Title: Brechner report
ALL VOLUMES CITATION PDF VIEWER THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00090012/00051
 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: March 2004
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00051
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Downloads

This item has the following downloads:

00003mar2004 ( PDF )


Full Text




THE


BRECHNER

REPORT

Volume 28, Number 3 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofln I ,, 1.a.. U.,1 College ofJournalism and Communications 0 University ofFlorida
March 2004


Court of Appeals

says officer was

justified in arrest
ELEVENTH CIRCUIT-The 1 th
Circuit Court of Appeals ruled that a
Miami police officer was within her rights
when she arrested a cameraman who was
videotaping
COURTS the arrest of
fellow
journalist.
The court said that Officer Jennifer
Pastor was "acting within her
discretionary authority" when she
arrested cameraman Albert Durruthy and
immune to the civil rights lawsuit he filed
against her. Because the state has a law
that prohibits people from walking in the
street when a sidewalk is available,
Pastor had probable cause to arrest
Durruthy, the court said.
In April 2000, during protests over the
U. S government returning Elian Gonzalez
to Cuba, Durruthy saw NBC cameraman
Bruce Bernstein getting arrested. He
began to videotape the arrest, and after
being ordered by police to get out of the
street, began to walk backward toward
the sidewalk. Pastor threw Durruthy to
the ground before he reached the
sidewalk and arrested him for resisting an
officer.
Later, the state attorney dropped
charges, and Durruthy filed complaints
against Pastor and the Miami Police
Department. Pastor's motion to dismiss
the case was denied by the U.S. District
Court in Miami, a decision that the U.S.
Court of Appeals reversed. In his
dissenting opinion of the appeal court's
decision, visiting Judge Norman Stahl
said the arrest was unreasonable and that
Durruthy was "an obvious member of the
media acting within the scope of his
journalistic duties."
Marc Wites, Durruthy's attorney, filed
for a rehearing of the case soon after the
appeal's decisionwas made. (12/19/03)


U.S. Supreme Court dismisses FOIAcase
WASHINGTON- The U.S. Supreme Circuit agreed that the administration's
Court declined to hear an appeal by claim to protect the information from
groups seeking access to the terrorists was "reasonable."
government's records on hundreds of "We have a situation where the
foreigners detained after government arrested more than a
Sept. 11,2001. A C C E SS thousand people in secret, and the
The decision allowed courts have let them get away with
the government to RE CORD S it," Kate Martin, director of the
continue withholding Center for National Security
the names of detainees and information Studies, said about the D.C. Circuit's
about their arrests. The Center for ruling. She said the decision breaks "200
National Security Studies, the American years of tradition in which arrests have
Civil Liberties Union and several media always been public."
organizations had petitioned for the The Justice Department has
release of the information, claiming the recognized that more than 1,200 people
Bush administration was violating the have been detained in connection with
Freedom of Information Act and their the 2001 terrorist attack investigation.
freedom of the press rights. Since 2001, the government has released
Government officials argued that they the names of 100 criminal defendants
needed to withhold the information so while acknowledging that 762 detainees
that terrorist organizations wouldn't are being withheld on immigration
discover their strategies and tactics in charges and 50 are material witnesses.
the war against terrorism. Last year, a Yet, that leaves about 300 people "for
three-judge panel of the U.S. Court of which we never got a clear explanation,"
Appeals for the District of Columbia Martinsaid. (01/13/04)


Group files brief to
FORTLAUDERDALE-The
Reporters Committee for Freedom of the
Press is asking the 11h U.S. Circuit Court
of Appeals to stop the practice of
secretly docketing cases.
In its friend-of-the-court brief, the
national journalists group also asked that
the appeals court require lower courts to
justify the need for secrecy at public
hearings regarding the case of convicted
Colombian drug lord Fabio Ochoa.
"In recent months, it has become
evident that the U.S. District Court for
the Southern District of Florida maintains
a dual, separate docket of public and
non-public cases," the committee's
Executive Director Lucy Dalglish said.
The brief asked the court to decide
whether secret dockets, sealed docket
entries and closed hearings without
public notice violate protections set by


