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                              E P I C   A l e r t
Volume 16.05                                             March 17, 2009

                                Published by the
                   Electronic Privacy Information Center (EPIC)
                                Washington, D.C.


			"Defend Privacy. Support EPIC."

                        Special Open Government Edition

Table of Contents
[1] President Obama's Open Government Initiative
[2] EPIC's Freedom of Information Highlights
[3] Sunshine Week 2009 Survey Finds Important Data Unavailable
[4] Funding Enables Office of Government Information Services
[5] FBI Records Lowest Performance for FOIA Performance
[6] News in Brief
[7] EPIC Bookstore: 2008 FOIA Manual
[8] Upcoming Conferences and Events
        - Join EPIC on Facebook http://epic.org/facebook
  	- Subscription Information
  	- Privacy Policy
  	- About EPIC
  	- Donate to EPIC http://epic.org/donate

[1]President Obama's Open Government Initiative

President Obama, on the first day of office, issued a memorandum for
the Heads of Executive Departments and Agencies. He declared that his
administration was committed to creating an unprecedented level of
openness in Government. Quoting Justice Louis Brandeis, President
Obama had declared "sunlight is the best disinfectant." President
Obama had further stated "in our democracy, the Freedom of Information
Act, which encourages accountability through transparency, is the most
prominent expression of a profound national commitment to ensuring an
open Government. At the heart of that commitment is the idea that
accountability is in the interest of the Government and the citizenry

Ushering in a new era in transparency, President Obama declared that
The Freedom of Information Act should be administered with a clear
presumption of openness. In response to FOIA requests, President Obama
urged agencies to act promptly and in a spirit of cooperation since all
"agencies were servants of the public." "All agencies should adopt a
presumption in favor of disclosure, in order to renew their commitment
to the principles embodied in FOIA, and to usher in a new era of open
Government. The presumption of disclosure should be applied to all
decisions involving FOIA," President Obama declared. The memorandum
exhorted agencies to take affirmative steps to make information public
without waiting for specific requests from the public.

The memorandum directs the Attorney General to issue new guidelines
governing the FOIA to the heads of executive departments and agencies,
reaffirming the commitment to accountability and transparency, and to
publish such guidelines in the Federal Register. The Director of the
Office of Management and Budget was also charged with updating guidance
to the agencies to increase and improve information dissemination to
the public, including through the use of new technologies, and to
publish such guidance in the Federal Register.

President Obama issued another memorandum on "Transparency and Open
Government". This memorandum stated that Governments should be
transparent as it promoted accountability and provided information for
citizens about what their Government was doing. Promoting a
participatory and collaborative Government, President Obama wanted his
the Executive departments and agencies in his administration to offer
Americans increased opportunities to participate in policymaking and to
provide their Government with the benefits of their collective
expertise and information. The President's Executive orders also
included active collaboration that engages citizens in the work of
their Government, innovation and public feedback as the bedrock of the
new administration.

In a recent memorandum dated March 9, 2009, the President stated that
"Science and the scientific process must inform and guide decisions of
my Administration on a wide range of issues, including improvement of
public health, protection of the environment, increased efficiency in
the use of energy and other resources, mitigation of the threat of
climate change, and protection of national security." He directed
political officials not to suppress or alter scientific or
technological findings and conclusions and wanted such information 
developed and used by the Federal Government, to be ordinarily made
available to the public. President Obama assigned the Director of the
Office of Science and Technology Policy the responsibility for ensuring
the highest level of integrity in all aspects of the executive branch's
involvement with scientific and technological processes.

Memorandum of January 21, 2009 - Freedom of Information Act:

Memorandum of January 21, 2009 - Transparency and Open Government:

Memorandum of March 9, 2009 - Scientific Integrity:

[2] EPIC's Freedom of Information Highlights

EPIC, in its pursuit of enabling an Open Government, has made frequent
use of the Freedom of Information Act to obtain data from the
government about surveillance and privacy policy. Public disclosure
of obtained information improves government oversight and
accountability and keeps the public informed about the activities of
the government. EPIC has sued several agencies to seek out information
which the public has a right to know.

In January 2008, EPIC filed Virginia FOIA requests with the Virginia
Department of State Police for public records that directly relate to
alleged federal government involvement with a bill that would exempt
Virginia Fusion Intelligence Center from Virginia privacy and
government transparency laws. After VSP failed to disclose any public
records, EPIC filed a lawsuit challenging VSP's non-compliance with
Virginia FOIA. EPIC subsequently won a judgment against the VSP and
an award of fees.

