rhode Island is set to join the growing list of states – including Tennessee, Pennsylvania, Nevada, and Oregon – that have strengthened their freedom of information laws in the past year. The bill, which contains several reforms of the state's open records practices, awaits only Governor Don Carcieri's signature before it will come into law.

From a citizen media perspective, the bill's most useful upgrade of Rhode Island's existing FOI law is that it will bar agencies from requiring that requestors provide personally identifiable information or specific reasons for their request. If passed, these provisions will help prevent agencies from denying open records requests based upon the characteristics of the individual requestor. For instance, it would be more difficult for an agency to refuse an open records request from a citizen speaker who has been known to criticize the state government.

The bill offers several other reforms, including:

A requirement that agencies grant or deny a request within seven days, a decrease from the original 10-day requirement. However, an agency may extend the deadline to a maximum of 20 days (formerly 30) if it asserts in writing that the request otherwise would be unduly burdensome;

A requirement that an agency waive all copying and search fees if it fails to produce requested records in a timely manner;

An increase of the maximum fine that may be imposed upon agencies and officials for violating the open records law from $1,000 to $5,000, plus a new provision for up to $2,000 in additional fines if an agency or official "recklessly" violates the law;

A requirement that each state agency annually certify in writing that it has provided open-records orientation and training to all officers and employees who have the authority to grant or deny access to state records;

A requirement that the police records from an arrest of an adult must be made public within 24 hours after the arrest; and

Clarification that police officers' narrative accounts of arrests are public records.

Under Rhode Island law, Governor Carcieri has six days to sign or veto the bill. If he does neither, the bill will come into law without his signature. The bill would take effect on Sept. 1, 2008.

(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Supreme Court Rejects FOIA Restrictions

Matt C. Sanchez — Thu, 19 Jun 2008 16:39:46 -0400

In a rare Freedom of Information Act (FOIA) decision, the Supreme Court recently held in Taylor v. Sturgell that an individual's failed FOIA request does not preclude similar requests from related individuals. In doing so, the court rejected the legal doctrine of "virtual representation," which would have prevented a FOIA requestor from seeking judicial relief if he had a "close relationship" with a party who had previously litigated the same FOIA request.

The dispute began in 1997, when antique-airplane enthusiast Greg Herrick filed a FOIA request with the Federal Aviation Administration (FAA) seeking specifications for the Fairchild Engine and Airplane Corporation's F-45 airplane. Herrick intended to use the specs to aid him in restoring his own vintage F-45. The FAA denied the request on the dubious ground that the specs for the circa 1930s aircraft qualified for FOIA's "trade secrets" exemption (see 5 U.S.C. § 552(b)(4)). Herrick filed suit against the FAA in Wyoming federal court, but the court agreed with the FAA's trade secrets rationale.

Brent Taylor, who was not a party to Herrick's case, filed his own FOIA request for the same F-45 records less than a month after the Tenth Circuit released its decision on Herrick's appeal. Following the FAA's denial of his request, Taylor filed suit in Washington, D.C. Though Taylor admitted that Herrick, his friend, had asked for his help in restoring the F-45, Taylor said he filed his FOIA request in order to make the specs available to the public and to preserve antique aircraft heritage. The D.C. court granted summary judgment against Taylor, citing the doctrine of "virtual representation." The U.S. Court of Appeals for the D.C. Circuit affirmed.

"Virtual representation" is an expansion of res judicata, which precludes parties from litigating claims and facts that previously have been settled in court. Res judicata typically does not apply to an individual -- such as Taylor -- who was not a party to the original case, under the principle that every individual should have her day in court. There are some exceptions to the general rule against non-party preclusion, most notably where the non-party has a pre-existing legal relationship with an original party. Virtual representation would lower the bar of res judicata by extending it to individuals who have a "close relationship" with an original party.

