As early as this fall, the U.S. government could have in place an interagency project using up-to-date technology to implement the Freedom of Information Act.

New technologies could increase proactive disclosure, speed responsiveness and cut backlogs. -db

From a commentary in OMB Watch, February 7, 2012.

Full story

Newspaper associations and public interest groups are protesting a move by the Obama administration to withhold a data bank created by Congress in 1986 to assist hospitals and state licensing boards to check doctor’s records for discipline and malpractice.

The records had been useful in creating laws to protect the public as reported by Blythe Bernhard and Jeremy Kohler in the St. Louis Post-Dispatch.”The Post-Dispatch used the public file last year in an investigation of the lax and secret system of doctor discipline in Missouri. The investigation led to a new law that gives the state healing arts board more power and gives patients more information about their doctors,” they wrote.

From the St. Louis Post-Dispatch, September 15, 2011, by Blythe Bernhard and Jeremy Kohler.

Full story

Why is okay to withhold information transferred to electronic format when the same information in document form is available under the California Public Records Act( (CPRA)? That is the question the California Supreme Court will consider in reviewing a Court of Appeal decision that Orange County could charge the Sierra Club $300,000 for the Orange County GIS basemap of public property information, effectively blocking public access.

The lower court had ruled that transferring the property data to “computer software” qualified the data as an exemption to the CPRA. -db

From a commentary for the Electronic Freedom Foundation, September 16, 2011, by Mark Rumold.

Full story

California’s Attorney General Kamala Harris demonstrated the long reach of the state’s open meeting law, the Brown Act,  in her opinion that for majority of a Southern California city council to take an invitation-only tour of a Northern California water district facility would be a violation of the law.

Harris also said that even if properly noticed and inclusive, holding a meeting at such a distance from the city would limit public access and further pose a problem under the Brown Act. -db

From the Metropolitan News-Enterprise, August 30, 2011, by Kenneth Ofgang.

Full story

After Miami Beach police shot and killed a suspect on a public street, they allegedly confiscated a video devise from a witness Narces Benoit and roughed up him and his girlfriend in the process. The police said Benoit was seized as a witness and denied that they stomped on his cellphone.

Free press supporters say unless Benoit had posted it on YouTube, the public would never have known the details of the police shooting since new Florida law passed June 2 exempts  photographs, video and audio recordings depicting or recording the “killing of a person” from public records disclosure laws.

From The Reporters Committee for Freedom of the Press, June 8, 2011, by Clara Hogan.

Full story

In an editorial the San Jose Mercury News argued that current law requires state legislators to open their appointment calendars to public scrutiny. The editorial stated that with 40 percent of legislation introduced in the last two-year session written by special interests, it is essential for the public to know how this happens and the people who make it happen.

The editorial said that both the San Jose City Council and mayor have been posting their calendars for years with no ill effects, discrediting arguments that security requires secrecy. -db

From an editorial in the San Jose Mercury News, May 5, 2011.

Full story

California legislators have rejected a request from media and open government groups to open their appointment calendars to the public. In a letter denying the request, the legislators said they could not provide information on appointments out of “concerns regarding privacy, security and legislative privilege.”

The refusal may be challenged in court. The San Jose Mercury News is seeking appointment calendars as part of a project showing that lobbyists and special interests are writing and guiding laws through the legislature. -db

From the San Jose Mercury News, May 4, 2011, by Karen de Sá.

Full story

Research by a Brigham Young professor revealed that newspapers are behind almost every court case and law promoting public access and open government. With newspaper revenues shrinking, it is not guaranteed that as bloggers take over much of the reporting that they will be able to challenge government agencies.

The online news publication ProPublica that does investigative reports is fortunate to have pro bono legal work, but others may have to bank on greater transparency from government and help from nonprofits and universities. -db

From the Daily Herald, April 24, 2011, by Heidi Toth.

Full story

In a guest commentary in The Salt Lake Tribune, Brigham Young professor Joel Campbell says that a proposed new public record request law in Utah would hurt public access to records. “[The law]…would not only pay fees to cover the ‘actual cost’ of providing the records, but it also added new charges for overhead and administration. That would have undone Utah GRAMA’s current and narrowly drawn ‘actual cost’ provision, which is among the best in the United States.”

The proposed law would also allow public officials to decide what is “readily accessible”, creating a huge loophole that could be used to decimate chances of retrieving records. -db

From a commentary in The Salt Lake Tribune, April 23, 2011, by Joel Campbell.

Full story

The 9th Circuit Court of Appeals has granted MediaPost’s request for a court document with details of Google’s compliance with an order for it to deactivate a Gmail user’s account. The court ruled the district court had not made the case that the public had no right to access the report.

The dispute originated with a bank who had mistakenly sent sensitive customer data to a Gmail address and asked Google to provide information about the account holder which under the terms of its privacy policy Google refused to divulge without a court order. -db

From MediaPost, April 18, 2011, by Wendy Davis.

Full story

The Federal Judicial Center released a guide for federal judges deciding whether to seal court records and proceedings.

The 22-page booklet includes a history of case law on secret proceedings and a list of First and Sixth Amendment issues. -db

From The Reporters Committee for Freedom of the Press, February 25, 2011, by Lyndsey Wajert.

Full Story

The Wall Street Journal has filed to overturn a longstanding injunction that blocks access to records of Medicare fraud and the doctors implicated in the fraud. -db

Dow Jones
Press Release
January 25, 2011

NEW YORK – The publisher of The Wall Street Journal filed court papers today to overturn a 31-year-old court injunction that blocks public access to records containing evidence of Medicare fraud and the doctors behind it.