On October 31, 2008, a federal judge ordered the Department of
Justice to provide for independent judicial inspection of documents
relating to the President's warrantless wiretapping program. In
EPIC v. DOJ, EPIC, the ACLU, and the National Security Archive
are seeking documents authored by government lawyers regarding
the President's warrantless wiretapping program. The opinions,
prepared by the Office of Legal Counsel, provided the legal basis
for the President to wiretap American citizens in the United
States without court approval.

EPIC has also filed FOIA requests with the Department of
Homeland Security concerning promotion of the E-Verify Program,
the Department of Health and Human Services for information
obtained through Google Flu Trends, and with the Department of
Justice for the final version of the Attorney General Domestic
Surveillance Guidelines.

EPIC - Open Government:

Freedom of Information Act Gallery:

EPIC's FOIA Litigation Docket:

EPIC v. DOJ Page on the National Security Agency's
Warrantless Surveillance Program:

Court Order Requiring Judicial Review of DOJ Documents:

EPIC's Complaint Against the Department of Justice:

[3] Sunshine Week 2009 Survey Finds Important Data Unavailable

The Sunshine Week 2009 Survey of State Government Information online
found that although many government records were being posted online,
most important pieces of information was not made public and some
governments were charging twice for access to records. The surveyors
used a standardized worksheet and rated each section on whether it was
linked from the state department or agency's home page, whether the
information and the downloading was free of charge, whether the data
was current and when it was last updated, if the site provided
summarized statistical information or barebones lists, and if the site
provided original, detailed reports.

The major findings of the survey showed that the information least
likely to be found online were death certificates, found on the Web
sites of only five states, and gas pump overcharge records, available
online in eight. Also, schools' building inspections and/or safety
ratings were infrequently posted online - only nine states, and school
bus inspection reports, was posted online only in 13 states. The data
available widely online included statewide school test scores and DOT
projects/contracts, online in 50 and 48 states, respectively. Campaign
data was found online in 47 of the 50 states; disciplinary actions
against medical physicians in 47 states; and financial audits in 44
states. Consumer complaints were available for 24 states.

The survey seemed to indicate that death certificates were a revenue
source in many states as they charged relatives and "legitimately"
interested parties for copies of the records, or outsourced the work
to a third-party service. Additionally, some states provided historical
access online to older death certificates although generally a fee
was applied for hard copies.

Newspaper and broadcast journalists, journalism students, state press
associations, and reporters and editors from The Associated Press
conducted the state government surveys. The Committee Co-Chair stated
that although many states understood that digitizing public records was
key to open government in the 21st century, with a few exceptions,
states had a long way to go before they become truly transparent.
Texas was the only state found to provide information online in all the
categories, whereas Mississippi was the state with the least information.

Sunshine Week 2009 Survey Of State Government Information Online:

Sunshine Week Survey Worksheet:

Chart Showing Information Categories Viewable Free Online:

EPIC's Page on Public Opinion on Privacy:

[4] Funding Enables Office of Government Information Services

The Office of Government Information Services in the National
Archives and Records Administration is being established after it
received key funding. The omnibus appropriations bill passed by the
Senate on March 10 includes $1 million for the establishment of OGIS.
The OGIS was originally mandated under the Openness Promotes
Effectiveness in our National Government Act of 2007, but the National
Archives did not have the necessary budget to establish OGIS.

The OGIS was created to review policies and procedures of
administrative agencies; review compliance by administrative agencies;
and recommend policy changes to Congress and the President to improve
the administration. The OGIS was also charged with mediating
inter-agency Freedom of Information requests, review agency
compliance with requests, and enable the FOIA ombudsman. The omnibus
appropriations bill which includes funding to reconstitute the Privacy
and Civil Liberties Oversight Board, was established at the
recommendation of the 9/11 Commission to help protect privacy and civil
liberties. The Government Accountability Office was given the
responsibility of conducting audits of administrative agencies on the
implementation and subsequently issue reports detailing the results of
such audits.

The National Archives and Records Administration assists federal
agencies and the public with research and reference services and provide
agencies with records storage, access, and disposition services through
a national network of facilities. The OPEN Government Act is supposed
to strengthen FOIA and close loopholes, by protecting access to FOIA
fee waivers for legitimate journalists, regardless of institutional
association - including bloggers and other Internet-based journalists.
The statute is also supposed to help FOIA requestors obtain more timely
responses, by establishing FOIA hotline services, either by telephone
or on the Internet to enable requestors to track the status of their
FOIA requests and creating a new FOIA ombudsman to review agency FOIA
compliance and to provide alternatives to litigation.