Taylor then appealed to the Supreme Court, which vacated the apellate decision and explicitly disapproved of the concept of "virtual representation." Justice Ginsburg's majority opinion cited the "deep-rooted historic tradition" against non-party claim preclusion, noting that none of the six exceptions to this general rule supported "virtual representation." While a pre-existing legal relationship between Taylor and Herrick may have precluded Taylor's claim, for instance, their other connections did not. The Court remanded the case for consideration of whether Taylor fit within any remaining exceptions.

The decision bodes well for FOIA requestors as it preserves the right of every citizen to have their chance to request a record -- or, in legal terms, to have their day in court. The court's holding allows subsequent requestors to file their own requests, preventing them from being bound by denials that arose because of faults in previous requests. However, it is worth noting that this decision is not limited to FOIA. It presumably will kill off "virtual representation" as a doctrine of claim preclusion in non-FOIA cases as well, removing a potential obstacle to citizens' ability to have their day in court on a wide range of issues.

In addition to the procedural arguments, the Supreme Court's decision also is the correct result under FOIA itself. FOIA does not require requestors to state the reason for their request or to offer any identifying information aside from their name and contact information. It's hard to imagine how an agency could properly deny a request based upon information that isn't relevant under FOIA in the first place.

For more information on the case, you can read more about the case at SCOTUSblog's great new Supreme Court wiki. The wiki contains summaries of each stage of the case's history, a full set of briefs -- including amicus and certiorari briefs -- and links to outside discussions of the case. It seems SCOTUSblog plans to maintain a comprehensive page for every case the Court hears from now on, so it's worth a bookmark for future use. The site currently covers the full run of cases from 2007 and is being filled in with information on this year's decisions.

(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Bill Will Revamp Tennessee Open Records Law

Matt C. Sanchez — Fri, 30 May 2008 13:33:57 -0400

Tennessee Governor Phil Bredesen is expected to sign into law a recently passed bill that would provide a much-needed overhaul of the state's open records practices. The bill, SB3280, corrects a number of deficiencies in the current Tennessee Open Records Act.

Key provisions of the bill include:

A clarification and expansion of the definition of "open records" and "state records." The new law would explicitly encompass all state records unless they fall within a specific exemption.

A requirement that the Office of Open Records establish a schedule of reasonable charges that records custodians will use as a guideline when determining how much to charge citizens for copies of public records.

A requirement that open records requests must be fulfilled or denied a within seven days, which accords with the average time limit in other states' open records laws. Previously there was no set time period for responses to records requests.

A requirement that all denials must be accompanied by a description of the "basis for denial." Previously custodians did not need to note why the request had been denied. An earlier version of the bill had an even better "legal exemption" requirement - which would have mandated that custodians cite the specific provision that warrants the denial - but this was changed through amendment.

The Creation of the Office of Open Records Counsel, which will handle open records issues for local government.

A number of minor changes to the state open meetings law, including a provision that allows prevailing plaintiffs in lawsuits concerning violations to recover reasonable attorneys' fees.

Sadly, one of the more promising provisions did not survive the legislative process. The original version of the bill would have allowed "any citizen" to request records. Later amendments reverted this provision to its original form, which affords the privilege to Tennessee citizens alone. While some states restrict requests to their own citizens - Virginia, for example - most do not. See the CMLP Legal Guide section on Access to Records from State Government for more information.

Such restrictions on access evince a myopic view of the types of citizens who will and should be able to request records. The Tennessee open records law could pose a problem for citizens of other states with roots or family members in Tennessee, or for individuals who live in Tennessee but who have not yet become "citizens of the state." This is complicated by the fact that neither the bill nor the Tennessee Code as a whole defines what a "citizen of Tennessee" is. These concerns are ameliorated to some extent by a provision that requires citizens to provide identification only when the requested record "involves personal security by the entity or official retrieving such record." Additionally, there is nothing to prevent non-citizens from asking a Tennessee citizen to place a request for them.