The filing by Dow Jones & Company, in the U.S. District Court for the Middle District of Florida, seeks to overturn an injunction obtained by the American Medical Association in 1979. The injunction prevents the public from knowing how much taxpayer money individual doctors receive from the Medicare program. As a result, The Wall Street Journal and other news organizations are barred from fully investigating and exposing abuses in the $500 billion system.

The legal action follows a series of articles in The Wall Street Journal last year, “Secrets of the System,” that relied on a sampling of the government’s closely guarded Medicare databases.  The series highlighted suspicious billing, potential abuses of the system and the government’s role in policing Medicare payments.

However, the 1979 injunction constrained the Journal’s investigation and what it could tell its readers because it limited the Journal to only a subset of the data.  In addition, the government would only release the limited subset of data if the Journal agreed not to disclose the identities of individual doctors in the databases.

“It is time to overturn an injunction that, for decades, has allowed some doctors to defraud Medicare free from public scrutiny,” said Mark H. Jackson, general counsel for Dow Jones.  “The public has a significant interest in learning whether doctors are fleecing the system, the extent of the problem, and whether the government has been effective in stopping such abuse.”

This effort will not compromise patient confidentiality, Jackson added.

“The Medicare system is funded by taxpayers and yet taxpayers are blocked from seeing how their money is spent,” said Robert Thomson, editor in chief of The Wall Street Journal.  “It is in the interests of law-abiding practitioners that those who are gaming the system are exposed.  Unless funds are used efficiently and intelligently, the health of the nation, physically and fiscally, will be undermined.”

The Journal series revealed how Medicare reimbursement policies and doctors’ relationships with private companies in the industry could be giving doctors an incentive to bill for unnecessary and high-cost procedures.  It also reported on several doctors with questionable billing practices, including one doctor who took home more than $2 million from Medicare in 2008 by billing for an improbable number of obscure medical tests and another who received more than $8.1 million from Medicare over three years while treating a suspiciously high percentage of patients with an extremely rare condition.  Because of the injunction, neither doctor could be named in the articles.

The law firm of Davis Wright Tremaine LLP is representing Dow Jones in this matter.

Santa Ana residents are finding it difficult to address the city council on matters of concern since the council always starts their meetings in closed session with no set time for resurfacing for the public session. -db

Voice of OC
October 7, 2010
By Norberto Santana, Jr.

Santa Ana resident Mike Tardiff has a couple simple requests for the members of his City Council. He would like them to start their regular meetings in public, and allow public comment before they adjourn to closed session.

It is a request that just about every City Council in Orange County would have no problem granting. But it’s a problem in Santa Ana, where members always start their meetings in secret.

On Monday, Tardif sat outside the eighth floor offices of the city manager, where the City Council was preparing to begin its closed session portion of the regular meeting, hoping to be able to plead his case before the closed session started.

He never got the chance. So later in the evening he addressed the council from the podium during the public part of the meeting.

“This is very inconvenient for Santa Ana residents,” Tardif said, adding that Santa Ana residents — unlike those across the rest of Orange County — aren’t even given the courtesy of knowing what time their regular council meeting starts.

“We don’t know if the council will start at 5:15, or 6:15 or 6:30 p.m.,” he said. “Not having a regular time for public speakers discourages those from addressing their elected officials.”

Even cities that hold a closed session before the public session usually convene in open session and then retire to closed session after hearing public comments about the closed session.

Santa Ana’s curious approach means that a resident can never really be sure when the council meeting starts. Many residents say they feel as if that’s exactly what council members want.

“It’s very frustrating, and often it’s done to thin out the audience,” said Peter Katz, 62, who has lived in Santa Ana for 30 years.

The practice is a major concern to open government advocates.

“I don’t think there’s any way you can achieve the Brown Act’s requirement to allow public comment on items in closed session without first convening in open session,” said Terry Francke, Voice of OC’s open government consultant and general counsel of the First Amendment advocacy organization CalAware.

According to Francke, the Brown Act says in general that there must be an opportunity on the agenda to address the body on anything that is on the agenda before or during the item being considered by elected leaders.

The only way to reconcile that with a closed session is to provide an opportunity before, Francke said.

“The closed session is part of the regular meeting,” he said. “And the regular meeting has to open in public session.”
He also said that Tardif has a point when he says that council members should have a set hour for the public meeting and says state law backs him up. “They have to state and stick to a fixed hour at which meetings will commence,” Francke said.

Francke said the violations were serious, adding that “these things are worthwhile bringing to the district attorney’s attention.”

Copyright 2010 Voice of OC | Orange County’s Nonprofit Investigative News Agency, Santa Ana, CA.
FAC Content Use Policy

A citizen accused the Morgan Hill mayor of violating California’s open meeting law when the mayor refused to allow him to speak during a recent city council meeting. The mayor said the man couldn’t speak because he did not fill out a speaker card and give it to the clerk at the start of the meeting. -db

Morgan Hill Times
August 3, 2010
By Michael Moore

Morgan Hill Mayor Steve Tate said he did not violate the Brown Act when he declined to let an audience member speak at a recent city council meeting.

The audience member – Morgan Hill resident Art College – claimed at the following meeting that the mayor’s refusal to let him speak during a “public hearing” portion of the July 21 meeting was in violation of the state’s opening meetings law as well as the city’s policy.

College, who has since announced his intention to run for Tate’s mayoral seat, said at that meeting he raised his hand to speak in response to an item on the meeting agenda that related to the Santa Clara County weed abatement program.

However, Tate told him because he did not fill out a yellow “speaker card” and hand it to the clerk at the beginning of the public hearing, that he could not speak.

