Anyone interested in analyzing the data should read this helpful primer from Bloomberg News on the key numbers that have been the focus of controversy.

The Federal Communications Commission has received numerous requests under the Freedom of Information Act (FOIA) for documents related to LightSquared, Sky Terra, Mobile Satellite Ventures, Motient, Harbinger, TerraStar, and people related to these entities. For the convenience of the requesters and the public, under the “frequently requested records” provision of the FOIA, 5 U.S.C. § 552(a)(2)(D), the FCC has created this public web portal to provide ready access to publicly available documents and other responsive documents not otherwise exempt from release under the FOIA

This response will surely help the FCC efficiently respond to each requester. Sounds good, right?

But what the FCC chose to disclose — and not disclose — is at the heart of the dispute, the Washington Post points out in this story posted Nov. 23:

“The trove of hundreds of documents shows widening concern by lawmakers, federal agencies and consumers over whether the satellite technology owned by the firm, called LightSquared, would interfere with GPS systems and put airplanes in harm’s way. These officials also questioned whether the FCC had thoroughly tested the system.

The release, which was in response to a Freedom of Information Act request by several media outlets, largely cull from the public record and did not include any of the internal deliberations that led FCC Chairman Julius Genachowski to bypass a vote by his own commission and allow LightSquared to move forward with its plans.”

So by efficiently releasing documents in one place on a particular hot topic, the FCC did well.  By not yet releasing the document trail explaining the FCC’s handling of Lightsquared, the FCC still falls short.  This shows the difference between processing problems and the substance of agency’s decision to disclose.  Too often agencies can get away with avoiding disclosure of the most inconvenient information.

Much of the new site will be immediately useful to FOIA users.  The OGIS Library should prove useful for requesters who are new to FOIA and want to better understand the FOIA-speak that they sometimes receive in agency responses, although this material is similar to the technical background on the Justice Department’s FOIA.gov.

Other parts are aspirational:  OGIS includes a section on Advisory Opinions but has not issued a single advisory opinion to date.  OGIS notes the office is developing guidance on to explain how and when they will be used.  Thus far, they have been a tool to be avoided, but we believe advisory opinions should be a useful tool that OGIS should use often.

Initiated and sponsored for years by the American Society of News Editors, this year Sunshine Week is a collaboration between ASNE and the Reporters Committee for Freedom of the Press.

In the past, journalists have conducted audits of FOI laws, policymakers write opinion pieces, editorial cartoonists contribute works for broad distribution, interest groups sponsor programs, and Congress holds a hearing or two to push bills or take stock of where we are with government transparency.

The audit, in which the AP submitted requests for documents to test the speed and quality of responses, should provide a good baseline for evaluating the impact of the U.S.-led Open Government Partnership, which launched earlier this year.

We do not normally comment on open records issues at the state level, mostly because we’re busy enough with secrecy in Washington.  However, we make an exception today because the story clearly explains how limits in an open records law affects what the public can find out.

In their report posted November 16 on CNN.com, the staff reported that the assistant coach under fire for not doing enough to stop Sandusky from allegedly raping the young boy asserted that he contacted police.  The reporters devoted seven paragraphs to explain that Penn State is exempt from the Commonwealth of Pennsylvania’s open records law, including the fact that Penn State President Graham Spanier, fired after the scandal became public, fought against transparency at the institution:

“In 2007, state lawmakers considered a change that would have included the school under the open records law. But Spanier testified against the move before the House State Government Committee.

“He told the legislature he was concerned about cost and compliance. He also said they were competitive reasons for keeping records private.”

In the past decade, reporters have done a better job identifying when their stories relied on documents obtained under the federal Freedom of Information Act or similar state law.

We don’t know if Spanier was attempting to shield the public and protect the university from these particular allegations, but the story raises the question whether public institutions are better off when they are subject to a strong open records law.

Note:  In the original story, the emailed version stripped formatting showing two paragraphs were quotations from the CNN.com story.  The posted has been updated to show more clearly where the text was quoted.

In a letter dated November 3, 2011, to Senator Charles Grassley and Senator Patrick Leahy, both of whom pushed back against the proposal, assistant attorney general Ronald Weich noted that the practice had “fallen short” and Justice is looking at ways to better address the problem.  The proposal will not be part of the Department’s final rules implementing FOIA.