This concern aside, the bill promises to greatly improve citizens' ability to obtain Tennessee records and information if it comes into force. Under Tennessee law, Governor Bredesen has 10 days from receipt of the bill to sign or veto it; if he does neither, the bill will become law without signature.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Highlights from the Legal Guide: Access to Courts and Court Records

CMLP Staff — Tue, 29 Apr 2008 14:28:00 -0400

This is the eighth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Access to Courts and Court Records, which provides an overview of federal and state laws that grant you the right to access federal and state court records and court proceedings. We also provide some practical tips for getting useful information out of your local courthouse.

Access to Courts and Court Records

If you’re hunting for information, consider a visit to the courthouse, where you can sift through resource-rich court records or attend (sometimes colorful) court proceedings.

Courts are centers for dispute resolution. They are public forums in which societal norms and values, as reflected in laws, are used to address and correct wrongs. While a number of laws govern the court system, none is so deeply-ingrained as the presumption that court proceedings should be open to the public.

If you are wondering how attending court proceedings or combing through court records might be valuable to you, here are several great reasons to consider acquiring -- and publishing -- information available from the courts:

You’re interested in reporting on justice or the functioning of the court system

Some believe that courts dispense justice; others believe that the law is divorced from justice. One good way to explore this issue is by attending a trial. Non-traditional journalists have already had highly visible success in covering court proceedings, as seen in the 2007 trial of Lewis “Scooter” Libby. A blogger from Firedoglake.com gained press credentials, live-blogged the trial, and provided the public with what the New York Times described as the “fullest, fastest public report” that traditional reporters used to fact check their stories. Salon applauded Firedoglake for producing “insightful” and “superb” coverage “that simply never is, and perhaps cannot be, matched by even our largest national media outlets.” In this case press credentials were necessary due to the intense public interest, but usually they’re not needed for courtroom access.

If you are interested in reporting on justice or the functioning of the court system, you should review the sections on access to federal court and state court proceedings for guidance on how to attend court proceedings. You may want to consult court records to get a better understanding of what is happening in court. For details, see State Court Records and Federal Court Records.

You enjoy publishing a good story

Attorneys engage in storytelling to win the case for their clients. Conflicts are inherently interesting, and the stories presented at trial tend to offer different interpretations of the truth. Tensions run high, and you may find yourself caring deeply about a previously unknown issue. As a result, courtroom dramas can make compelling subjects for blog posts and other website content. You need merely look at the Citizen Media Law Project Blog for evidence of this and the many fascinating "stories" we cover in the Legal Threats Database.

If you enjoy publishing a good story, you should visit the page on Access to the Jury and Trial Participants to find out how to properly contact court participants such as judges, lawyers, parties, witnesses, and jurors to get the juicy details that will bring your story to life.

You have a pre-existing interest in one of the parties in a court proceeding

If a certain person or institution interests you, following their footprints in court often yields a wealth of information. For example, as part of their coverage of the 1972 election, the Washington Post sent a young journalist on a low level assignment to attend the arraignment of five men who had been arrested for breaking into the Democratic National Committee’s headquarters. As the journalist paid close attention to the proceedings, he quickly realized that there were more questions that needed investigating. If Bob Woodward hadn’t attended that seemingly minor court proceeding, the Watergate story might never have been broken.

Besides the obvious value of attending court proceedings, there is a wealth of information available in court records about individuals, corporations, and other organizations that can further aid your investigations. See the sections on access to federal and state court records for guidance on how to access this information.

You enjoy historical research

Court records can be immensely helpful to historians in two major ways: specific court cases can illuminate a certain aspect of history, and court records in aggregate can show statistical trends that highlight social, cultural, or structural changes. For genealogists, court records can also reveal family relationships, places of residence, occupations, physical or personality descriptions, or naturalization dates. Refer to Genealogy.com and Ancestry.com for more information on how mine court records for information on your family.