Such a requirement is unlawful according to state laws that allow all citizens the chance to speak or otherwise present information at city council meetings, as well as laws that protect the anonymity of those who wish to speak, College said. He cited the state law that says providing personal information is voluntary.

“No attendant at a city council meeting can be denied the right to speak on any issue before the city council on the grounds that they must first fill out a speaker card to approach the podium and speak,” College said during the public comment portion of the July 28 council meeting.

The city has 30 days, from the time College’s complaint was made, to respond or correct the open meetings violation, College noted.

Copyright 2010 Morgan Hill Times

Los Angeles County District Attorney staff members say they enforce the Brown Act aggressively but seek compliance rather punishment and has only had to bring two civil suits to enforce the act in the last eight years. They urge public officials to embrace the act rather than treat it as an obstacle. -DB

Metropolitan News-Enterprise
October 2, 2009
By Kenneth Ofgang

The District Attorney’s Office aggressively enforces the state’s open meetings law for local public agencies with an aim of gaining compliance, not to punish anyone or entangle itself in local politics, District Attorney Steve Cooley and two top deputies said yesterday.

“We are not trying to squeeze [people] into an overcrowded county jail system for a violation of the [Ralph M.] Brown Act,” Cooley told an audience of elected officials, attorneys, and government staff members. The occasion was a “Brown Act Enforcement Educational Forum” at the Metropolitan Water District’s downtown boardroom.

Cooley was the leadoff speaker among the panelists at the event which was sponsored by the County Prosecutors Association in conjunction with the District Attorney’s Criminal Justice Institute.

‘No Institutional Memory’

Cooley said that when he became district attorney, there was no set of procedures and “no institutional memory” as to how to handle Brown Act violations. “We had a clean slate” to write on, he explained, when the office handled its first Brown Act case of his tenure, which began with a complaint over a closed meeting held by the Los Angeles Unified School District board to discuss plans for the Belmont Learning Complex.

The board initially claimed it had relied properly on the act’s litigation exception, but eventually rescinded the action taken in closed session and held a public meeting on the issue.

Cooley said local government attorneys have told him “Thank you for being the bogeyman” who frightens officials into taking their own lawyers’ advice on what they need to do to comply with the act.

David Dermerjian, who head the district attorney’s Public Integrity Division, explained that the office receives about 40 Brown Act complaints per year. About half are closed after 30 days, usually because there is clearly no violation, while one-fourth are closed after a more extensive investigation and the rest result in a “cure and correct,” or “knock it off,” letter, Dermerjian explained.

Only Civil Suits

Those letters are almost always sufficient to redress any violation, he said. The office has brought only two civil suits, which were settled, in the last eight years, he explained, and has never brought a criminal prosecution for violation of the Brown Act.

Dermerjian said that to the best of his knowledge, there has never been a criminal prosecution anywhere in the state in the nearly 60 years since the law was enacted.

The prosecutor detailed a series of “myths” that some local officials have about Brown Act enforcement, including that “we are unaware we are being used for political purposes.” His office is fully aware that people complain about supposed open-meetings violations because they have agendas, he said, but “we just don’t care.”

Other such myths, he said, are that the office isn’t interested in local officials’ side of the story; that it seeks to embarrass their agencies, in part by instigating publicity; that it doesn’t understand the difficulties of running a government agency; and that “we don’t know what it’s like to deal with the public gadfly.”

In fact, Dermerjian said, his division is always willing to consider local officials’ responses to complaints, as long as they are in writing so that they can be made accessible to the public. Prosecutors will not meet privately with officials, however, because there is “something unseemly” about having a secret meeting to discuss an allegation that the person you are meeting with participated in an illegal secret meeting, he said.

Deputy District Attorney Jennifer Lentz Snyder, who is Dermerjian’s assistant head deputy and the office’s designated expert on the Brown Act, who explained that because the focus is on compliance and not punishment, the office does not consider an official’s intent or state of mind, but only whether someone’s conduct has violated the statute.

She cautioned, however, that many complainants do not understand the limited scope of the act, and think that it can be used to enforce procedural rules and redress general “due process” concerns about how local bodies do business. As for the officials present, she urged them to embrace the act, rather than treat it as an obstacle, and reminded them that even when the law allows a closed meeting, it does not require one.

“We are trying to restore public confidence in all the hard work that all of you do,” she explained.

Besides the prosecutors, the panel included Terry Francke, general counsel for the open-government organization Californians Aware, and city attorneys Marsha Jones Moutrie of Santa Monica and Michele Bagneris of Pasadena.

The three ran through a series of scenarios, some hypothetical and some actual, raising questions about the application of the act. Many involved the use of new technologies, such as email and text messaging, that can be used to communication information among officials during and between meetings.

The panelists cautioned that officials must be mindful of the ban on “serial meetings,” in which officials hold separate meetings on the same subject, with the result being that a majority of the members of the body have engaged in a non-public discussion that violates the act.

Bagneris, however, noted that the act was amended last year to allow staff members to communicate with members of the legislative body separately on a given subject, as long as no member’s views are communicated to another outside of a Brown Act-compliant meeting.

The panelists also reminded officials that while the Internet has greatly increased public access by allowing users to view agendas, not everyone has computer access and they are still required to make their meeting agendas available in hard copy form.