stop secret dockets
the First Amendment. In the appeal, the
journalists group challenged the secret
plea bargain and sentencing of Nicolas
Bergonzoli who did business with Ochoa.
His case did not appear on the court's
public docket where it would have been
scanned into a computer file.
When Ochoa's lawyers were finally
able to unseal parts of the file, he was on
trial and Bergonzoli had already entered a
secret plea bargain and was never called
to testify. Defense attorneys claim that
the court's secrecy blocked their access
to a potentially important witness.
"...the Reporters Committee submits
that an open system of criminal justice
would be far less vulnerable to such an
accusation," the Committee's brief said.
"...as it stands, the mystery enveloping
the proceedings against Bergonzoli...only
adds fuel to such claims." (1/8/04)






ACCESS MEETINGS


Newspaperdrops

commissioners

from violation suit
DAYTONA BEACH The Daytona
Beach News Journal Corp. dropped two
Ormond Beach commissioners from a
lawsuit that accused them of violating
the state's Sunshine Law.
The suit, filed two years ago, said that
Commissioners JeffBoyle, Joyce High
and Jim Privett organized the firing and
rehiring of City Manager Isaac Turner.
The lawsuit focused on comments made
by the three officials to rehire Turner
after voting to fire him less than eight
hours earlier.
The Sunshine Law prohibits officials
from holding secret conversations that
are related to council business. Elected
officials can only discuss city business
at public meetings.
Attorney Jake Kaney, representing the
News Journal, said Privett and High were
dropped from the remaining count of the
lawsuit because their council terms
ended Jan. 6.
The remaining count's purpose is to
prevent commissioners from violating the
Sunshine Law, but after January, "there
will be nothing for the court to enjoin,"
Kaney said.
Boyle remains part of the lawsuit since
he will continue as a commissioner.
Circuit Judge John Watson is slated to
hear the suit against Boyle in April.
After the trial is over, Kaney said he
will consider appealing the circuit court's
decision to dismiss one count of the
original lawsuit.
This count asked the court to declare
that the commissioners violated the
Sunshine Law. (12/29/03)

DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
.i, i. 'ii reported in any issue as
on file" may be obtained upon
request from the Brechner Center for
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, P.O. Box 118400,
University of Florida, Gainesville,
FL 32611-8400, (352) 392-2273.

2 The Brechner Report U March 2004


County School District board officials

unintentionallyviolate Sunshine Law
ST. JOHNS COUNTY St. Johns notice of the meeting was given and he is
County School District officials admitted not sure of the legal ramifications the
they failed to provide notice to the public district could face for the unintentional
about their meeting with legislators and, violation.
therefore, unintentionally violated the "For there to be a violation, board
Sunshine Law. members must knowingly violate the
The meeting was discussed at a law..." he said. "And the board members
previous workshop meeting, which was considered this a workshop meeting,
open to the public, but a written notice which is advertised to the public. What
was never provided to the public or the happened was simply an administrative
media. The Sunshine Law says that the mistake and it's unfortunate."
meetings of public boards or Joseph Joyner, superintendent of
commissions must be open to the public, schools, said everyone is welcome to see
reasonable notice of the meetings must the district's legislative platform.
be given and minutes of the meeting "We took minutes and anyone who
must be taken, wants to have an understanding of what
School Board attorney Tracy was said can contact our district office,"
Upchurch said he thought the written he said. (12/20/03)
Investigation clears officials of violations
BRADENTONBEACH-The State out there was none, and there you have
Attorney's Office decided not to pursue it," former commissioner Scott Barr said.
ethics complaints that accused five local The new commission had placed
leaders of violating the Sunshine Law. Welch and three other department heads
Officers launched an investigation on a 90-day probation to see if they were
after the city's former building official achieving city goals. Welch later
Bob Welch alleged that three city resigned, claiming he couldn't do his job
commissioners and two board members because the commission doubted his
may have committed Sunshine violations, ability and integrity.
misused their positions or lied about their Assistant State Attorney Ed
credentials. According to Bradenton Brodsky's report recommended that the
Beach Det. Sgt. Leonard Diaz, the leaders receive Sunshine Law training.
officials' "lack of knowledge" accounted According to Barr and Board of
for questionable e-mail communications. Adjustment member Ken Lohn, new
After the investigation, the office commissioners and board members
decided not to take action against receive a Sunshine Law manual, but
members named in the complaint, don't have any additional training on the
"He [Welch] reported what he issue.
thought was suspicious activity, turns (1/7/04)
Limbaugh's medicaldocuments resealed
WEST PALM BEACH- The 4th was not clear if they had any time to
District Court of Appeal ordered review them prior to the judge's
prosecutors to hand over radio reversal.
commentator Rush Limbaugh's medical The ACLU joined the case in
records to a circuit January by filing papers in the
court. The documents A CS West Palm Beach circuit court
will remained sealed supporting Limbaugh.
until the appeal is RECORDS Prosecutors claimed they
furtherreviewed. --- needed access to the records
Another ruling said as part of their investigation to
the American Civil Liberties Union determine ifLimbaughviolated
(ACLU) canjoinLimbaugh infighting to prescription drug laws by obtaining
keep the records sealed. The decisions several prescriptions from many
followed two circuit court rulings that doctors. Limbaugh admitted to having
temporarily resealed Limbaugh's records a painkiller addiction, but his
after the prosecution was granted access attorneys argued that seizing his
to the documents on Dec. 22, 2003. It records violates his privacy. (1/14/04)