If you enjoy historical research, you will find a wealth of information in court files, a growing percentage of which are now available electronically. The sections on access to federal and state court records should help you find the right place to look for the information you need.

Where to Begin

Now that we've whetted your interest in court proceedings and records, it's time to do some research so that you will be able to get access to what you need. Before you jump into the materials in this guide, however, you should first determine whether the documents and/or proceedings you are interested in are associated with the federal court system or a state court system. The the page on Identifying Federal, State, and Local Government Bodies should help, as will a preliminary visit to the courthouse.

Once you've figured out what information you want and where it is located, you should browse the following sections to get a full understanding of your right to access court records and court proceedings:

Access to Federal Courts: Describes your right to attend federal court proceedings and access federal court records.

Access to State Courts: Describes your right to attend state court proceedings and access state court records.

Access to Jury and Trial Participants: Explains how to properly contact court participants such as judges, lawyers, parties, witnesses, and jurors.

Remedies if You Are Denied Access to Court Proceedings: Outlines the procedures you should follow if a judge closes a court proceeding you wish to attend.

Practical Tips for Accessing Courts and Court Records: While we can't guarantee that you will get every court record or attend every court proceeding you desire, the tips listed on this page will help ensure that you take full advantage of the wealth of information available through state and federal courts.

Pennsylvania's Upcoming Right-To-Know Law

Tuna Chatterjee — Fri, 18 Apr 2008 17:09:04 -0400

Here at the Citizen Media Law Project we recently finished the fourth major section of our Legal Guide on Access to Government Information. As we were researching the various freedom of information laws, we came across Pennsylvania’s recently enacted Right-To-Know Law which goes into effect on January 1, 2009, and wanted to again applaud its arrival (we initially noted the Governor's signing of the law back in February).

The Better Government Association watchdog group ranks Pennsylvania’s current open records law near the bottom (48th of the 50 states) for quality of public access. The law itself dates back to 1957 and seemed fairly ensconced until a recent spate of highly publicized government scandals triggered its reassessment. The notorious attempt by the Pennsylvania Higher Education Assistance Authority’s to cover up the hundreds of thousands of dollars it spent on resort trips for board members and staff over a five year period, and the Democratic caucus’ infamous secret payment of legislative bonuses totaling 1.9 million dollars to staff members were among the more egregious news stories and resulted in public outcry demanding greater government transparency.

Although the law doesn’t break any new ground for government access in general, the new Right-To-Know law will make the existing opaque regime more transparent. The law finally recognizes that agencies and officials are caretakers, and that government records belong to the public. While the current law places the burden on the individual to demonstrate entitlement to a record, the new law presumes that government records are open for public inspection. Moreover, this new vision percolates to the procedural details—for example, you do not need to provide a reason for inspecting a record and the law specifically allows you to make a request anonymously.

Not surprisingly, there are those who feel that the new law does not go far enough. Some lament the Department of Community and Economic Development's role in overseeing the appeals process arguing that it is not a truly independent body. The potpourri of other critiques include the lack of criminal penalties for repeat agency offenders, the exemption allowing for the nondisclosure of the names, ages, and addresses of juveniles, the limited access to 911 calls, and the restrictions on accessing autopsy reports.

But the overwhelming sentiment is relief, as the new law comes a long way. It includes an individual’s ability to access the records of the General Assembly, and ensures a smoother request process. For example, the statute sets a small cost for reproduction in contrast to the sometimes prohibitive fees that agencies have charged under the current law.

Hopefully, the public will make good use of the new law to scrutinize state and local government practices and head off dubious actions such as the state’s decision not to publicize a list of polling places during the fall 2007 elections. Here’s to the coming sunshine in Pennsylvania!

(For more information about the new Pennsylvania Right-To-Know Law, refer to the section on Access to Public Records in Pennsylvania in our legal guide.)

