Let’s be clear – a friendly reminder

Recently, as the 111th Congress concluded its business before the 2010 midterm elections, Congresswoman Loretta Sanchez (D-CA) introduced a bill, H.R. 6266, which, among other things, proposes to exempt certain law-enforcement guidelines from disclosure under the federal FOIA.  But it doesn’t even mention FOIA.

SGI applauds Congress & White House for quick fix to overbroad FOIA exemption for the SEC

Today President Obama signed into law a bill that sped through the House and Senate to quickly fix an overbroad exemption from disclosure under the Freedom of Information Act.  The Sunshine in Government Initiative appreciates the quick action and hard work of transparency leaders in Congress to correct this mistake.

Tracking FinReg’s SEC provision: Subtle word changes make a big difference

Between the legislative record for the SEC FOIA exemption in the Dodd-Frank financial reform law and the recent written statement of Mary Schapiro, chair of the Securities and Exchange Commission, we have been able to clarify the origin and evolution of the three confidentiality provisions that became law in Section 929I.  And despite Schapiro’s descriptions of the provisions in terms that downplay the importance or effect of changes in the language, we have observed the addition of two phrases, in two stages, to the FOIA exemptions in what would become Section 929I of the financial reform legislation.

The first change took place between the introduction of H.R. 3817 (Investor Protection Act of 2009) on October 15, 2009, which included provisions exempting various forms of information relating to “an examination of a person…” (Section 409), and the introduction of H.R. 4173 (Wall Street Reform and Consumer Protection Act) on December 2, 2009, which incorporated the language of H.R. 3817 as Section 7409. The latter bill applied the provisions to various forms of information relating to “an examination, surveillance, or risk assessment of a person…”

The second change took place between House referral of H.R. 4173 to the Senate after passage on December 11, 2009, and the release of the base text for the Conference Committee on June 10, 2010 (after which the language, now “Section 929I,” did not change). During that time, the three provisions of Section 7409 were condensed – and each added the phrase “or other regulatory and oversight activities” to the references to “surveillance” and “risk assessments.”

Schapiro testified that the “operative language” from her predecessor had referred to “an examination of a person…” in 2006/07/08. She added that “the operative language” from her July 2009 legislative proposal to the relevant committees had included a reference to various forms of information “including without limitation surveillance, risk assessments, or other regulatory and oversight activities.”

We admit these changes may be small – but we think those changes had a big impact on the reading of Section 929I and its application.

SGI testifies about new SEC FOIA exemption statute

SGI Coordinator Rick Blum provided testimony to the House Financial Services Committee regarding the Committee’s review of Section 929I of the Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Section 929I added three statutory exemptions – known as “b(3)”s, after the subsection of FOIA permitting them – for the Securities and Exchange Commission to use to withhold information from FOIA requesters. Blum argued that Section 929I is overbroad and should be re-written; only Congress can repair 929I; Congress should not risk waiting and having an overbroad interpretation of 929I become ensconced in agency practice; and this process can be part of a larger effort to improve congressional review of b(3) exemption statutes.

Joining Blum on the panel were former SEC Chairman Harvey Pitt, Angela Canterbury of the Project On Government Oversight (POGO), FOIA attorney Steven Mintz, and securities attorney Susan Merrill. Testifying in earlier panels were SEC Chairwoman Mary Schapiro, and Representatives Edolphus Towns and Darrell Issa (Chairman and Ranking Member, respectively, of the House Oversight and Government Reform Committee).

More images of wrongdoing

The military appears ready to recycle arguments from last year, that photographic evidence of wartime abuses by American soldiers poses a threat to national security, the military, or both.

An Army commander is imposing strict limits on photographs in connection with the deaths of three Afghan civilians earlier this year. Descriptions of the photographs and some of the military’s rationales for secrecy in this case are reminiscent of previous photographs and justifications:

The pictures in question show “three dead Afghans with three different Soldiers posing, holding up the decedent’s head. (Each photo was one Afghan, one Soldier),” according to an e-mail by Benjamin Grimes, senior defense counsel at Base Lewis-McChord. Others [photographs described in a memo by Grimes] showed what appeared to be severed fingers and a bone.