ACCESS RECORDS CONTINUED

Two thousand child abuse and neglect

records improperly destroyed by DCF
TAMPA According to a state supervised the shredding of the records.
investigation, about 2,000 records on But, more than two weeks before the
child abuse and neglect were destroyed order, he had requested money for the
improperly, job. In addition, the documents were
A branch of the Florida Attorney destroyed after work hours without file
General's Office was responsible for the room managerLisa Vice's awareness.
destruction of the records, including The files were taken from a building
active files with lawyers' notes and other where confidential records were
research documents, according to a state accidentally auctioned off with some old
investigation. Authorities do not know furniture in May 2002. The division
what specifically was lost or how this claimed that the records had been
incident may affect children, destroyed without "malicious intent to
Child abuse and neglect records must harm children" or state government.
be kept for seven years, according to According to Vice, some of the
state law, but the Department of Children records may have been closed, but they
& Families (DCF) keeps them for 50, a contained trial notes and medical records
DCF spokesman said. But, in this case, that wouldn't be filed with the DCF or the
officials failed to keep a log of the courts. If a case were to be reopened,
shredded documents, none of that information would be
"That's where I goofed," Assistant available.
Attorney General and manager of the "The courts don't destroy them," she
state Children's Legal Services Division said. "Why would we destroy them?"
in Tampa and Bradenton Bill Navas said. Navas and First received a written
Navas decided which documents to reprimand from Assistant Deputy General
destroy. Counsel Jerry Curington that they
Navas claimed that he was simply violated a policy "that has been known
following orders to "clean up the files" or should have been known to the
when he and aide Connie Denaro First employee." (01/11/04)

Complaint filed against executive director

for aiding, abetting Sunshine violation
LAKE CITY The State Attorney's violates the law is guilty of a noncriminal
Office filed a civil complaint against the infraction which is punishable by a $500
Florida Crown Workforce Executive fine.
Director for aiding and abetting a Blair said it appeared that Chastain
violation of the Sunshine Law. met with two board members in violation
John Chastain could face a $500 fine, of the Sunshine Law.
but does not meet the requirements for "In this case, the members of the
criminal charges, according to Jerry Blair, board did not commit a willful violation of
state attorney for the the law by attending a
Third Judicial Circuit. AC C E S meeting held without proper
"He is not considered AE notice," he said.
subject to the Sunshine MEETING S Therefore, Blair said, the
Law, which is why he is board members will not be
charged with aiding others charged with violating the
to commit a violation of the Sunshine Sunshine Law.
Law." Blair said. "He is an employee, as Chastain can contest the civil
opposed to a member of the board." infraction, "just like a traffic citation,"
Florida's 2003 Government-in-the- Blair said.
Sunshine manual states that "any "He is assessed the fine if the judge
member of a board or commission or of finds he violated the law or he admits
any state or local agency or authority either through a plea of no contest or
who knowingly violates the Sunshine guilty that he violated the law," Blair
Law is guilty of a misdemeanor of the said. "Thejudge will determine the
second degree." amount of the civil penalty."
In addition, any public official who (12/17/03)


