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NOVEMBER 2019
SPOTLIGHT STORY

A reformer's noisy exit: Will Oregon heed the warning and end politicization of open-government laws?

Ginger McCall went out with a bang. Oregon's first official public-records ombudsman lasted only 17 months before resigning in frustration, citing political pressure from the governor's office to stop advocating for reforms in the state Freedom of Information Act. 

McCall is gone from her post as Public Records Advocate, created as part of a 2018 upgrade of Oregon's previously weak open-government laws, but she left behind a roadmap for reform. In an Oct. 9 report, McCall called on the state to enact legislation to make obtaining government records less costly and time-consuming.

Among the improvements McCall recommends: (1) cap and standardize the fees that state agencies charge to produce documents requested by the public, (2) end the practice of charging requesters for the high-priced hourly rates of government attorneys who review documents before they're produced, (3) create an appeal process short of going to court for requesters who are denied access to records maintained by elected officials, and (4) insulate the state ombudsman's independence from interference by the governor's office. While the report focuses on Oregon, it has lessons that could improve the way every state manages government documents and data.

Read the final ombudsman's report here...
WELCOME ABOARD
We're delighted to have the help of recent UF journalism graduate Tori Whidden as the Brechner Center's new Research Coordinator. 
Tori graduated from the University of Florida with a B.S. in Journalism in May 2019. Her reporting work has appeared on WUFT-FM, in the Independent Florida Alligator and in the Gainesville Sun, where she creates stories for print and digital publications as well as for social media.
At the Brechner Center, she leads a staff of student researchers gathering data through freedom-of-information requests to government agencies across the country. Working with Journalism Fellow Sara Ganim, she will be helping produce a multi-episode investigative reporting podcast debuting in the spring of 2020, focusing on issues of government secrecy.
FLORIDA FOCUS

Costly censorship: Banned prison newspaper awarded $1.2 million in legal fees from Florida taxpayers


A Tallahassee-based federal judge awarded the publishers of Prison Legal News nearly $1.2 million in attorney fees and litigtion costs to conclude a long-running battle over the Florida Department of Corrections' ban on distribution of the widely circulated monthly magazine, which reports on the correctional system nationwide.
In an earlier ruling, the U.S. district court found that the DOC violated the publishers' due-process rights by changing the rules about the content of publications allowed in Florida prisons without adequate notice. 

Source: Tallahassee Democrat

Third try for Florida legislative reform to ban "Revenge FOIA" suits


When a state, city or county agency is asked to produce public records, there are two permissible responses: Hand over the records, or cite an exemption in the Public Records Act that excuses compliance. But some aggressive government agencies have taken to trying a third option: Preemptively suing the requesters, forcing them to defend their entitlement to records in court, even if they can't afford to do so.

The practice, known as "revenge FOIA," is a tactic to inflict harm on members of the public to punish them for requesting access to records. Courts and legislatures elsewhere have banned the tactic, but Florida lawmakers have twice failed to act on a proposed legislative fix. The sponsor, state Rep. Ray Rodrigues, R-Estero, is back for a third try, and his bill has cleared its first House subcommittee review. 

Source: Tampa Bay Times

Environmentalist seeks relief from damages award for lobbying against developer


An environmental activist facing a crushing $4.4 million damages award to the developer whose project she lobbied against is taking her First Amendment case to the Florida Supreme Court.

Former Martin County Commissioner Maggie Hurchalla is asking the justices to overturn a judgment concluding that her email messages, urging commissioners to vote down a rock-quarry project, were unprotected by the First Amendment because of her wrongful intent to harm the developer's business. The judgment, which was upheld by Florida's Fourth District Court of Appeal, has been criticized for sending a chilling message to other citizen activists that, if they persuade their elected officials to vote against a business requesting a government permit, they may find themselves in court.

