ALEC's Latest "Transparency" Move: Asserting Immunity From Freedom of Information Laws

Tuesday, May 7, 2013 by PRWatch.org

by Brendan Fischer 

 

Shortly after the American Legislative Exchange Council (ALEC) told the press "we really believe in transparency," new documents show the organization directing legislators to hide ALEC meeting agendas and model legislation from the public. This effort to circumvent state freedom of information laws is being called "shocking" and "disturbing" by transparency advocates.

A disclaimer published at the bottom of meeting agendas and model bills from ALEC's most recent meeting in Oklahoma City, obtained by the Center for Media and Democracy, reads: "Because this is an internal ALEC document, ALEC believes it is not subject to disclosure under any state Freedom of Information or Public Records Act."

"If you receive a request for disclosure of this or any other ALEC document under your state's Freedom of Information or Public Records Act, please contact Michael Bowman, Senior Director, Policy and Strategic Initiatives," it says.

For a private organization to assert that its interactions with state legislators are not subject to public records laws is "shocking," says Mark Caramanica, Freedom of Information Director at the Reporters Committee for Freedom of the Press.

"Private individuals or organizations cannot simply label a document private and say it is private on their own. It is not their decision to make."

Legislators attend ALEC meetings in their official capacity, and ALEC has claimed that they do so "on behalf of and for the benefit of the state." Under almost every state’s public records law, all documents related to official business are considered public unless there is a specific exemption, defined and passed by the legislature, and embodied in the statutes. "ALEC cannot create exemptions of [its] own imagination," Caramanica told the Center for Media and Democracy.

The disclaimer is "disturbing," says Christa Westerberg, Wisconsin Freedom of Information Council Vice President, particularly because it "suggests legislators will contact ALEC first when they get a request for records and may be advised by ALEC on what to do."

"Courts and other entities with authority to interpret state sunshine laws, and not ALEC, should determine whether ALEC documents are subject to disclosure under any state’s public records law," she told CMD.

ALEC boasts that over 1,000 of its model bills are introduced each year and at least 1 in 5 become law. But despite its significant influence over state law and policy, ALEC conferences are closed to the press and public, and the only way Americans have had any notion of what happens in those meetings is through public records requests for the agendas and model bills.

Even before the "disclaimer" was discovered ALEC and its member legislators had been taking pains to avoid public records requests. Last year, CMD prevailed in a lawsuit against Wisconsin legislators who had tried evading the public records law by shifting their ALEC correspondence to a personal email account (like Gmail or Yahoo), which they erroneously asserted meant the emails were not subject to public records requests. And ALEC has begun sending legislators advance agendas and model bills via a link, which expires within 72 hours, to an Internet drop box where they can access the relevant documents; in many cases, when legislators respond to a request for ALEC records, they only release a scanned copy of the email invitation, rather than the contents of the folder available via the link. It is not known whether legislators refused to release these documents because ALEC asserted its immunity from public records law.

In March, ALEC published some of its model bills online in a move the organization claimed showed its commitment to transparency. "We really believe in transparency," alleged ALEC spokesperson Bill Meierling. But its public records "disclaimer" and other actions indicate the organization is far more interested in maintaining secrecy.

"This certainly raises the question," asks Caramanica, “what are their motives for trying to keep their documents secret?”

ALEC legislators cannot have it both ways. They cannot use public money to attend ALEC meetings -- as the Republican-led South Dakota legislature recently approved -- or claim that accepting corporate-funded flights and hotel rooms for ALEC travel are part of their legitimate work responsibilities, then conspire with ALEC to hide documents and information from their constituents that should be accessible under freedom of information laws.

Do as We Say, Congress Says, Then Does What It Wants

Friday, 01 February 2013
By Theodoric Meyer, ProPublica | News Analysis


When CBS News reported in 2011 that members of Congress weren’t prohibited from insider trading, Congress moved swiftly. President Obama signed a law banning it within six months of the broadcast.

But Congress is still exempt from portions of a number of federal laws, including provisions that protect workers in the private sector but don’t apply to the legislative branch’s approximately 30,000 employees.

Here’s our rundown of measures Congress exempts itself from:

Whistleblower Protections: Congress passed the Whistleblower Protection Act in 1989, which protects workers in the executive branch from retaliation for reporting waste, mismanagement or lawbreaking. The Sarbanes-Oxley Act gives similar protections to private-sectors workers. But legislative-branch workers — a category that includes congressional staffers as well as employees of the Library of Congress, the Architect of the Capitol and other offices —don’t get the same protections. 

