Month: March 2010

Court: Pentagon Disclosed Way Too Much Info

PUBLIC INFORMATION — "Most criticism of the Freedom of Information Act centers on agency refusals to disclose requested records in a timely manner, notes federal secrecy-watcher Steven Aftergood.  "But a federal appeals court said this week that a Defense Department agency was 'arbitrary and capricious' in its decision to release documents to a Freedom of Information Act requester."  The embarrassed parties: defense contractors Sikorsky Aircraft and Pratt & Whitney. The ruling comes shortly after the release of several new evaluations of government compliance with the Freedom of Information Act by the National Security Archive, the Associated Press, and Citizens for Ethics and Responsibility in Washington.  Each of these independent efforts found that FOIA performance in the first year of the Obama Administration in one way or another had fallen short of the Administration’s proclaimed standard of “unprecedented openness.”  Each report identified questionable patterns in some agencies’ handling of FOIA requests, mostly involving the frequency of denials, the persistence of backlogs of unanswered requests, and haphazard implementation of new Obama FOIA policies. None of the critics complained of excessive disclosure.  But a federal appeals court this week ruled (pdf) that the Defense Contract Management Agency (DCMA) had been too forthcoming and had tried to disclose information in response to a FOIA request that arguably should be withheld. After the DCMA granted a FOIA request in 2005 to release certain audit...

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Berkeley Residents Seek Initiative on Sunshine

OPEN GOVERNMENT — "After a couple of weeks of negotiating with the city bureaucracy the Berkeley Sunshine Ordinance has cleared all of the hurdles for circulating an initiative," reports ordinance organizer Dean Metzger in the Berkeley Daily Planet. "Due to the lack of support from our city elected officials and city staff, the committee felt that the only way to get real sunshine (open government) in Berkeley was to circulate the ordinance as an initiative and place the ordinance on the November 2010 ballot." Metzger continues: The initiative is now being circulated to get the required signatures. The highlights of the ordinance are as follows. Meetings Assures that meetings take place when and where people are most able to attend. Keeps decision making in the open for the City Council, Rent Board, Library Trustees and all City boards, commissions and committees. Opens up to the public committees and subcommittees that formerly were not subject to noticing and minute keeping requirements. Gives the public the right to know how their representatives voted in Closed Sessions even if motions were not approved and no action taken. Requires enough City Council meetings so that meetings adjourn around 11:00 p.m. Provides an orderly meeting structure so that you know in advance how much time you have for your comments. Ensures adequate time for decision makers to hear from the public and study relevant...

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State Senate Gives Sunshine Law Its Own Forum

OPEN GOVERNMENT — The Senate Rules Committee has approved a request by Senator Leland Yee (D-San Francisco/San Mateo) to establish a Select Committee on California’s Public Records and Open Meeting Laws, of which Yee will chair.  Select committees study complex issues rather than considering particular bills, but their work may lead to legislation. “I am looking forward to chairing this select committee and ensuring that state and local government agencies adhere and embrace our transparency laws,” said Yee.  “This committee will examine ways to increase public access to government documents and proceedings, and will protect tax dollars by fostering greater accountability of scarce public resources.” “While California may have some of the best open government laws, we do not have the best rates of compliance by public agencies,” said Yee.  “It is disheartening to see so many cases in which members of the public or media outlets are denied government records, especially at a time when it is so critical that tax dollars are spent wisely.” What others are saying: “With this action right on the heels of Sunshine Week, the Legislature could not give better recognition to the reality that governmental transparency has now become a concern worthy of the continuing study and review of policy-makers at the highest level.  From our perspective, the number one issue is the fact that the open meeting and public information laws can be enforced...

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Court: No Soliciting Donations inside LAX Terminal

FREE SPEECH — The California Supreme Court today upheld a Los Angeles International Airport ordinance barring Hare Krishnas from soliciting donations within airport terminals, reports Will Buchanan for the Christian Science Monitor.  They can speak about their beliefs inside, but not seek money. This ruling is apparently the final defeat in 13-year legal effort by the International Society for Krishna Consciousness (ISKCON) to secure the right to solicit in LAX airport under the First Amendment. But after two decades of legal challenges against similar measures in other airports nationwide, it also points to the religious organizations' narrowing legal options. The California Supreme Court ruled unanimously that the LAX restriction on solicitation is constitutional. The Hare Krishnas' lawyer, David Liberman, told the Associated Press that this may be the end of the legal line. “It’s pretty conclusive, and it doesn’t look like there are any loopholes,” Mr. Liberman said. “As far as I can tell, it’s over.” The Hare Krishnas' legal trail has stretched back over two decades. In 1992, ISKCON brought suit against New York City airports claiming that a ban on solicitation in terminals violated their First Amendment right to free speech. After winning in district court and losing in circuit court, ISKCON lost its case in the US Supreme Court. The Supreme Court ruled 6 to 3 that the city’s prohibition was constitutional because an airport terminal...

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Judge Balks at Releasing State Bar Exam Data

PUBLIC INFORMATION — Mike McKee, reporting in the San Francisco Recorder, notes that UCLA law professor Richard Sander's long-proposed study of law school affirmative action policies' effect, if any, on California State Bar examinations' pass rates met another obstacle recently. In a tentative opinion, San Francisco Superior Court Judge Curtis Karnow concluded that the documents Sander seeks—historical data on past bar exams—don't fall within the scope of documents traditionally subject to public disclosure. "None of the data at issue is presented to a court and none ever is used in any form of adjudicatory proceeding," he wrote in Sander v. The State Bar of California, 508880, "even within the confines of the State Bar with respect, for example, to how any applicant is processed. "That is," he added, "even were I to expand the notion of 'adjudication' to reach the work of the State Bar in evaluating its applicants, the data sought by Sander would not qualify." Sander and the San Rafael-based First Amendment Coalition, a co-plaintiff in the case, would get a chance to change Karnow's mind during a hearing. Sander has tried to obtain the State Bar data for four years in an effort to build on his own 2004 study (PDF) that suggested racial preferences might contribute to black students' high bar-exam failure rates nationwide. He hypothesizes that affirmative action gave minority students access to elite...

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