Copyright 2009, Metropolitan News Company

Hopeful that President Barack Obama’s early commitment to transparency is genuine, the FOIA Group, Inc. is asking the Defense Department to allow public access to a Defense Department database that rates contractors. -DB

NextGov
August 14, 2009
By Aliya Sternstein

The Obama administration, committed to becoming the most transparent in history, upheld a Bush-era practice of denying taxpayers access to a Defense Department database that tracks contractor performance. An appeal to a recent Freedom of Information Act request is pending, but industry groups say they are confident Defense will respect their position to continue to bar public access to the ratings.

Since 2007, the FOIA Group Inc., which consults with major companies, law firms and nonprofits, has unsuccessfully challenged Defense to disclose the aggregate scores each contractor receives from federal agency from program managers, contracting officer’s representatives, engineers and other agency officials who work with the companies. The ratings are based on, among other things, the quality of the product or service, timeliness, cost control and business relations. The ratings are stored in a database called the Contractor Performance Assessment Reporting System.

The database serves as a kind of Consumer Reports for agency contracting officials who are evaluating competitive bids for government work. Contracting officers and other federal managers use the system to help make contract award decisions, and to improve government-contractor relations. Only federal officials can enter the password-protected database. Contractors are able to see their data to ensure accuracy and provide feedback to the government.

“Just like a report card for your kid in school, as a taxpayer, you should be able to know how poorly or how well these contractors,” which often receive contract awards that exceed several hundred million dollars, are working, said Jeff Stachewicz, founder of FOIA Group and a former staffer for the Army Command Counsel who served on Defense’s FOIA task force. “If a contractor is doing poorly the public has a right to know, the contracting community has the right to know.”

The FOIA Group is not asking the administration to disclose cost performance reports, financial solvency assessments, comments or other proprietary information that is in the database.

The group filed three FOIA requests for the ratings during the Bush administration, and all were denied. In April, Defense denied a request that the FOIA Group filed in December 2008, and the group immediately appealed. The appeal reached the department’s Office of the Undersecretary this summer for final review, and a decision is expected within 30 days, Stachewicz said.

“With the new breadth of openness from the Obama doctrine, these scores are under serious consideration for release,” he said.

In a statement responding to a request for comment from Nextgov, Pentagon officials said, “The Department of Defense attempts to be as transparent as possible. But while FOIA is a disclosure statute, it does allow for the withholding of certain types of information contained in agency records. FOIA requests for CPARS have been consistently denied in the past, but FOIA gives requesters specific legal rights and provides administrative and judicial remedies when access to records or portions of records is denied. The requestor will be notified when staffing on this request is completed.”

Stachewicz said if Defense denies this appeal, he would challenge the decision in court.

“Every contractor wants to get their competitors’ performance scores, but they don’t want to give up their own [scores],” Stachewicz said. The group’s efforts to overturn the policy “ruffled a few feathers with our own clients. But we don’t worry about that.”

Trade groups that represent contractors argue the Obama administration can better accomplish transparency and accountability by putting the performance records in the hands of contracting decision-makers, as is the current practice.

Granting contractors access to their own records also allows companies to correct factual errors or to dispute evaluations with officials’ superiors, said Alan Chvotkin, executive vice president and counsel of the Professional Services Council, a trade group for government contractors. “It’s helpful for me as a vendor, because it’s my information. It’s information about me,” he said. “I ought to be able to see the information that the contracting officer writes about me. It’s my credit report if you will. But you don’t publish your report cards in the Washington Post.”

Chvotkin said he believes the administration will decide not to disclose the scores, pointing to its careful redactions in a recent online publication of a contract proposal to overhaul the Recovery.gov Web site.

“I think they recognize that legitimate proprietary information and source selection information should be broadly available in the government and you can protect the taxpayers’ interests [that way] … without disclosing that kind of information,” he said.

Contractors say the scores would be meaningless without also disclosing the context from the supplementary confidential information. The aggregate ratings do not reflect the relative significance of individual projects, said Trey Hodgkins, vice president for national security and procurement policy at Tech America, an industry association.

For example, a company can earn low scores on insignificant projects and receive a high score of five out of five points on a more important project, such as the Recovery.gov redesign. But the aggregate low score would not reflect the more important Recovery.gov work, industry observers said.

Copyright 2009 NextGov

An editorial in The Monterey County Herald argues that laws restricting access to records about police misconduct do not permit scrutiny of police officials in administrative positions who should not be able to hide behind secrecy provisions. -DB

The Monterey County Herald
Editorial
August 14, 2009

Before it’s over, don’t be surprised if the apparent suspension of Seaside’s police chief, a deputy police chief and two police officers helps make the case for loosening California’s extreme restrictions on the public release of information about investigations into alleged law enforcement misconduct.

Already, the seeming inability of anyone in power in the Police Department or elsewhere at City Hall to comment on the mystery suggests it is time to put some common sense into the law, particularly as it applies to a police department’s top brass.

California’s tight personnel rules — tighter than in several other states — were largely meant to protect officers on the street from undue public scrutiny or unfair criticism that could make it harder for them to protect the public.

The thinking was that because they deal with such a wide cross section of people, often in extremely stressful circumstances, even some of the better performers in the police ranks could be subjected to unfounded complaints and criticisms that could prove to be career-killers if the information went into public circulation. If officers had to worry constantly about every scrap of information in their personnel files, they could become so cautious as to become ineffective in the field.

Unfortunately, the rules on the books have been applied so broadly, and not always correctly or appropriately, that many public officials believe they cannot comment on investigations involving the conduct of police officers under any circumstances.

The rules and regulations, and even the court rulings that have interpreted them, were meant primarily to protect the rank and file, the officers who come in regular contact with the public and who are most susceptible to trumped up allegations. The rules and regulations were never meant to shield senior police officials from public scrutiny — or to muzzle them when they or others have been falsely accused.