The government should respond to FOIA requesters in a reasonable and transparent manner.  Someone receiving a response to a FOIA request could reasonably think that “Records responsive to your FOIA request do not exist” means simply that no records exist.

We applaud the Justice Department for taking another look at this flawed practice and looking for other ways to ensure law enforcement records can be protected while making sure the government responds in ways that the public understand and expects.  We also appreciate Senators Charles Grassley, Patrick Leahy and the others who spoke up about this proposal.

Note: This post was updated to place the word “lying” in the title within quotation marks.

There is a saying that a lie gets halfway around the world before the truth laces up its shoes. As for Alvarez’s claim to have received the Congressional Medal of Honor, the Congressional Medal of Honor Society lists over 3,400 actual soldiers decorated for their heroics, but that’s only one of many military awards, and unless someone happened to know about the CMOHS online database and whip out a smartphone at the moment to pull it up, such a claim would likely go unquestioned, letting some people bask in the glory others earned.

That may be why the Supreme Court recently decided to consider the Stolen Valor Act of 2005, which makes it a criminal offense to falsely claim certain military awards and decorations. The Ninth Circuit and a Denver federal judge have each held the statute to be an unconstitutional infringement on the First Amendment’s guarantee of freedom of speech. In response, the solicitor general asked the Supreme Court to hear an appeal – and it agreed. (For more commentary, see The First Amendment Center’s Tony Mauro and Lyle Denniston at SCOTUSblog.) (You can read the law yourself at 18 U.S.C. 704.)

The Freedom of Information Act enables investigators and resources to expose such fraud (over time), as shown in the coverage below:

• October 3, 2010: “Stolen Valor group works to uncover military impostors” (Pittsburgh Post-Gazette)
• May 10, 2010: “One man’s database helps uncover cases of falsified valor” (Washington Post; also #532 in our FOIA Files)
• August 2, 2009: “In Ranks of Heroes, Finding the Fakes” (New York Times)
• July 6, 2009: “Phony 4-star, others infiltrate MCA” (Marine Corps Times)
• April 12, 2009: “Far more POW claimants than actual POWs” (The Associated Press)
• October 26, 2008: “Claim of medals amount to stolen valor” Chicago Tribune; also #343 in our FOIA Files)
• April 12, 2007: Don’t Tell Glenna Whitley You’re a Vet if You Ain’t. Because She Knows. We’re Lookin’ at You, Brian Dennehy. (Noting that Whitley wrote a book, “Stolen Valor”, about people who fabricated claims of service) (Dallas Observer blogs)

Here’s the current quandary:  How should the Justice Department respond to FOIA requests without tipping off suspects who are targets of secret criminal investigations?  Individuals or private entities trying to confirm whether they are subject to an investigation turn to FOIA as a convenient tool.  They file requests for documents hoping the government’s response will reveal whether an investigation has been opened, closed or didn’t exist in the first place.  To avoid tipping its hand, the government’s response has to be identical regardless of whether records exist or not.  The FOIA statute allows the government to “treat [such] records as not subject to the requirements of” FOIA. That means, don’t review the information to redact sensitive material and disclose the rest; simply ignore the information altogether.

The Justice Department has proposed that, in these circumstances, the government should respond “as if the excluded records did not exist.”  But that goes too far, the Electronic Privacy Information Center charges.

Clearly the government should not say records do not exist when, in fact, they may.  Nor should the government’s response tip off targets of investigations.  But there’s an easy solution to this problem, as the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org noted in their joint comments.  The government could give an identical response explaining it would neither confirm nor deny the existence of a record. (This isn’t a new idea, of course.  It’s longstanding practice called a “Glomar” response started when the U.S. didn’t want to confirm or deny it had used a massive vessel called the Glomar Explorer specifically designed to take possession of a sunken Soviet submarine.)

The nonprofit groups’ comments trace the debate on how agencies should respond going back decades. While the government’s interest in protecting confidential investigations is serious, and the public’s interest in proper administration of FOIA, the fact this has not been resolved is remarkable.  The approach suggested by the nonprofit groups should allow the government to withhold while giving a truthful, informative and standard response to the requester.

Add this to the longstanding problems that require better leadership to ensure FOIA is implemented in a timely, useful manner.