The legislation also ensures that agencies have strong incentives to
act on FOIA requests in a timely fashion, by restoring meaningful
deadlines that require agency action on FOIA requests within 20 days of
their receipt and imposing real consequences on federal agencies for
missing statutory deadlines.

Senators Patrick Leahy and John Cornyn, who sponsored the bill, stated
that they considered open government to be a prerequisite for a free
society, and that accountability was only an empty promise without
transparency. They intended their legislation to provide reporters,
bloggers and other citizen-journalists with the tools they needed to
continue to improve the ongoing work of defending and refining 
American democracy.

Critical FOIA Office Receives Funding In Omnibus:

Senator Leahy's Statement about the OPEN Government Act, 2007:

Text of the OPEN Government Act:

[5] FBI Records Lowest Performance for FOIA Performance

The annual Rosemary Award for the year 2009 has been awarded to the
Federal Bureau of Investigation. The award is given out by The National
Security Archive at The George Washington University. It recognizes
outstandingly bad responsiveness to the public that flouts the letter
and spirit of the Freedom of Information Act. The Award is named after
President Nixon's secretary Rose Mary Woods and the backwards-leaning
stretch with which she erased an eighteen-and-a-half minute section of
a key Watergate conversation on the White House tapes.

Out of a total of 61,272 requests, the Justice Department denied
15,886 based on "no records". The agency backlog for the fiscal year
was 4,364. The agency received 52,260 requests from last year's report
and 59,615 from the current annual report. The agency processed 53,889
requests from last year's report and 61,272 from the current annual

In a case filed before the District Court for the District of Columbia,
the Section Chief for Records/Information Dissemination at the FBI
Headquarters explained that FBI files are indexed only by reference
terms that have to be manually applied by individual agents. Further,
the usual procedure was to look in a central database and thereby not
turning up any record stored at FBI offices around the country, records
before 1970s, and paper records indexed manually. Additionally, even if
the record were sent directly to the field office, the procedure
adopted was to forward the request to the central office where the data
could not be located. Only after filing suit, the FBI would perform a
broader search.

The FBI itself has recognized that its recordkeeping and search
capabilities are deficient and has some of the longest average response
times in the federal government. The FBI has also been faulted with
having a routine practice of refusing to process requests unless
requesters obtain a privacy waiver from living individuals about whom
they have requested information. Another problem highlighted with the
FBI was failing to properly maintain and preserve its historical records
leading to destruction or inaccessibility of important records.

Previous winners of the Rosemary award have included The Department of
Treasury, The Air Force and The Central Intelligence Agency. In the
past, EPIC has filed several Freedom of Information requests with the
Justice Department with some leading to lawsuits.

2009 Rosemary Award for Worst FOIA Performance Goes to FBI:

2009 Rosemary Award:

FBI wins Rosemary Award - Background Memorandum:

Declaration of FBI Section Chief for Records/Information Dissemination:

U.S. Department of Justice, Freedom of Information Act Annual Report
(Fiscal Year 2008):

EPIC's Litigation Docket:

[6] News in Brief

Obama Administration Refuses to Divulge Contents of ACTA

The United States Trade Representative denied a Freedom of Information
request filed by Knowledge Ecology International to uncover documents
pertaining to Anti-Counterfeiting Trade Agreement. The ACTA is being
drafted to reduce the global trade of counterfeit goods and pirated
copyright protected works as well as internet distribution and
information technology. The denial states that the documents were being
withheld since it was classified in the interest of National Security
pursuant to Executive Order 12958. Previously, Senators Patrick Leahy
and Arlen Specter of the Senate Judiciary Committee had expressed
concern that ACTA may not have been drafted with sufficient flexibility
and could limit Congress's ability to make appropriate refinements to
intellectual property law in the future. Meanwhile, European Parliament
Members have called on the Commission to make available all documents
related to ACTA.