PRIVACY

Case against The

Herald dismissed
MIAMI An appellate court upheld a
lower court's decision to dismiss a
lawsuit against The Miami Herald that
charged the paper with invasion of
privacy, libel and infliction of emotional
stress.
Attorney David Efron filed the lawsuit
on behalf of his 16-year-old daughter
Jennifer, after columnist Joan Fleischman
wrote an article about the teenager's
traffic ticket for careless driving and
citation for curfew violation.
Fleischman also mentioned that Efron
showed up during the issuing of the
ticket with his dinner date, Miami-Dade
State Attorney Katherine Fernandez
Rundle. The column discussed personal
information about Efron and Rundle's
respective pasts. Efron claimed that
Jennifer suffered "extreme and severe
emotional distress" because of the
article. He argued that her rights as a
minor were violated when her name was
printed in connection with the citation.
Sanford Bohrer, the newspaper's
attorney, said that The Herald simply
printed information from a public record.
Efron also alleged that the article in
Fleischman's "Talk of Our Town" column
contained "false and defamatory"
statements abut Jennifer because,
although she did receive a ticket, she was
later acquitted at her traffic hearing. The
traffic court records showed she was
actually found guilty, but adjudication
was withheld because it was her first
offense. (1/1/04)
- THF
BRECHNER
REPORT




I I ,, , ,,I .. Il,

S. l.11I 1.1 .. 11. If Il..

.lll.I i.. hll.. ll h .1 .,ulll( .. .

I, I. I b. I , I I I I
Ih .111 ,. I ... .. 1 I l I I ,I ,, I h ,I.. h Ih


I I I Ii .I I I I I h I
I .,.I1r,,. I i, I ,, h,,.II


The Brechner Report U March 2004 3







LEGISLATIVE PREVIEW


TALLAHASSEE- The state
legislature will consider more than 25 bills
dealing with Florida's Sunshine Law
during this year's session, which
convenes in March.
Below is a list of bills taken from the
Florida Legislature's home page, Online
Sunshine, at hup % %\ \ .leg.state.fl.us/.
Chief sponsors of the bills are in
parentheses next to the bill numbers.

S114 (Committee on Education;
Clary, R-Destin)
Public Records and Meetings
Exemptions Creates exemption from
public records requirements for specified
materials, actual and potential trade
secrets, and information identifying
donors to Florida Institute for Human
and Machine Cognition, Inc.; creates
exemptionfrompublic meetings
requirements for meetings of not-for-
profit corporation or subsidiary at which
exempt records are discussed; provides
for future legislative review and repeal.

S150 (Saunders, R-Naples)
Ethics Code Violations Provides
exemption from public records and public
meetings requirements for proceedings
regarding information or referrals
received by Commission on Ethics
regarding Ethics Code violations;
provides release of such information to
criminal investigative agencies; provides
for future legislative review and repeal;
provides finding of public necessity.

S348 (Committee on Judiciary;
Peaden, R-Crestview)
Personal ID Information Creates
exemptionfrompublic records
requirements; provides confidentiality of
personal identifying information
contained in records for U.S. Attorneys,
assistant U.S. Attorneys, judges of U.S.
Courts of Appeal, U.S. District judges,
U.S. Magistrate judges and their spouses
and children; provides future repeal and
legislative review under Open
Government Sunset Review (OGSR) Act
of 1995.

S410 (Committee on Governmental
Oversight and Productivity;
Bennett, R-Bradenton)
Public Records Exemption- Creates
exemptionfrompublic records
requirements to include building plans,
blueprints, schematic drawings and
diagrams held by public agency and
relating to specified facilities,
4 The Brechner Report U March 2004


developments and structures; provides
exceptions; provides for legislative
review and repeal; provides definitions;
provides statement of public necessity.