The result, as the current procedures involving Police Chief Stephen Cercone and the others may show, ultimately could be unfair to the officers and to the public. The public is left in the dark about what is going on at arguably the most important and powerful institution in the community. The officers, meanwhile, could be left unable to defend themselves from the rumors that naturally follow any sort of wholesale suspension. When public support for a police agency is eroded, public safety can be compromised.

As soon as possible, those who do know what’s going on in Seaside should take it upon themselves to research the various rules and regulations with an eye toward providing as much public information as possible.

Contrary to common belief, the law does not provide a blanket prohibition on releasing basic information about such inquiries. Generally, it enables but does not require public agencies to wrap themselves in secrecy, especially when it seems obvious that the public interest, and perhaps even the officers’ interests, would be better served by a responsible amount of disclosure.

Copyright 2009 Monterey County Heral

University officials claim that a law forcing disclosure financial dealings of nonprofit university foundations serving state institutions would be too costly. Open government advocates say that recent expenditures, illegal or questionable, show the need for disclosure. -DB

Capitol Weekly
August 13, 2009
By Maryam Ali

Free-speech groups are trying to force the state’s public universities to disclose financial relationships worth more than $6.25 billion. At issue are scores of nonprofit foundations linked to the schools. The University of California and the California State University say unveiling the finances would cost millions of dollars in staff time.

The quest for details of the nonprofits’ money – where the money comes from and how it is spent – follows a series of disputed financial transactions at schools across the state.

For example, the Sonoma State University Academic Foundation’s $1.25 million loan to former board member Clem Carinalli has come under scrutiny.  Also last month, Philip Day Jr., former chancellor of City College of San Francisco, faced eight felony counts and one misdemeanor count related to the misappropriation of $150,000 of public money.

University officials estimate that enactment of legislation that would force disclosure would cost $6.6 million and force a commensurate reduction in funds for campus programs and services.

The cost stems from the amount of time that the staff would spend responding to requests submitted under the Public Records Act (PRA), as well as any necessary legal action that they say would cost a minimum of $50,000 per court case.

But one of the Legislature’s foremost critics of UC’s governance is not convinced. Sen. Leland Yee, D-San Francisco, has authored legislation, SB 218, that would force the universities and their nonprofits to disclose their finances.

At stake is big money.

Currently, CSU has 89 auxiliaries or foundations with net operating revenues of $1.25 billion. UC’s annual reports show around $5.01 billion spread throughout 10 primary foundations on each campus and around 250 support groups.

Jim Ewert, legal counsel for the California Newspaper Publisher’s Association and a proponent of the bill, said that the Legislature does not know the details of how that money is being used. “When they’re making determinations as to what should be cut at the CSU or the UC, this is hidden money. They’re not able to make an informed decision.”

Universities and colleges argue that PRA provisions will not make available any new information to the public.

“It is an exercise in futility,” said Geoff O’Neill, assistant vice president of institutional advancement at the UC. “The concern is that it will stifle the ability to discuss issues of great importance to the university due to fear that there’s going to be a PRA report on notes related to the discussion.”

O’Neill said the objective of the bill is unclear since there is no financial information that is not public. In addition to filing yearly tax returns, which are publicly available, all UC foundations have annual audits conducted by an international accounting firm, PriceWaterhouseCoopers. He added that he is unaware of any instance where information requested, related to university activities, has not been provided.

The CSU too said that revenues and expenditures of their auxiliaries are public under current state and federal law. The Humboldt State University Advancement Foundation, for example, post annual financial reports on its website.

“What we’re doing is opening up a whole Pandora’s box of requests without anything really of substance that would be added to the public’s knowledge of what the university is doing,” said O’Neill.

The disclosure problem arises in part when the foundations hold money in between disbursing scholarships. “They are acting like a bank,” said Alice Sunshine, communications director at the California Faculty Association.

In some cases, the foundations are responsible for determining appropriate investment methods for money collected from donations until it is ready to use for their non-profit purpose. Giving out personal loans, Sunshine said does not fit the category. “Outstanding loans from the 90s for a scholarship fund? It’s starting to look really ugly, that’s a favor for a buddy.”

Sunshine said that the lack of openness leaves bad situations brewing until they are circumstantially discovered.

Too many disputes, including Sacramento State University  President Alexander Gonzalez’s low-interest loan in 2007, come to the forefront coincidentally.

In one instance, a reporter following a different money trail at the county tax assessor’s office found links to a university loan. In another, the discovery in a lawsuit brought by a rival cinema complex suing the university found an implicated trustee, and a student reporter following an assignment for class in a library records discovered Gonzalez.

“This isn’t right and we’ve only got a peak under the rug. You take very little public oversight and a billion dollars and put it together and you know it’s just the recipe for things to happen,” Sunshine said.

“We have seen too many incidents of sweetheart contracts and sweetheart deals. Enough is enough. We’ve got to clean this entire system up,” added Yee.

In the 2001 CSU Fresno v. Superior Court case, the court concluded that a nongovernmental auxiliary was not a “state agency.” However, the court said its conclusion was in “direct conflict with the express purposes of the CPRA (California Public Records Act),” to safeguard government accountability, and suggested that the Legislature close the loophole in existing law.

Although the addition of Prop 59 in 2004 set up a framework to analyze ambiguities in public access cases, the argument remains over whether preemptive measures should be taken.

The 2001 Fresno State case surrounding the basketball arena serves as an example of abuse, contends Ewert. Being used for noneducational purposes such as concerts, the arena was assessed at a higher rate. The same association that argued to be exempt from the PRA, then argued that as a public building operated by a public entity, the arena should be exempt from higher prices.