USTR's Denial of FOIA Request to KEI:

Access to Documents: The European Parliament Demands More Transparency:

Senators' letter to USTR:

Wikileaks: ACTA discussion paper:

Letter to Anti-counterfeiting Trade Agreement Negotiators:

Poll Finds Government Continues to be Perceived as Secretive

In a Sunshine Week poll conducted by the Scripps Howard News Service
and Ohio University involving 1012 adults, the government was more
often thought to be secretive than not. With respect to local
government, about 40 percent stated that they viewed it as somewhat or
very secretive. In contrast, 74 percent of the interviewed population
considered the federal government as somewhat or very secretive. The
study also found that 87 percent decided voting issues based on
a presidential candidate's position.

Scripps Howard News Service Poll:

2009 FOI Conference Meets at the Newseum

The 11th Annual National FOI Day Conference for this year was themed
"Freedom and Information: Looking Back and Looking Forward." Legal
scholars, lawyers and journalists discussed the state of freedom
of information since the change in administration and its prospects
under President Obama. Rep. John Conyers Jr., D-Mich., was the
keynote speaker for the conference which brought together access
advocates, government officials, lawyers, librarians, journalists,
educators and others. It was presented in association with Sunshine
Week, the American Library Association and OpenTheGovernment.org.
The First Amendment Center works to preserve and protect First
Amendment freedoms through information and education.

Conyers to headline FOI Day:

2009 National FOI Day Conference: Agenda:

National FOI Day:

National Press Club Hosts FOIA Tutorial

The National Press Club is hosting a tutorial on use of the Freedom of
Information Act and state FOIA laws. The class is supposed to aid
reporters in "shining light on government activity." The class will
examine the types of records one can actually expect to acquire and
facts that have already been disclosed as a result of FOIA requests.
The meet will also discuss documents which can be difficult to acquire
from the government directly, but could be acquired from alternative
sources. The Press Club class will also show the recent changes to FOIA
and look at how the new administration appears to be treating
government transparency issues generally and also discuss access trends
in the states.

FOIA Class 10 am March 18:

OpenTheGovernment's Live Transparency Session

The OpenTheGovernment.org website will present a great opportunity for
the public to be involved in the creation of a directive that will
give effect to President Obama's memorandum on Transparency and Open
Government directing his Administration to develop recommendations for
an "Open Government Directive" that moves government towards being
"transparent," "participatory," and "collaborative."  During the
webcast, individuals who are involved in formulating the
Administration's policies and agendas will detail the initiative's
objectives and receive feedback from the audience. The event will
feature a discussion between speakers and the audience on what the
Obama administration hopes to achieve, the policy issues facing the
administration, the Obama administration's vision for e-government, and
financial and economic transparency. Vivek Kundra, the newly-appointed
federal Chief Information Officer has also been invited. The event
will be held at the Center for American Progress (1333 H Street, NW,
Washington, D.C.) and webcast to sites around the country.

Opening Doors: Finding the Keys to Open Government:

[7] EPIC Bookstore: "2008 FOIA Manual"

"Litigation Under the Federal Open Government Laws 2008", edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, and Mark S. Zaid
(EPIC 2008)


"The EPIC FOIA litigation manual will help ensure that those who are
pursuing open government requests understand their rights, and the
best strategies to pursue their requests."

                               Senator Patrick Leahy,
                                co-sponsor of the OPEN Government Act
                                of 2007

"Deserves a place in the library of everyone who
is involved in, or thinking about, litigation
under the Freedom of Information Act."

                              - Steve Aftergood,
                                Federation of American Scientists

Litigation Under the Federal Open Government Laws is the standard
reference work covering all aspects of the Freedom of Information Act,
the Privacy Act, the Government in the Sunshine Act, and the Federal
Advisory Committee Act. The 2008 edition includes a foreword by
Senator Patrick Leahy, co-sponsor of the OPEN Government Act of 2007. 

The EPIC FOIA litigation manual is the most comprehensive,
authoritative discussion of the federal open access laws. This updated
version includes new material regarding the substantial FOIA amendments
enacted on December 31, 2007 as the OPEN Government Act of 2007. Many
of the amendments are effective as of December 31, 2008. 

The fully updated 2008 volume is the 24th edition of the manual that
lawyers, journalists and researchers have relied on for more than 25
years. Litigation Under the Federal Open Government Laws is published
by EPIC in cooperation with Access Reports and the James Madison
Project. The book draws upon the expertise of practicing attorneys who
are recognized experts in the field. The 24th edition includes updates
concerning the OPEN Government Act of 2007, a revised chapter regarding
litigation strategy, international open government resources, a
glossary of key terms, and is updated with new significant cases.