Subpoenas for Health and Safety Probes: The Occupational Health and Safety Act empowers the U.S. Department of Labor to investigate health and safety violations in private-sector workplaces. If an employer doesn’t cooperate, the agency can subpoena the records it needs. The Office of Compliance, the independent agency that investigates such violations in the legislative branch, doesn’t have the power to issue those subpoenas. 

Keeping Workplace Records: A number of workplace-rights laws — the Age Discrimination in Employment Act, the Americans with Disabilities Act and others — require employers to retain personnel records for a certain period of time. But as a recent report on the congressional workplace notes, “Congress has exempted itself from all of these requirements.” Congress is also exempt from keeping records of injuries and illness the way private-sector employers are. 

Prosecution for Retaliating Against Employees: If a private-sector employer retaliates against a worker for reporting health or safety hazards, the Department of Labor can investigate and, if necessary, sue the employer. Congress’ Office of Compliance doesn’t have that power — legislative-branch employees must file suit personally and pay their own legal fees. 

Posting Notices of Workers’ Rights: Workplace-rights laws require employers to post notices of those rights, which often appear in office lunchrooms. Congress is exempt from this requirement, though this has little real-world impact. The Office of Compliance sends legislative employees the same information each year, formatted “in a manner suitable for posting.”

Anti-Discrimination and Anti-Retaliation Training: The No Fear Act requires agencies in the executive branch to provide such training to employees, but the legislative branch is exempt. 

The Freedom of Information Act: The public can request information from federal agencies, but Congress, the federal courts and some parts of the Executive Office of the President are exempt.

In addition to sparing itself from complying with measures it has made mandatory for others, Congress is violating of some of the laws that do apply to it, according to a recent report from the Office of Compliance. (The pint-sized agency, created by Congress in 1995, is responsible for enforcing a number of workplace-rights laws in the legislative branch.) The sidewalks surrounding the three House office buildings, the report noted, don’t comply with the Americans with Disabilities Act. Neither do the restrooms in the House and Senate office buildings and the Library of Congress’ James Madison Building.

The Office of Compliance cites certain congressional exemptions as particularly problematic. The agency’s inability to subpoena information regarding some legislative workers’ complaints about health and safety often means the office must negotiate with congressional offices to gather the facts it needs.

“It can tie our hands sometimes,” said Barbara J. Sapin, the office’s executive director.

The Office of Compliance has urged Congress to apply the laws listed above to itself — except the Freedom of Information Act — with little result. Eleanor Holmes Norton, the non-voting delegate who represents the District of Columbia, introduced a bill in 2011 to do this, but it died in committee.

The number of complaints of discrimination and harassment filed by legislative-branch workers with the Office of Compliance has nearly doubled in the last two years, from 102 in the 2009 fiscal year to 196 in the 2011 fiscal year. Workers’ complaints about retaliation or intimidation have risen even more sharply, from 36 in fiscal year 2009 to 108 in fiscal year 2011.

Even so, Debra Katz, a Washington lawyer who specializes in workplace-rights law, said some Capitol Hill employees might be holding back from filing complaints. House and Senate staffers, she said, are often reluctant to speak up about harassment or discrimination for fear of jeopardizing their careers.

“People are very loath to burn bridges by filing a complaint or going to the Office of Compliance,” she said. “They don’t want to go forward with bringing a claim, even when it’s covered under the law.”

White House wins fight to keep drone killings of Americans secret

03 January, 2013
RT

A federal judge issued a 75-page ruling on Wednesday that declares that the US Justice Department does not have a legal obligation to explain the rationale behind killing Americans with targeted drone strikes.

United States District Court Judge Colleen McMahon wrote in her finding this week that the Obama administration was largely in the right by rejecting Freedom of Information Act (FOIA) requests filed by the American Civil Liberties Union and The New York Times for materials pertaining to the use of unmanned aerial vehicles to execute three US citizens abroad in late 2011 [pdf].

Anwar al-Awlaki and Samir Khan, both US nationals with alleged ties to al-Qaeda, were killed on September 30 of that year using drone aircraft; days later, al-Awlaki’s teenage son, Abdulrahman al-Awlaki, was executed in the same manner. Although the Obama administration has remained largely quiet about the killings in the year since, a handful of statements made from senior White House officials, including Pres. Barack Obama himself, have provided some but little insight into the Executive Branch’s insistence that the killings were all justified and constitutionally-sound. Attempts from the ACLU and the Times via FOIA requests to find out more have been unfruitful, though, which spawned a federal lawsuit that has only now been decided in court.

Siding with the defendants in what can easily be considered as cloaked in skepticism, Judge McMahon writes that the Obama White House has been correct in refusing the FOIA requests filed by the plaintiffs.