O’Neill said that it is difficult to argue against the concepts of transparency and accountability that surround the bill, especially when the university embraces those values as well. Compensating UC individuals from any of the organizations is however strictly prohibited under UC guidelines, something that would remain unaffected by the bill.

The CSU and UC say they are concerned that the bill stands as a potential barrier to attracting and retaining important volunteers and donors.

Rather than determining whether the clause actually address all concerns, O’Neill said that individuals would be more inclined to donate to a private institution where they do not have to worry about their anonymity. “You just don’t have the assurance that you would if this wasn’t the situation at all.”
The bill was passed in the Senate 35 to 1 and received no opposition in the Assembly.

“Whenever you’re’ taking on the UC and CSU you know you’re taking on a rather powerful lobbying institution,” said Yee referring to the institutions influence in the legislature. “Unfortunately, sometimes their power does in fact outweigh the public interest.”

Copyright 2009 Capitol Weekly

Faced with the arduous task of framing a policy on social media that balances security and the need for troops to communicate with friends and family, the Defense Department is asking the public for their ideas. -DB

NextGov
August 10, 2009
By Bob Brewin

How do you develop a policy for using social media in the Defense Department that balances security with the strongly held desire to communicate with a deployed family member?

The answer is simple, according to Jack Holt, senior strategist for new media in the Pentagon: Start a blog, the first one Defense has set up to discuss a major policy decision.

Holt said the Pentagon set up its Web 2.0 Guidance Forum last month to ensure Defense Secretary Robert Gates received a range of input from the public as he develops a new policy for use of social media sites and applications, such as Twitter and YouTube.

Analyzing the effects of social media is driven largely by security concerns in areas where the military is deployed and the potential risks posed by the sites, if, for example, troops post information that could be exploited by the enemy.
Defense must balance security concerns against the desire of deployed troops to use the sites to communicate with their families, said Steve Lunceford, a consultant with Deloitte in Mclean, Va., who specializes on the use of collaborative technologies in government. Social network sites help alleviate the family strain caused by deployments, said Lunceford, who also founded GovTwit.com, which tracks government twitter users.

The Defense Web 2.0 Guidance Forum has solicited opinions from military families, and it will provide Gates with external feedback, Holt said. The forum is a pilot project developed under the Obama administration’s open government initiative, he said.

Defense decided to launch the Web2.0 forum after Deputy Defense Secretary William Lynn ordered a policy review of social media Web sites. The White House asked the public on Aug. 7 to submit ideas to the forum to develop policies for the “responsible and effective use of emerging Internet-based capabilities.”

Lunceford said the Web 2.0 forum is a “new way to shape policy” and a focused use of one kind of technology—blogs—to frame the debate on the use of other technologies such as social networking tools.

Responses from the public are skewed against banning social network sites and point out their value in not only bolstering family communications but also advancing the image of Defense and military personnel worldwide.

One comment noted social network sites make “every soldier, sailor, marine, and airman a public affairs representative. . . . It will provide our perspective on the narrative of events instead of the often one-sided perspective provided by our would-be enemies (or in some cases, our enemies who quickly discount our actions as malicious in their public affairs campaigns).”

Another commenter urged Defense leadership to understand that dispersed families no longer communicate using e-mail, but rather social network sites. “I have a wife, a daughter, two parents, an aunt and several uncles who all communicate now through social networks,” the commenter wrote. “In fact, I don’t think we’ve used ‘normal’ e-mail in several years.”

This commenter added, “For me, these tools go far beyond useful, although ‘critical’ is an awfully tough word to justify. One thing missing from e-mail is the humor and emotional content that is available on social networks.

“I am an avid Facebook user (not so much MySpace) and sometimes my daughter can see that I am thinking about her when I send her a ‘gift’ like a heart or a flower. Sure, they’re just icons, but how old does ‘I love ya’ get?

“My wife has a very very hard time of dealing with my absence when I am deployed and e-mail helped, but it isn’t the same as phone calls or some of the unique interactions you can get on Facebook, Flickr, or YouTube. A picture or funny message is worth more than a plain text e-mail any day!”

Gates will factor the comments into his decision on the use of social network sites, and Holt urged the public to continue to contribute to the forum until Aug. 20, when it will stop accepting comments.

Copyright 2009 NextGov

The Homeland Security Department held the first of three online dialogues this week to allow the public to comment on their long-term stratigic plans. -DB

NextGov
July 3, 2009
By Jill R. Aitoro

The Homeland Security Department launched its first of three online dialogues on Monday that ask the public to comment on the department’s long-term strategic plans before they become official policy.

The dialogue is part of DHS’ response to a request by Congress for the department to conduct a Quadrennial Homeland Security Review that would guide executives’ strategic planning for the next four years. The effort, which is modeled after the Pentagon’s Quadrennial Defense Review, collects public feedback about the content produced by the review’s study groups.

The review targets those involved in homeland security, such as first responders and state and local government officials, but anyone can submit comments by signing into the Web portal. The feedback will contribute to a final report due to Congress by the end of the year.

“The [review] is an important opportunity for DHS to set forth our vision for homeland security, and address the challenges we face as a department,” said Homeland Security Secretary Janet Napolitano in an online video message about the initiative. “This review will establish a foundation for homeland security activities now and in the future in order to enhance the security and resiliency of our nation.”

For the review to be comprehensive, she added, “we need strong participation from our federal, state, local, tribal, nongovernmental and private sector partners.”