Appendices include a sample FOIA request, a sample request for
expedited processing, and sample pleadings for the FOIA, the Privacy
Act, and Federal Advisory Commission Act, and the Government in the
Sunshine Act.

For those who litigate open government cases, or need to learn how to
litigate them, this is the essential reference manual.

Order Litigation Under the Federal Open Government Laws 2008:


"Information Privacy Law: Cases and Materials, Second Edition" Daniel
J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.


This clear, comprehensive introduction to the field of information
privacy law allows instructors to enliven their teaching of fundamental
concepts by addressing both enduring and emerging controversies. The
Second Edition addresses numerous rapidly developing areas of privacy
law, including: identity theft, government data mining and electronic
surveillance law, the Foreign Intelligence Surveillance Act,
intelligence sharing, RFID tags, GPS, spyware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive foundation
for an exciting course in this rapidly evolving area of law.


"Privacy & Human Rights 2006: An International Survey of Privacy Laws
and Developments" (EPIC 2007). Price: $75.

This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy in over
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating to privacy.
Privacy & Human Rights 2006 is the most comprehensive report on privacy
and data protection ever published.


"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on
the Information Society" (EPIC 2004). Price: $40.


This resource promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS). This
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals for
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more involved in the
WSIS process.


"The Privacy Law Sourcebook 2004: United States Law, International Law,
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:


The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource for students,
attorneys, researchers, and journalists interested in pursuing privacy
law in the United States and around the world. It includes the full
texts of major privacy laws and directives such as the Fair Credit
Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well
as an up-to-date section on recent developments. New materials include
the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the


"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
Controls" (EPIC 2001). Price: $20.


A collection of essays, studies, and critiques of Internet content
filtering. These papers are instrumental in explaining why filtering
threatens free expression.


EPIC publications and other books on privacy, open government, free
expression, crypto and governance can be ordered at:

EPIC Bookstore

"EPIC Bookshelf" at Powell's Books


EPIC also publishes EPIC FOIA Notes, which provides brief summaries of
interesting documents obtained from government agencies under the
Freedom of Information Act.

Subscribe to EPIC FOIA Notes at:

[8] Upcoming Conferences and Events

"Conference on International Aspects of Securing Personal Data,"
The Federal Trade Commission, Washington, D.C., March 16-17, 2009.
For more information, http://ftc.gov/opa/2008/12/datasec.shtm

"Security and Privacy in the Electronic Age" 
Old Parliament Building, Athens, Greece, March 19, 2009.

UC Berkeley Law School, BCLT Second Annual Privacy Lecture,
"Confronting the Third Party Doctrine and the Privacy of Personal
Information," March 18, 2009 at Bancroft Hotel, 2680 Bancroft Way,
Berkeley, CA 94704. For more information,

Notice and Request for Public Comments by the Federal Trade Commission
on Digital Rights Management Technologies.
Event: Wednesday, March 25, 2009, Seattle, WA.
For more information,

"Toward a Legal Framework for Identity Management"
Oxford Internet Institute, Oxford, England, April 2-3, 2009.
For more information, http://www.oii.ox.ac.uk/

"2nd Privacy OS Conference," MediaCentre, Berlin, Germany, April 1-3,
2009. For more information, http://www.privacyos.eu

"THE FUTURE OF PRIVACY: What's Next?" - a one day seminar.
April 28, 2009, Cartier Suites Hotel, 180 Cooper Street,
Ottawa, Canada. For more information,

"2nd Annual Research Symposium for the Identity, Privacy and
Security Initiative," , May 6, 2009, University of Toronto.
For more information, http://www.ipsi.utoronto.ca/site4.aspx

IEEE Symposium on Security and Privacy, May 17-20, 2009,
The Claremont Resort, Oakland, California. For more information,

Web 2.0 Security & Privacy 2009, Thursday, May 21,
The Claremont Resort, Oakland, California. For more information,

Computers, Freedom, and Privacy, 19th Annual Conference, Washington,
D.C., June 1-4, 2009. For more information,

"The Transformation of Privacy Policy," Institutions, Markets
Technology Institute for Advanced Studies (IMT)Lucca, Italy, July 2-4,

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About EPIC

The Electronic Privacy Information Center is a public interest research
center in Washington, DC. It was established in 1994 to focus public
attention on emerging privacy issues such as the Clipper Chip, the
Digital Telephony proposal, national ID cards, medical record privacy,
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------------------------- END EPIC Alert 16.05-------------------------