A Magazine by the Society of Professional Journalists

FOI In Brief

By Quill

Ashcroft urges caution with FOIA requests

Obtaining government records might become more difficult under a Bush administration policy change made a month after the Sept. 11 terrorist attacks. According to The Washington Post, Attorney General John D. Ashcroft directed agency leaders to use caution in releasing records to journalists and others. He said agencies must “carefully consider” issues such as threats to national security and the effectiveness of law enforcement.

“Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests” that could be implicated, Ashcroft said in a memo released Oct. 16.

Ashcroft also said agencies that legitimately turn down requests made under the Freedom of Information Act will have the backing of the Justice Department.

Under the FOIA, reporters and others can obtain unclassified government records that officials otherwise would not release. Journalists have used the law to reveal government wrongdoing and abuses.

Caesar Andrews, editor of Gannett News Service and president of the Associated Press Managing Editors, said public access should not be weakened.

“We certainly understand that during these very volatile and sensitive times there will be information that needs to be kept classified,” he said. “At the same time, given the same volatile environment, there is a tremendous need for the public to have access to certain information.”

Ashcroft said the Bush administration is committed to complying with the FOIA so Americans “can be assured neither fraud nor government waste is concealed.”

He added that access to information must be balanced with other issues, including national security and the protection of business information.

Pentagon rescinds ban on releasing soldier names

The Pentagon will soon rescind its policy of not allowing reporters to identify by full name military personnel who are interviewed in the field, Rear Adm. Craig Quigley announced Oct. 17 during a Newseum panel discussion in Arlington, Va. Quigley, deputy assistant secretary of defense for public affairs, made the announcement after Susanne Schafer, who covers the Pentagon for The Associated Press, questioned the efficacy of the policy.

Schafer complained that a press pool had not been activated and reporters were not allowed to accompany ground forces near Afghanistan.

“When you’re out with the military in the field, they want you there,” she said. “You are a boost to their morale.”

Quigley replied that about 40 individuals from different news organizations were out on aircraft carriers and that his office was moving to get them on to amphibious ships launching missions.

Marine Corps Commandant Gen. James L. Jones said he was committed to the American public’s right to know what the armed forces are doing. “As a general concept in a democratic society, I believe it’s incumbent on all of us to make sure the public is informed … but there has to be a firewall with operational risk and current operations that affect the safety of troops and mission,” he said.

Quigley praised the Pentagon press corps as a group of “very good journalists who have a good and sound understanding of the delicacies of covering [military operations] … and who are concerned about the men and women whose lives they cover.”

The panel discussion on “The Military and the Media” was moderated by Peter S. Prichard, president of The Freedom Forum and Newseum. It was one in a series of programs held in conjunction with the Newseum’s War Stories exhibit, which was on display through Nov. 11.

Audit: Washington state officials withhold data

A statewide audit of local public agencies in the state of Washington found dozens of government employees who violated state law by withholding documents that the law says they must release.

Reporters and other staffers from 26 news organizations began posing as ordinary citizens in June and requested lists of registered sex offenders, reports on crimes, home values, school superintendent contracts and restaurant inspections from agencies in all 39 Washington counties. The survey was the first of its kind to examine Washington’s Public Records Act, according to The Associated Press.

A public record is defined as any document prepared, owned, used or kept by a state or local agency. Such records are presumed to be public, unless specifically exempted from disclosure by law.

Florida approves secret committee meetings

Florida senators will now be able to meet secretly to discuss state security, terrorism and espionage. The controversial measure passed by a voice vote on Oct. 25, meaning no record was kept of how each member voted. It became effective immediately.

The Senate president now will have the unprecedented power to let members meet in secret.

“Hopefully, we’ll never have to invoke it,’’ Senate President John McKay told The Miami Herald.

Under the rules, the Senate president could close meetings called to discuss “security, espionage, sabotage, attack and other acts of terrorism after talking to police, public health or security ‘authorities.’”

Despite efforts to soften the rules by requiring the disclosure of committee member votes, access advocates are still worried that the decision chips away at the state constitution, which calls for keeping all aspects of lawmaking public.

The Senate did not approve an earlier version that would have kept committee votes secret and sealed the records for up to five years. Under the current legislation, the votes would be public and the Senate president would have 30 days to decide whether the records for the committee needed to remain secret. Otherwise, they would be open to the public.

But advocates for Florida’s Government in the Sunshine law said the changes aren’t enough.

“It doesn’t make much difference,” said Barbara Petersen, executive director of the Tallahassee-based First Amendment Foundation. “The meetings are still closed, and the records are still closed.”

Florida Gov. Jeb Bush told The Herald he was puzzled by the Senate’s zeal for secrecy. “I can see certain things being done, certain exclusion of public records as it relates to criminal investigations,” he said. “I don’t think we need to necessarily change our public processes to accomplish that.’’

Florida student newspaper again attacks autopsy photo law

The lawyer for the University of Florida’s student-run newspaper argued in appeals court documents filed Oct. 16 that the new state law restricting access to autopsy photos is unconstitutional.

Attorney Tom Julin, who represents the Independent Florida Alligator, maintained that the law should not apply to the newspaper because its request for access to autopsy photos of race-car driver Dale Earnhardt was made before the law was passed.

Meanwhile, lawyers for Earnhardt’s widow, Teresa Earnhardt, are arguing that the law is constitutional.

Earnhardt’s death on the last lap of the Daytona 500 in February prompted an intense legal battle to seal autopsy photographs, traditionally a public record, because of privacy concerns. After a three-day trial, Circuit Judge Joseph G. Will denied the Alligator and a DeLand Web site operator access to the photos, ruling that privacy was paramount.

The law bars medical examiners from using photos for education, training or medical research. Medical examiners can overcome this by obtaining a family’s permission to use the photos or by getting a court order proving there is “good cause” for using the photos.

According to The Orlando Sentinel, Julin’s 50-page filing with the 5th District Court of Appeals in Daytona Beach repeated his earlier arguments that the law is unconstitutional for various reasons, including a provision that made the law retroactive. He also argued that no other legal ruling has ever found that inspecting or copying autopsy records is an invasion of privacy and that access to the photos serves a public purpose.

“Access to autopsy reports helped to ensure that the medical examiner did his job correctly and inspired public confidence in conclusions reached by the medical examiner,” Julin wrote.

A ruling on the appeal isn’t expected for months.

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