S462 (Committee on Health, Aging, and
Long-TermCare)
Child Fatalities Saves exemptions
which are provided for certain records
and meetings concerning child fatalities
from repeal under OGSR Act; deletes
exemption provided for certain records
obtained by hospital or health care
practitioner which relate to child
fatalities; revises penalty applicable to
unauthorized disclosure of confidential
information concerning child fatalities.

S464 (Committee on Governmental
Oversight and Productivity; Health,
Aging, and Long-Term Care)
Employees at Medical Facilities -
Revises public records exemption for
specified information concerning certain
employees of hospitals, ambulatory
surgical centers and mobile surgical
facilities; saves exemptionfrom repeal
under OGSR Act; deletes provisions that
provide for repeal of exemption.

S466 (Committee on Health, Aging, and
Long-TermCare)
Statewide Guardianship Office -
Amends provision regarding public
records exemption for certain records
held by Statewide Public Guardianship
Office; saves exemption from repeal
under OGSR Act; deletes provisions
providing for repeal of exemption.

S468 (Committee on Health, Aging, and
Long-TermCare)
Hospital Board Meeting Amends
provision regarding public meetings
exemption for certain portions of hospital
board meetings; saves exemption from
repeal under OGSR Act; deletes
provisions that provide for repeal of
exemption.

S578 (Fasano, R-New Port Richey)
HealthDepartment Exempts from
public records information and records
reported in Health Departments under
electronic monitoring system for
prescription of controlled substances
listed in Schedules II-IV; authorizes
certain persons and entities access to
patient-identifying information; provides
guidelines for use of such information
and penalties for violations; provides for
future legislative review and repeal;


provides finding of public necessity.

S652 (Fasano, R-New Port Richey)
Law Enforcement Officers Provides
that law enforcement officer's personal
and private records that are in
possession of law enforcement agency
because of complaint investigation are
exempt from disclosure under Public
Records Law; defines term "personal and
private records" for purposes of
exemption; provides for future legislative
review and repeal; provides findings of
public necessity.

S674 (Committee on Health, Aging, and
Long-Term Care)
Home Medical Equipment Provider -
Saves exemption for information
concerning patients of home medical
equipment provider from repeal under
OGSR Act; deletes provisions that
provide for repeal of exemption.

S712 (Committee on Governmental
Oversight and Productivity; Commerce,
Economic Opportunities and Consumer
Services)
Business Records Revises public
records exemption for business records
submitted in eminent domain
negotiations on business damages;
provides for confidentiality; prescribes
information that is confidential and
exempt from disclosure; provides access
by employees of an agency; provides
penalty for disclosure; specifies that
information may be offered in evidence;
provides statement of public necessity.

S1054 (Smith, D-Gainesville)
Public Records Modernization TF -
Recreates trust fund without
modification; carries forward balances
and continues sources and uses thereof.

S1162 (Committee on Communication
and Public Utilities)
Wireless 911 Board Information-
Amends provision regarding exemption
from public records requirements
provided for proprietary confidential
business information held by Wireless
911 Board or State Technology Office;
saves exemptionfrom repeal under OGSR
Act; deletes provisions that provide for
repeal of exemption.

S1460 (Campbell, D-Tamarac)
Crime Lab Personnel Public Records -
Creates exemptionfrom public records
requirements; provides confidentiality of







LEGISLATIVE PREVIEW CONTINUED


personal identifying information
contained in records of personnel of
crime laboratory or medical examiner's
office and their spouses and children;
provides for future repeal and legislative
review under OGSR Act of 1995; provides
statement of public necessity.

S1592 (Siplin,D-Orlando)
FCAT Parents' Review Allows
student's parent or guardian and
accompanying assistant to review
questions and student's answers to
those questions on Fla. Comprehensive
Assessment Test and other state-
required academic assessment tests;
requires Department of Education to
ensure that department and school
districts honor requests for such review;
provides for damages for violations;
provides for costs and attorney's fees
incurred in seeking compliance and
payment of damages.