Oregon Claims Copyright in Its Statutes -- Well, Sort Of

Sam Bayard — Thu, 17 Apr 2008 12:04:22 -0400

Just last week, I was ruminating on the viability of state claims of copyright in government records. At the time, I was pretty confident that a state wouldn't be crazy enough to claim copyright in its own statutes, both because caselaw suggests this would be legally invalid and because it would be shoddy public policy. Now, the Legislative Counsel Committee of the State of Oregon has sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee's claim is not as outlandish as it initially sounds, but it is still quite problematic.

The Committee is not claiming copyright in the text of the law itself. Smart thinking -- Tim Armstrong at Info/Law does a better job than I could marshalling the cases suggesting that any copyright claim to the text would be doomed. (The most exciting of these cases is Veeck v. Southern Building Code Congress Int'l, 293 F.3d 791 (5th Cir. 2002) (en banc), if only because it's from this century.) Instead, the Committee claims copyright in

the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law.

It's hard to evaluate how much original material the Committe might have added to the Revised Statutes without an in-depth comparison of the finished product with the raw output of the state legislature. But, off the top of my head, it looks extremely suspect to claim rights in the overall organizational structure and the numbering for each statutory section. First of all, the arrangement of statutory sections based on subject matter created by the legislature and numbering them one after the other probably does not rise to the (admittedly low) level of originality required for copyright protection. Moreover, recognizing the state's copyright in these features would effectively allow it to bootstrap a monopoly on the underlying statutory text. Sure, courts have recognized that compilers generally can protect the "arrangement and display" of unprotectible materials, but I can't see how anyone could publish an intelligible competing version of the Oregon statutes without relying on the officially recognized structure and section numbers. This is the law, after all. You can't just make up section numbers and put the titles, chapters, and individual sections together in some fanciful new way. That would defeat the whole purpose of giving the public access to statutes so that it might "know the law." Nash v. Lathrop, 5 N.E. 559, 560 (Mass. 1886).

Oddly, Carl Malamud of public.resource.org, another online source of free caselaw and statutes, has preemptively entered the fray. He wrote to the Committee on April 13, indicating that Justia had shared its cease-and-desist letter with him and notifying it that he had disabled the public's access to the Oregon Revised Statutes on his site. He followed up on April 15, notifying the Committee of various technical deficiencies in the version of the statutes publicly available on the Legislative Assembly's website. In general, I'm a big fan of Mr. Malamud and his projects, but I think his letters in this case muddy the waters by bringing up a host of issues unrelated to the Committee's copyright claim and by exagerrating the nature of those claims (e.g., the April 13 letter says that the C&D claims that "these state statutes are state secrets," which it emphatically does not).

This is one to monitor.

The Smoking Gun Does the Dirty Work, Finds the Gems Others Miss

David Ardia — Wed, 16 Apr 2008 12:44:20 -0400

The New York Times just ran a fascinating article on The Smoking Gun, a website dedicated to providing "documents--cool, confidential, quirky--that can't be found elsewhere on the Web." The three-person investigative shop in mid-town Manhattan consistently finds -- and publishes -- court documents, government records, and other esoterica that it finds through Freedom of Information requests, court files, and good old-fashioned investigative journalism. As we explain in our legal guide, you don't need the resources of a big media organization to use these information gathering tools effectively.

According to the Times:

The Smoking Gun has demonstrated that if you obey the metabolism of the Web, not the journalist, you can land with significant impact in a hurry.

“I think one of the keys is that we are three people,” said Mr. Bastone, who founded the site with Daniel Green, another Voice alumnus who has since moved on to truTV at Turner, and Barbara Glauber, Mr. Bastone’s wife and the designer of the site. . . .

“Their secret sauce is the ability to source documents that no one else can get,” said Steve Koonin, president of Turner Entertainment Networks, which inherited the site when it bought Court TV. “It’s not a big business, but it’s profitable, and one of the things we are diligent about is the care and feeding of brands. Young people respond to this brand on TV and on the Web.”

Read the whole article. It's worth your time.