The National Academy of Public Administration is hosting the dialogues, which will take place in three phases. The first, which went live at 8 a.m. on Monday and will run through midnight Sunday, focuses on the department’s broad visions and goals, as defined by the study groups. The second and third dialogues, which will run from Aug. 31 to Sept. 6, and from Sept. 28 to Oct. 4, respectively, will provide more details on DHS’ long-term goals to address plans and strategies. A final report will be submitted to Congress on Dec. 31 and will incorporate some of the feedback and comments received through the online dialogues.

“This is a bold effort to let people inform the product,” said Daniel Munz, senior research associate at the NAPA. “DHS understands that the consequence of asking people what they think is they won’t always tell you what you want to hear.”

Content produced by the study groups will fall into six areas:

– Counterterrorism and domestic security management
– Securing the borders
– Smart and tough enforcement of immigration laws
– Preparing for, responding to and recovering from disasters
– Homeland security national risk assessment
– Homeland security planning and capabilities

“For an administration that talks about the importance of transparency and collaboration, this is a wonderful way to go about collecting input and insights and encourage involvement,” said Alan Balutis, director of the business solutions group at Cisco Systems and a fellow with NAPA. “You can involve more people, get outside the major urban areas, and solicit from across the country. It’s a powerful tool.”

Participants enter comments about policies from the study groups, suggest alternatives to the proposals and refine them in open discussion. They also can rate proposals and other comments that they consider valuable, and assign one- or two-word tags to categorize them. For example, a comment about the need for stricter Internet monitoring to improve cybersecurity could be assigned the tags “privacy” and “civil liberties.” Participants then can click on any topic tag for a list of other policies and comments that have the same tag. The study groups can use the topic tags to identify broad themes and to analyze the comments and ratings by a region or community, such as what first responders are saying, for example.

Munz described the project’s progress as “watching a brain wire itself,” as individual participation contributes to an expanding dialogue.

“The more people we get [to participate], the more the tool becomes helpful,” said David Heyman, assistant secretary for policy at DHS. Comments and policies that are the most meaningful “will bubble to the top so we can get a sense of the pulse of the community.”

“It’s been a challenge, how to best engage the public as a partner,” he added. “This is an opportunity to raise awareness and begin that dialogue anew to make sure that the shareholders of America are a part of the discussion when we talk about the best ways of allocating resources.”

Copyright 2009 NextGov

A public relations expert says that a scant number of public officials have used Twitter to address their constituencies on substantive issues in a thoughtful way. -DB

MediaShift
Commentary
July 29, 2009
By Mark Hannah

Are high profile public officials using Twitter as a noble tool to bypass the proverbial “mainstream media filter” and communicate directly with constituencies? Or do they just see it as yet one more wall in the online echo chamber, something merely to influence and/or amplify mainstream media stories? The answer probably lies somewhere in between as I found from examining the Twitter feeds of several prominent current and former U.S. government officials.

PUBLIC OFFICIALS WHO ‘GET IT’

Some major official figures have genuinely embraced the medium. Karl Rove tweets prolifically, sparring with the Center for American Progress, and publicizing op-eds that he enjoys and with which, of course, he agrees. His Twitter behavior shows someone committed to the kind of conversation and community that typify the medium—remarkably, he follows nearly as many people as follow him. As a progressive who enjoys intelligent debate, I regularly read Rove’s op-eds in the Thursday Wall Street Journal. But until Twitter, the only public rebuttal I could make was muttering under my breath and shaking my head while riding the subway.

Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, is another public official that has, I think, used Twitter very effectively. In some ways, Mullen hasn’t really embraced the communitarian nature of the Twitter community; for example, his account only follows the high profile tweeters being indexed by WeFollow.com. It is also quite possible that a staffer rather than Mullen himself is uploading the posts. That said, the posts do seem to come directly from Mullen and expose an otherwise unseen side of the country’s highest ranking military officer. His posts are chock full of empathy, enthusiasm and gratitude, doling out praise and offering candid status updates.

Here are some representative tweets from Mullen:

Recorded a video greeting to Gold Stars Wives of America. The network of support they offer each other and others in grief inspires me.

Arrived home last night, terrific trip! Rich in experience and feedback. Troops proud of difference they are making, and I am proud of them.

Neither of these men use Twitter to simply advance an agenda, show off their savvy understanding of digital media, or generate publicity for themselves. They use it for different purposes—Rove for discussion and Mullen for dispatches—but in ways that are appropriate both for their stations and for the medium.

OFFICIALS WHO DON’T ‘GET IT’

There’s a counter-narrative here, however. In March, political columnist Charlie Cook railed against public officials’ use of Twitter:

I have yet to hear a single intelligent remark Twittered by an elected official… The vacuous utterances Twittered daily from members of Congress make me wonder how they have the time to spend keying in on such banalities and marveling over the narcissism implicit in their belief that anyone cares about their every single thought and reaction to contemporaneous events.

To be fair, the eloquence and insight of elected officials is pretty constrained by Twitter’s 140 character limit. And there’s a learning curve that representatives (and their staffs) have to grapple with when dealing with this new platform.

But if the way we communicate influences the way we think, how might a medium that encourages instantaneous, ineloquent and unsophisticated communication affect our legislators’ deliberative processes?

I got a possible answer when I went to TweetCongress.org, which aggregates all of the Twitter feeds of House and Senate members. As I pored through the tweets, I found myself agreeing with Cook’s worrying observation. Are our elected officials using Twitter to get around the traditional media filter and communicate directly with their constituents, something, as I’ve previously observed, the Obama campaign did well? I’ll let them speak for themselves:

Paul Ryan (R-WI): Will talk with Brian and the Judge at 10:35 am ET. To listen live: http://www.foxnews.com/radio/brianandthejudge/

Barbara Boxer (D-CA): Gearing up to talk health care w/ Carlos Watson on MSNBC- 11:05am EST, 8:05am PST. Tune in!