S1626 (Margolis, D-Miami Beach)
Archival Material Public Records -
Provides exemption from public records
requirements for manuscript or other
archival material donated to and held by
official archive of municipality or county
and subject to special terms and
conditions that limit right to copy or
inspect manuscript or material; requires
that such manuscript or other archival
material be made available for inspection
and copying after specified period or
pursuant to court order.

S1660 (Fasano, R-New Port Richey)
Stroke Treatment Centers Public
Records Creates exemption from public
records requirements for certain
documents produced by certified stroke
treatment centers; exempts portions of
meetings or proceedings at which
records or reports concerning specific
patients are discussed from public
meeting requirements; provides for future
legislative review and repeal; provides
findings of public necessity.

S1678 (Committee on Governmental
Oversight and Productivity)
Public Records Authorizes petition
for order to make public records
pertaining to certain investigations by
the Department of Children and Family
Services; provides certain restrictions
regarding electronic recordkeeping
systems and proprietary software;
provides that reproductions from
electronic recordkeeping system of


specified documents and records of the
Department of Insurance shall be treated
as originals for purpose of their
admissibility in evidence.

H147 (Ambler, R-Tampa)
H. Lee Moffitt Center Expands public
records exemption for proprietary
confidential business information owned
or controlled by H. Lee Moffitt Cancer
Center and Research Institute to include
information regarding methods of
manufacture or production, potential
trade secrets, potentially patentable
material and proprietary information
received, generated, ascertained or
discovered during course of research.

H317 (Reagan, R-Sarasota)
Public Records Exemption Creates
exemptionfrompublic records
requirements for building plans,
blueprints, drawings and diagrams held
by public agency and relating to
specified facilities, developments and
structures; provides retroactive
application of exemption; provides
exceptions and definitions; provides for
legislative review and repeal; provides
statement of public necessity.

H399 (Harrell, R-Port St. Lucie)
Health Department Information -
Exempts from public records
requirements information and records
reported in Health Department under
electronic monitoring system for
prescription of controlled substances
listed in Schedules II-IV; authorizes
certain persons and entities access to
patient-identifying and practitioner-
identifying information; provides
guidelines for use of such information
and penalties for violations; provides for
future legislative review and repeal.

H433 (Gibson, R-The Villages)
Law Enforcement Officers Provides
that law enforcement officer's or
correctional officer's personal and
private records in the possession of a law
enforcement agency or a correctional
agency because of complaint
investigation are exempt from disclosure
under the Public Records Law; defines
the term "personal or private record" for
purposes of exemption; provides for a
future legislative review and repeal;
provides findings of public necessity.

H565 (Clarke, R-Sarasota)
Public Records and Meetings


Exemptions Exempts from the public
records and public meetings
requirements of certain records of Florida
Self-Insurers Guaranty Association,
Incorporated, and the meetings of board
of directors of association; provides for a
future legislative review and repeal;
provides findings of public necessity.

H593 (Evers, R-Milton)
Personal ID Information- Creates
exemptionfrompublic records
requirements; provides for confidentiality
of personal identifying information
contained in records for U.S. Attorneys,
assistant U.S. Attorneys, judges of U.S.
Courts of Appeal, U.S. District judges,
U.S. Magistrate judges and their spouses
and children; provides for future repeal
and legislative review under OGSR Act;
provides statement of public necessity.

H619 (Kendrick, D-Carrabelle)
EMTs' Personal Information -
Provides exemption from public records
requirements for home addresses,
telephone numbers, social security
numbers and photographs of active or
former emergency medical technicians or
paramedics certified in compliance with
specified provisions, home addresses,
telephone numbers, social security
numbers, photographs and places of
employment of spouses and children of
such EMTs and paramedics.

H621 (Ambler, R-Tampa)
Financial Regulation Office- Creates
exemptionfrompublic records
requirements for information obtained by
Financial Regulation Office of Financial
Services Commission in connection with
investigations under Florida Consumer
Finance Act; provides privilege against
civil liability for persons who furnish
information or evidence to office;
provides statement of public necessity.