"There are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a 'hot' field of battle," McMahon writes in her ruling. Because her decision must only weigh whether or not the Obama administration has been right in rejecting the FOIA requests, though, her ruling cannot take into consideration what sort of questions — be it historical, legal, ethical or moral — are raised by the ongoing practice of using remote-controlled drones to kill insurgents and, in these instances, US citizens.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22,” she writes. “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Throughout her ruling, Judge McMahon cites speeches from both Pres. Obama and Attorney General Eric Holder in which the al-Awlaki killings are vaguely discussed, but appear to do little more than excuse the administration’s behavior with their own secretive explanations.

“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a US citizen,” McMahon quotes Mr. Holder as saying during a March 2012 address at Chicago’s Northwestern University. “Holder did not identify which recent court decisions so held,” the judge replies, “Nor did he explain exactly what process was given to the victims of targeted killings at locations far from ‘hot’ battlefields…”

And while both Mr. Holder and Pres. Obama have discussed the killings in public, including one appearance by the president on the Tonight Show with Jay Leno, the Justice Department insists that going further by releasing any legal evidence that supports the executions would be detrimental to national security.

While Judge McMahon ends up agreeing with the White House, she does so by making known her own weariness over how the Obama administration has forced the court to rely on their own insistence that information about the attacks simply cannot be discussed.

“As they gathered to draft a Constitution for their newly liberated country, the Founders — fresh from a war of independence from the rule of a King they styled a tyrant — were fearful of concentrating power in the hands of any single person or institution, and most particular in the executive,” McMahon writes.

Responding to the decision on Wednesday, ACLU Deputy Legal Director Jameel Jaffer issued a statement condemning the White House’s just-won ability to relieve itself from any fair and honest explanation as to the justification of Americans.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” Jameel writes. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime.”

The ACLU says they plan to appeal Judge McMahon’s decision and are currently awaiting news regarding a separate lawsuit filed alongside the Center for Constitutional Rights that directly challenges the constitutionality of the targeted kills.

“The government has argued that case should also be dismissed,” the ACLU notes.

In a Wednesday afternoon statement from the Times, assistant general counsel David McCraw says the paper will appeal the ruling as well.

"We began this litigation because we believed our readers deserved to know more about the US government's legal position on the use of targeted killings against persons having ties to terrorism, including US citizens," McCraw says.

Although she ruled against the plaintiffs, Judge McMahon, says McCraw, explained "eloquently … why in a democracy the government should be addressing those questions openly and fully."

Privatization Threatens Open Government

Saturday, 24 March 2012 | By Donald Cohen, In the Public Interest 



On July 4, 1966, President Lyndon Johnson signed the Freedom of Information Act (FOIA) into law, establishing the public's right to access to government information. Surprisingly, Republican Congressman Donald Rumsfeld helped deliver Republican votes to pass the groundbreaking law.

Since then, state governments followed suit and began passing open government laws across the country to ensure the public would have "sunshine" and access to information about the way public services and tax dollars are managed.

But the laws are out of date and need an overhaul. The explosion in the use of government contractors at every level of government -- from local trash services to security contractors in Iraq - has exposed weaknesses in sunshine and open record laws.

In some cases, conservative governors are even trying to weaken existing transparency requirements to make it easier to privatize. Florida Governor Rick Scott's failed proposal to privatize prisons in eighteen counties included a provision to eliminate the requirement for a cost-benefit analysis before moving ahead with the deal. Coincidentally, Florida-based GEO Corporation, one of the largest private prison companies, is a major contributor to GOP campaigns in the state.

Under existing law, private contractors in states throughout the country are evading oversight by exploiting loopholes in transparency protections. Most existing state laws don't pierce the corporate veil and now policy makers, journalists and advocates no longer have access to basic financial, performance and workforce information that is essential to government accountability.

For example:

In South Carolina, the Jenkinsville Water Company, a private utility, refused to comply with requests for information after they had failed to pay state employee payroll taxes, lost millions of gallons of water, and could not account for tens of thousands of dollars.

In Oklahoma, a private emergency service contractor, Paramedics Plus, refused to disclose the driving records of ambulance drivers after one who had caused a fatal car accident was found to havebeen convicted of criminal driving charges.

Immigration and Customs Enforcement (ICE) was "unable to locate or identify any responsive records" about personnel at an immigration detention facility operated by Cornell Corrections after allegations of misconduct surfaced.

In all these cases, current open records laws would have produced the information if government agencies had been providing the services or operating the facilities.

A few states are leading the way. Connecticut law now require large contracts to be covered by the state's freedom of information act. Minnesota requires contractors to makes public any government data that the contractor"creates, collects, receives, stores, uses, maintains, or disseminates."

Most states have not yet followed their lead. In an era of government by contract, federal, state and local governments should strengthen existing open records laws to expand the reach to government contractors.At a minimum,a complete list of contracts and contractors should be online. Handing over control of public services to private contractors shouldn't mean giving up the public's right to know.

For more information on the effects of government contracting and privatization on our access to public information, check out our new report "Floodlights Instead of Flashlights: Sunshine Laws Out of Step with Government Contracting Leaves Public and Lawmakers in the Dark".

Fed secretly loaned $1.2 trillion in public money to Wall St. firms

By Stephen C. Webster - RAW Story

Monday, August 22nd, 2011

An analysis of tens of thousands of documents obtained by Bloomberg through a Freedom of Information Act (FOIA) request shows that the U.S. Federal Reserve made approximately $1.2 trillion in loans from public money to support Wall Street firms in the midst of one of the worst financial crises ever.

Differing from the $16 trillion in loans made through asset swaps and preferred stock agreements, which were first revealed by a recent Government Accountability Office (GAO) audit mandated by Congress, these loans came from public money, representing the greatest largess of the financial sector during a crisis that threatened to pull the whole globalized system of finance to its knees.

Made from August 2007 through April 2010, the largest borrowers included familiar names like Morgan Stanley, which took $107.3 billion; Citigroup at $99.5 billion; and Bank of America with $91.4 billion.

Foreign firms got a piece of the pie too: the Royal Bank of Scotland Plc was given $84.5 billion; UBS AG took $77.2 billion; and German bank Hypo Real Estate Holding AG took out $28.7 billion, according to Bloomberg.

The Fed claimed it suffered "no credit losses" on the emergency loans, insisting that it has even made back over $13 billion in interest and fees. The loans were made in secret, and not even disclosed to the GAO, to prevent the appearance of weakness in the system, the Bloomberg report said.

Obama Pressed to Release Identity of Telecom Lobbyists

The number of similarities between Obama's and Bush's role as president is disturbing. Prior to Obama taking office, I would have bet there would be few of them.

Obama Pressed to Release Identity of Telecom Lobbyists

Sunday 21 February 2010

by: William Fisher, t r u t h o u t | Report

Despite President Barack Obama's pledge in the State of the Union address to "require lobbyists to disclose each contact they make on behalf of a client with my administration or Congress," the Electronic Frontier Foundation (EFF) says the Obama administration has been "fighting hard to stop the release of the names of these representatives."

EFF urged, "While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the administration must do more than give speeches in order to fulfill its commitment to transparency."

It said President Obama "must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for their telecommunications carrier clients."

For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.

"With the help of lobbyists from AT&T, Verizon and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program," EFF contends.

The group says the administration "must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for their telecommunications carrier clients."

Professor Peter Shane of the Ohio State University's law school is among many legal experts who agree with the EFF position. He told us, "On his first full day in office, President Obama issued a presidential memorandum that declared: 'The presumption of disclosure should be applied to all decisions involving FOIA.' Pursuant to the Obama directive, Attorney General Eric Holder two months later issued a new Justice Department FOIA policy that declared: 'The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.' It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists."

Last week, a federal appeals court in San Francisco agreed with EFF, Professor Shane and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.

The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.

EFF called the ruling "an important one for government and corporate accountability." EFF staff attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."

But a number of legal authorities believe there is an even broader issue at play: The Obama administration's continuance of its predecessor's court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told us, "US Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in US federal court."

He called Kagan "a closet neoconservative," adding, "She has supported at all levels of litigation in US federal courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration."

Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told us, "Like President Obama's reversals and actions against accountability in other areas - including his support of the Patriot Act, FISA Amendments Act, telecom immunity and his failure to prosecute Bush officials and release the photos that evidence torture - the president's continuing to invoke national security and the state secret privilege to shield lobbyists' actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change."

He stressed that "It's vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty and freedom from infringements by powerful actors. Unwarranted 'privacy' claims by those special interests should not be used as an excuse to block the public's legitimate right to know how decisions affecting fundamental rights are made."

The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.

After the decision was announced, EFF Attorney Kevin Bankston noted that "Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin."

EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama administration's hypocrisy. "Considering that Obama "campaigned for a return to the rule of law, it's disappointing ... to have them turn around and say that courts can't even look at these cases."

EFF's Kevin Bankston also finds the government's position "in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June 2008 Eric Holder, now attorney general, said in a speech that: 'Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government ... approved secret electronic surveillance of American citizens.... These steps were wrong when they were initiated and they are wrong today.'"

Similarly, he says, "The Obama-Biden campaign Web site includes state secrets as part of 'The Problem' that President Obama would address, complaining that the Bush administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.