Mike Pence (R-IN): I’m on my way to appear on @foxnews with @gretawire at 10 PM EDT to talk about the Democrat #healthbill, the gov’t takeover of #healthcare

John McCain (R-AZ): Watch Hannity tonight—on @ 9:00 pm discussing health care and the need for the right reform!

Christopher Dodd (D-CT): Headed to the Senate floor to speak about Health Care reform. You can watch live on C-Span2

There certainly are some good examples of public officials using Twitter to communicate candidly with new audiences. In addition to Mullen and Rove, the British Prime Minister’s office maintains a fine Twitter account, as does Iraqi Deputy Prime Minister Barham Salih.

But watching our elected officials turn their Twitter accounts into publicity outlets for their cable news appearances strikes me as a sort of redundancy ad absurdum. If our representatives continue to fail to use Twitter for its nobler purposes (like thoughtful, if concise, constituent communications), I’ll continue to be reminded of this ominous quote from Ayn Rand’s “The Fountainhead”:

People want nothing but mirrors around them to reflect them while they’re reflecting too. You know, like the senseless infinity you get from two mirrors facing each other across a narrow passage. Usually in the more vulgar kind of hotels. Reflections of reflections and echoes of echoes. No beginning and no end. No center and no purpose.

What government officials do you follow on Twitter? Which are your favorites and least favorites? Let us know in the comments below.

Mark Hannah has spent the past several years conducting sensitive public affairs campaigns for well-known multinational corporations, major industry organizations and influential non-profits.

Copyright 2009 Public Broadcasting System

Troubling questions remain about how such experienced Oakland policemen were killed by a single gunman in March. The police chief is withholding 911 tapes and other documents to flout open government laws and keep the media and others from seeking the truth. -DB

The Oakland Tribune
Commentary
July 26, 2009
By Thomas Peele

THE SHOOTING DEATHS of four Oakland police officers in March represented perhaps the most tragic day in the history of California law enforcement.

Four vibrant public servants died, as did their killer. A sea of grief washed over Oakland and all of the state, really, if not the nation. The president sent videotaped condolences; widows and suddenly fatherless children wept.

Four months later, there are more questions than answers. At the core is this: How did two highly trained SWAT sergeants die as they hunted for a gunman who had already murdered two motorcycle officers?

Oaklanders deserve answers about how things went so horribly wrong. The police and Mayor Ronald Dellums must be publicly forthcoming with details regardless of how ugly they may be.

But a written message that Acting Police Chief Howard Jordan recently sent out, raises doubts about how transparent — if at all — police will be about the killings when lengthy investigations are finished.

Jordan asked officers to close ranks, act like a family, and trust that he would get to the bottom of what happened: Officers should “seek the confidence of those who are willing to help and guide us as opposed to those — the media — who seek to hurt us and discredit us to the public we are sworn to serve.”

The Police Department also has rejected requests — with the backing of the city attorney’s office and the county District Attorney — for the 911 tapes and dispatcher broadcasts about the shootings, citing an ongoing investigation.

In Pittsburgh, Pa., just weeks after the Oakland tragedy, three police officers were also killed. Within days, news organizations had access to 911 tapes that showed a horrible error: a dispatcher had failed to pass on to the responding cops that there were guns in the house.

In Oakland, reports have made it clear that there was confusion as police prepared to raid an apartment building where the gunman was hiding, and that, like in Pittsburgh, good men may have died because of apparent mistakes.

Pennsylvania is not a state with strong government transparency. And yet the people of Pittsburgh got answers.

California is a state where government transparency is Constitutionally mandated. And yet the people of Oakland just wait.

Rather than be transparent, Jordan wants the department to close ranks and hunker down. He’s clearly a bureaucrat who places image before substance.

I asked Jordan for an interview to explain his thinking. He said no. He also wrote in an e-mail to me that his message was “correspondence intended for our staff only.” On multiple levels, Jordan is mistaken. First, as acting chief, his writings are public record. He can’t issue a statement to hundreds of cops and claim it’s private. If he truly thinks that, he is bereft of even a basic understanding of the Public Records Act.

That ought to be extremely troubling to Oakland residents.

As acting chief, Jordan runs a city department — and wants to run it permanently — that, counting civilian employees such as technicians and dispatchers, employs more than 1,000 people with a payroll that exceeds $121 million a year.

His 2008 salary was more than $213,000 — more than enough money to know better.

Equally troubling are Jordan’s call for the police department to act like a family — a group that inherently protects its members and keeps secrets — rather than a transparent government agency and that he thinks the intent of investigative journalism is to “hurt and discredit” his department.

Does he really believe this? Or does he think that’s what cops on the street think and wants to tell them what they want to hear as he campaigns to be named permanent chief? Whom does he serve first, his fellow officers or the taxpayers?

California police departments are already secret societies protected by draconian laws blocking all access to internal information like personnel records, performance reports and discipline.

The lack of public access to information about the performance of officers means police departments, such as Oakland’s, don’t have meaningful accountability. But when news organizations work to provide it, cops like Jordan simplistically say that tough questions are attacks on the family.

A consultant hired to help Oakland search for its next chief wrote in a memo that that person must “be committed to transparency in all aspects of the policing.”

Transparency in all aspects of policing? Does that sound like Howard Jordan?

Copyright 2009 Bay Area News Group