Source: TCPalm.com
GOVERNMENT GAGGED

Protecting public employees from retaliation for speaking to the news media


The Poynter Institute's Poynter.org journalism news site featured the Brechner Center's research that shows government agencies are routinely violating the First Amendment by gagging employees from speaking to the news media.
The Brechner Center study ("The First Amendment and Public Employees' Right to Speak to the News Media") provoked an editorial in the Vermont Cynic, urging the University of Vermont to reform its media-relations policies, which require employees to obtain clearance from a public-relations officer before they can answer questions from reporters: "When Cynic journalists are steered away from speaking with subject-matter experts, our freedom of the press is infringed upon, and the quality of our news reporting suffers."
Meanwhile, in a resolution adopted at its fall national convention, the Society of Professional Journalists called on federal agencies and Congress to remove barriers that inhibit government employees from speaking candidly with the press and public.  
 
LEGAL COMMENTARY

Nickled and dimed: Fees can put federal court records beyond the public’s reach

by Rachael Jones, Legal Fellow

Ten cents really doesn’t seem like a whole lot of cash when you think about. In a time when public records requests can carry price tags of up to $30,000.00 or more, seeing a rate of ten cents per page appears to be a downright steal. A cost of $2.00 for a 20-page report? Score! Right?

I’d say “wrong.” Recently, I saw a tweet from a colleague that explained he had already racked up a $500 in PACER fees for legal, academic research with no end in sight.  If you’re researching a court case with a lot of 30-page briefs and attachments, those dimes can start to pile up.

Fortunately, a federal appeals court has a chance to rein in the federal judiciary's profiteering off court records, in a pending case that has attracted support from advocates for journalists and public-interest lawyers across the country.

Read more here...

If you would like to become a contributor, please send an email to brechnerreport@jou.ufl.edu with your idea!
SAVE THE DATE

Free FOI training -- for requesters and custodians of records



What public records are available from state and local agencies in Florida, and what's the best way to get copies promptly and without getting overcharged? Join experts from the Brechner Center, the Gainesville Sun, and the City of Gainesville to talk about how the Florida open records act works, and best practices for everyone who deals with government data and documents. The event is free and open to anyone, Wednesday, Nov. 13, from 6 to 8 p.m. in the Chesterfield Smith Auditorium at UF's Levin College of Law in Gainesville.

RSVP via Facebook...
ACCESS ALL-STAR


    
Inspection reports of federally run correctional facilities should be no-brainer public records. The public has a compelling need to know whether federal law enforcement is detaining people under safe conditions -- and doubly so when people in federal custody turn up dead. Yet reporter Seth Freed Wessler was forced to spend more than two years in court battling the U.S. Marshals Service for seven years' worth of inspection records of dozens of facilities, which a federal district judge twice had to order a recalcitrant government to cough up. Wessler needed the documents for an investigation into more than 150 deaths of federal pretrial detainees across the country over a three-year span. The records, and Wessler's follow-up interviews, expose what he described in a report for Type Investigations and Mother Jones as "deeply flawed jails and a catastrophic failure of oversight throughout the Marshals’ penal system."

Read the story here...
FROM OUR PARTNERS

NFOIC releases best-practice guidance for getting the most out of FOI request portals


Automation has the potential to simplify and hasten agencies' production of public records -- but only if public employees are properly trained to use new online submission tools. In a new report by UF student researcher Stephan Chamberlin, the National Freedom of Information Coalition (NFOIC) explains how federal, state and local agencies can use online FOIA processing effectively to make obtaining public records quicker and less confrontational. Among the recommendations: Don't make online submission the only way the public can get records, use the same processing software across all departments, and voluntarily publish the most-requested data without waiting to receive a FOIA request.

 




Read the full NFOIC report...
 
THIS REALLY HAPPENED

Want police records?
This city demands an NDA with $1 million in penalties


Police are notoriously secretive about cases where officers are accused of overzealously using force, but the City of Tempe, Ariz., somehow managed to invent a new-and-different way of wiping its feet on the public's right of access.
An attorney representing the family of a teenager shot dead by a Tempe police officer was told that police reports, 911 recordings, body-cam videos and other records that Arizona law clearly entitles the public to inspect would not be made accessible unless he signed a nondisclosure agreement carrying a $1 million penalty. 
He didn't. And he's suing.

Read the story from Phoenix New Times 
 
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