H635 (Vana, D-WestPalmBeach)
Children's Recreation Program-
Provides an exemption from public
records requirements for names, home
addresses, telephone numbers, social
security numbers and photographs of
children who participate in
government-sponsored recreation
programs or camps, names and locations
of schools attended by such children,
and names, home addresses, telephone
numbers and social security numbers of
the parents or guardians of such
children.
The Brechner Report U March 2004 5



























Phase two:Justice delayed
This is the second in a series of articles concerning
the results of the federal Freedom ofInformation Act
audits conducted by the National Security Archive.
IIn


The admonition that "Justice Delayed is Justice
Denied" has particular significance when applied to the
federal Freedom of Information Act (FOIA). As
President Lyndon Johnson recognized when he signed
the Act into law in 1966, FOIA "springs from one of our Meredi
most essential principles: A democracy works best when
The the people have all the
Bk P g information that the security of
B ack P Lage the Nation permits." With such
lofty goals, it is not surprising
By Meredith Fuchs that Congress initially imposed
a 10 business day time limit on federal agency responses to FOIA
requests (now 20 business days). Yet, when FOIA requesters
instead are forced to wait 5, 10, or even 15 years to get a
response to an inquiry about government activities, the public's
opportunity to impact those activities is effectively denied.
Phase Two of the National Security Archive's FOIA Audit
showed just such a breakdown in the administration of FOIA.
While the federal agencies report ever growing numbers of FOIA
requests being processed more quickly each year, these statistics
mask the true state of affairs. After finding that the response
times and backlog numbers reported by government agencies
were far out of line with the Archive's own experience as a
frequent FOIA requester, the Archive asked 35 federal agencies
that handle over 97% of the FOIA requests for their 10 oldest
pending requests. The Archive found that many agencies have
long-unanswered requests that are either ignored or avoided.
Specifically, the Archive found that the oldest unanswered
FOIA requests in the U.S. government date back to the late
1980s, before the collapse of the Soviet Union. These include a
1987 inquiry from San Francisco Chronicle reporter Seth
Rosenfeld on FBI activities at the University of California at
Berkeley in the 1960s. Other old outstanding requests dating to
the 1980s came from the Lancaster, Pennsylvania Intelligencer
Journal, The Nation magazine, ABC News, the National Security
Archive and a graduate student at the University of Southern
California, who now is a full professor.
These extreme delays undercut the purpose of the FOIA,
making it impossible for the Act to serve the purpose of


I
h


dis justice denied
informing the electorate and permitting public debate. It
certainly serves the purpose of discouraging journalists
and others working on a deadline from using the FOIA.
The Audit also raises a larger question of how we
can ever hope to improve the FOIA when the principal
tool for assessing how it is administered the agencies'
annual reports to Congress are so flawed that they
hide the existence of these extreme backlogs. Not only
Fuchs do the median processing times that are reported give
no hint that such aged requests are still pending (or the
average time a FOIA requester can expect to wait), but they do
not include the delays from referrals to other agencies or
wrangling over fees, which can add months to the process.
In addition, agencies have inflated the number of apparent
FOIA requests by logging as FOIA requests a range of inquiries,
including Privacy Act requests. Generally speaking, a Privacy
Act request is for personnel, medical or other easily identifiable
and locatable records. The result of this policy is that some
agencies' annual FOIA reports document remarkably high
numbers of FOIA requests and, often, remarkably short
processing times. This is best illustrated by the Department of
Veterans Affairs' reported 1,496,191 FOIA requests for 2002
compared to its 210,371 requests for 1998.
The irony is that the resulting claim that federal agencies are
processing ever growing numbers of requests at a faster rate
makes it even more outrageous that there are requests that have
been pending over 15 years. If millions of requests can be
processed in one year, how come one request from a journalist
about a matter of significant public concern cannot be
completely processed in 15 years?
There is no real remedy for the waiting FOIA requester. They
can file a lawsuit, and the court will impose a schedule on the
agency to complete the processing of the request. But, the
hurdle of initiating litigation certainly was not what was intended
by Congress when it sought to open the government to the
public.
Meredith Fuchs is the General Counsel of the National
Security Archive, a non-profit research institute in
international affairs and a public interest law firm defending
and expanding public access to government information
;i,. ilji, the FOIA. A full copy of Phase Two of the FOIA audit
can be found on its Web site at www.nsarchive.org.




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs