Transparency News 2/13/15

Friday, February 13, 2015  

State and Local Stories

Yesterday, the FOIA subcommittee of House General Laws recommended tabling a bill that would have created a meetings exemption for discussions/briefings on “gang-related activity.” The subcommittee recommended sending the bill to the FOIA Council’s ongoing study.

Attorney General Mark Herring points out that the state's FOIA law and the codes governing the CCRE seem to be at odds – one says photos should be released, the other says the records are protected — but said the laws should be taken as a whole. Because local agencies keep arrest photos in databases separate from the Central Criminal Records Exchange, the FOIA amendment means they must turn mug shots over in response to valid requests. However, photos cannot be pulled from the CCRE to satisfy those requests. Last September, the Daily Press wrote about difficulties obtaining a booking photo of former Windsor Police Chief Arlis 'Vic' Reynolds. Reynolds was arrested by the Virginia State Police on embezzlement charges but a photo was not released.
Daily Press

The Reporters Committee for Freedom of the Press has sent a letter to the Virginia House of Delegates urging them to reject Senate Bill 1393, which would exempt crucial information on the drugs used in executions, as well as the pharmacies that produce them and any investigations into those pharmacies, from the Virginia Freedom of Information Act (Virginia FOIA). The bill passed the Virginia Senate Tuesday by a vote of 23 to 14. It comes at a time when many other states, worried about the diminishing supply of drugs for lethal injections, have passed similar laws seeking to shroud their sources for such drugs in secrecy. In its current form, the bill shields key information related to the drugs used in executions and their sources from the public. Specifically, it would make secret “the identities of persons or entities engaged to compound drug products for use in the execution, the identities of persons or entities engaged to manufacture or supply the materials used to compound drug products for use in the execution, [and] the name of the materials or components used to compound drug products for use in the execution . . . .”  The letter from the Reporters Committee to the Virginia House of Delegates argues that exempting information on execution drugs from the Virginia FOIA “will make it impossible for Virginians to evaluate whether the decisions of their government in choosing execution drugs, as well as the source of those drugs, are proper.” It notes that the entities that produce the supplies used in executions have, historically, not been shielded from the public. For example, when hangings were the dominate form of executions, it was common for the manufacturer of the rope to be public knowledge, and even reported on by the press.
Reporters Committee for Freedom of the Press

National Stories

Legislation introduced this week by New Mexico Rep. Jim Smith (R - District 22) and Sen. Daniel Ivey-Soto (D - District 15) would require that public comment be permitted during public meetings. House Bill 378 amends the current Open Meetings Act and requires public bodies to set aside a reasonable amount of time for individuals to speak in public meetings. The bill further stipulates that public bodies allow a diversity of viewpoints be presented, regardless of the time allotted.  The New Mexico Foundation for Open Government, NMFOG, is championing the measure.
KRWG

He’s likely the most hated man in Colorado after killing a dozen people in a 2012 shooting spree, but taxpayers will spend at least $7 million to try James Holmes and help survivors of the attack - and opening arguments haven't even begun. The Arapahoe County District Attorney’s Office has disclosed more than $2 million in direct and indirect expenses involved in prosecuting the 27-year-old former neurology graduate student. But it is not clear how much has been spent by the Colorado public defender, because the office, citing attorney-client privilege, refuses to disclose a figure. That stance has critics fuming.
Fox News

Sen. Richard Burr, the new Senate Intelligence Committee chairman, appears to have taken a first step toward promises to open some meetings to the public as he looks to beef up scrutiny of the nation’s top spy agencies. The North Carolina Republican held his first public hearing on Thursday with a top U.S. counterterrorism official about existing threats to the United States. The meeting is significant because it’s so seldom that intelligence hearings are opened to the public.
McClatchy

Legal and educational policy experts urged lawmakers on Thursday to improve security safeguards in student privacy laws and update them to better reflect the rapid leaps in technology. “Unless Congress . . . clarifies what information can be collected, how that information can be used and if that information can be shared, student privacy will not be properly protected,” said Rep. Todd Rokita, R-Ind., who led the hearing before a House Education and the Workforce subcommittee. The law, the Family Educational Rights and Privacy Act – known as FERPA – was written in 1974 to protect student records. It only covers schools receiving federal money. An update of the regulations in 2012 permitted greater disclosure of the data. But with the increasing ability of hackers and others to pierce firewalls that shield personal, corporate and government material, federal and state officials are looking for ways to protect student privacy.
McClathchy

 

Editorials/Columns

The Virginia House of Delegates will have the chance to cure a mistake by the Senate: The House can and should reject a bill that would shroud the Virginia execution process in secrecy and darkness. Senate Bill 1393, filed by Sen. Richard L. Saslaw, D-Fairfax, allows the state Department of Corrections to contract with any “external entity” to compound the drugs used for execution by lethal injection. But a provision of this bill exempts the contracting process, the identity of any providers and the drug components used for execution from the Freedom of Information Act. If there is any solace to be taken, Saslaw’s original bill was worse – the whole process would have been secret. A condemned person, or his or her family, could not find out the details about the state-imposed death.  But an amendment took out wording that would have exempted from FOIA all information relating to the execution process, including details of the buildings used during an execution and all records about the equipment used. The execution process should not be fogged by secrecy. We urge members of the House of the Delegates to reject this bill.
Virginia Lawyers Weekly

Those who didn’t know better might think the administration of Richmond Mayor Dwight Jones was having a contest with the Richmond Economic Development Authority for the title of Most Opaque Government Body in Virginia. After much pressure, the city has released its vise-like grip on the confidentiality agreement the administration asked the City Council to sign regarding the departure of Byron Marshall, the former city administrator. The actual terms of that departure have not been released themselves, of course. The confidentiality agreement is sweeping — so sweeping that those who signed it are not even supposed to acknowledge it exists. Meanwhile, the EDA has just voted to change the terms of the lease with Stone Brewing it approved a couple of months ago. It still hasn’t signed the construction contract for the brewery, even though site work on the project is now underway. And it is using the lack of a signed contract as an excuse not to reveal any of the terms. Evidently the public is not supposed to see what it is getting for its money until the deal is irrevocable.
Times-Dispatch

While many Virginians and the editorial pages of many newspapers, including The News & Advance, argued for a total ban on gifts ­— as Central Virginia’s Sen. Steve Newman and Del. Ben Cline voluntarily impose on themselves — and an ethics commission with real enforcement powers, the reforms now taking shape are steps in the right direction. Yes, there are “loopholes” and exceptions, but the package likely to pass the Assembly is better than what existed before, which was absolutely nothing at all. But the debate and political back-and-forth preceding each chamber’s final votes reveals degrees of cynicism and political tone-deafness on the part of many Virginia legislators that is absolutely astounding.
News & Advance

With a few grumblings here and there, we agree with most of the law up to this point. But the new law also creates an ethics advisory panel to oversee mandatory filing of disclosure forms and offer advice on appropriate conduct for officials. That panel, however, has no actual power to investigate misconduct. It’s hard to believe that the legislature would go through the motions to pass new laws and then create no actual oversight to ensure the politicians stick by them. If they were trying to restore voters’ faith in the system, they needed to take that extra step.
Herald Progress

Last week the Senate Judiciary Committee unanimously approved the FOIA Improvement Act of 2015. Like a similar bill in the House, it would require that agencies operate under a “presumption of openness” when considering the release of information and would limit the exemption for so-called deliberative letters and memos — written by policymakers during the decision-making process — to those less than 25 years old. These and other proposed changes in the bills — including a requirement for a single online portal for all requests — don't address all the problems with the FOIA. At some point Congress also must limit the effect of a court decision that lets agencies refuse on privacy or national-security grounds to acknowledge whether a requested document even exists. Nevertheless, this legislation deserves to be passed.
Los Angeles Times