(from Salon.com, 9/30/10)

A top Army official has ordered that images of dead or wounded “casualties or detainees” may not be made public during hearings involving an American soldier accused of murdering three Afghan civilians during a deployment to Afghanistan this year.

But the images would be accessible to defense and prosecution teams and could potentially be used as evidence in the case, the Army official, Col. Barry F. Huggins, said in a memorandum.

The decision reflects concern among the Army’s senior leadership that such evidence could anger Afghan civilians at a time when the United States is trying to win support for a counterinsurgency campaign against the Taliban.

“I have determined that the risk of potential prejudice to the substantive rights of the accused, as well as negative impact on the reputation of the armed forces, associated with the potential public dissemination of these images outweighs minimal hardship upon the accused as a result of this order,” wrote Colonel Huggins.

(from the New York Times, 9/24/10)

With the Obama Administration’s support, Congress has already let the Secretary of Defense withhold photographs showing how U.S. forces handled (and in some cases abused) detainees. That ban only covered photographs taken between September 11, 2001 and January 22, 2009; these photographs were taken in 2010.

Will the Administration be tempted to extend the exemption? There’s only one way to find out: Salon.com has filed a FOIA request for the photos.

The fact that this has come up so quickly after the detainee photo controversy shows these fears will come up repeatedly over information held by government, and the justification for the first photos ban was too broad and vague to ensure the U.S. government is kept accountable for the actions of its soldiers.

A trade secret in U.S., losing bids fight corruption online in Seoul

You may know not know it, but Seoul, Korea is one of the most tech-savvy cities in the world.  Or so says Time Magazine in this profile of the city’s efforts to wire up its citizens. An eye-grabbing stat:  95 percent of the city’s residents have broadband connections in their homes. (By comparison, Time notes the U.S. has 60 percent of households have installed broadband.)  The impact is real:

Start with clean government. All city contracts are now put out to bid online, and all bids are posted. That transparency, Seoul Mayor Oh Se-hoon tells TIME, has reduced corruption in the city significantly in the past 10 years. ‘Since all information is disclosed real time over the Internet, influence-peddling over the bargaining of government permits becomes impossible,’ he says. ‘The online system tracks the flow of approval routes and leaves behind evidence in real time. If a manager holds on to an application for too long, he becomes a suspect. So administration becomes faster and uncorrupt.’

Washington considers losing contract bids as trade secrets exempt from disclosure under the U.S. FOIA.

Read more: http://tinyurl.com/28p4e2f

SEC & FOIA Exemption in Dodd-Frank: Your Take?

Update 8/9/10:  The hearing on the SEC FOIA exemption has been moved up to September 16th.

Original Post: We need some input.  You may have read that the financial reform law includes a provision that allows the SEC to withhold certain investigative files confidential.  Fox Business is attacking this as a broad exemption ripe for abuse, while SEC says it really is meant narrowly and will issue guidance.  And today the House Financial Services Committee announced a hearing on September 23rd September 16 to look into the matter.

What’s the impact on journalists who’ve covered the SEC? Let us know if you’ve covered the SEC and can shed some light.  Add them to comments or email us.  All comments will be treated as public unless you specifically say otherwise.

Update 8/9/10: The text in question is below the jump.

Farm bill sleight of hand hides subsidy recipients

What do a Texas oil billionaire, a former NBA basketball star and a Washington “uber-lobbyist” have in common?  They all received money (legally) under a program to subsidize farmers.  But according to the Environmental Working Group, you can’t find out if they or others like them still receive payments because the U.S. Department of Agriculture is no longer publishing the names of individuals receiving payments.

All because Congress inserted during the closed conference committee meeting two provisions into the massive 2008 farm bill that gave the USDA the authority to do it.

Welcome — and what to expect from us

We’re blogging to trade more information about open and accountable government.

Why?

This blog will focus on topics that media associations in the Sunshine in Government Initiative care about:  currently our major focus is the federal Freedom of Information Act (FOIA).  Recently, we’ve also urged officials to speak on the record.  In the past we’re looked at reporting based on unauthorized disclosures, or leaks.