ASNE hopeful for passage of free flow act

• By: ASNE staff
• On: 07/21/2009 00:00:00
• In: ASNE business

It's not just the temperature that's heating up as we move into the summer months in Washington. ASNE is active on legal and policy matters before every branch of government as Congress and the new administration have finally settled in and gotten down to business. Here's a quick update:

Shield Law

We are moving closer to taking another big step toward passage of a federal shield law, as  S 448, the Free Flow of Information Act, was scheduled for a possible vote in the Senate Judiciary Committee Thursday, July 9.

ASNE and other groups were very hopeful that the vote would occur before the Committee turned its attention to the nomination of Sonia Sotomayor to the Supreme Court. That did not occur, but we still believe the Committee intends to take action prior to the August recess.

We hope that you'll consider speaking out on this, especially if your senator is a member of the Judiciary Committee.

If S 448 passes the Judiciary Committee, we will have reached in just eight months what it has previously taken an entire two-year Congress to accomplish: passage of shield law legislation by both the House of Representatives and the Senate Judiciary Committee, albeit in different forms. We strongly believe that we can resolve these differences and get a single bill passed by each chamber with more than one year remaining in the 111th Congress. Productive discussions are ongoing between the groups supporting the Free Flow of Information Act, key Senators and Representatives, and the Administration. In addition to moving more quickly through the 111th Congress than the 110th, the Free Flow of Information Act is generally supported by the current Administration, rather than being subjected to harsh opposition from the Bush Administration.

You can find background information ranging from text and summaries of the Free Flow of Information Act, to talking points in support of the legislation to editorials run by your fellow ASNE members on the Free Flow of Information Act home page on the ASNE website.

ASNE is fighting in all branches of government to promote the release of photos and video depicting the torture of detainees by US forces in Iran and Afghanistan. There is a long and difficult history regarding these photos, best described in a quick summary:

• The ACLU sought release through the Freedom of Information Act of a series of photos and videos taken of U.S.troops torturing detainees in Iraq and Afghanistan between 2002-2004.
• The Department of Defense refused to release the photos and videos, alleging that a privacy exemption within FOIA properly applies because release of the photos would generally cause harm to United States troops and citizens overseas.
• The ACLU went to court. Years of litigation at several levels of the federal court system have culminated in a recent ruling from the United States Court of Appeals for the Second Circuit ordering the government to release the photos and videos because these generalized and inarticulable claims of privacy are not sufficient to justify withholding under this privacy exemption.
• The Obama Administration originally said it would release the photos and videos pursuant to the Court of Appeals holding rather than appeal that ruling (which is consistent with its own Open Government Directive that requires information be released - even if an exemption properly applies - if no foreseeable harm would result from the release)
• The Administration then reversed course and refused to release the photos and videos; it was later revealed that Iraqi authorities believed releasing the photos and videos would result in significant outrage in that country, leading to a need for U.S. forces to stay in Iraq longer than desired to maintain peace.
• The Senate, led by Joe Lieberman and Lindsay Graham, passed an amendment to the war supplemental appropriations bill that would prevent the release of any such photos or videos taken between 9/12/01 and 1/22/09 (which would clearly include the photos at issue in the ACLU case).
• The House of Representatives blocked the inclusion of this provision in the final version of the bill that was produced in a Conference Committee, with The New York Times reporting that "Rahm Emanuel, the White House chief of staff, went to the Capitol to assure Senate Democrats that President Obama would use all administrative and legal means to prevent the photos' release."
• The legislation was introduced as a free-standing bill, known as the "Detainee Photographic Records Protection Act", S 1285, which passed the Senate on June 17, 2009, the same day it was introduced. A companion bill has been introduced in the House as HR 2875 .
• Meanwhile, the United States Court of Appeals has stayed its order mandating release of the photos and videos to the ACLU pending a possible appeal by the Administration to the United States Supreme Court.

So, to recap the status of these photos and videos in each branch of government:

Legislative: A broad FOIA exemption was introduced as part of the war supplemental appropriations legislation.It passed the Senate but was removed from the final bill by a Conference Committee, though it has now returned as a free-standing bill (S 1285, the "Detainee Photographic Records Protection Act") which has already passed the Senate and is pending in the House as HR 2875.

Executive: The Obama administration is holding fast to a promise not to voluntarily release these photos and videos.

Judicial: The United States Court of Appeals for the Second Circuit recently stayed the effectiveness of its mandate to the government to release these photos and videos. An appeal of the Second Circuit's order to the Supreme Court is likely. The Supreme Court twice has extended the deadline for the government's filing of a petition for certiorari.

ASNE will remain vigilant on all fronts, should this damaging FOIA amendment move forward in the House or the Obama Administration show any willingness to depart from its hardline stance not to release these records. We will almost certainly file or join an amicus brief filed with the United States Supreme Court asking the Court to refuse to hear the case (and, thus, leave intact the Second Circuit's order to release the photos and videos) or, if the Court takes the case, to require their release.

ASNE President Marty Kaiser spoke out on the Obama administration's continuing refusal to release any information regarding visitors to the White House, despite dual rulings from federal courts that the Freedom of Information Act mandates the release of these records, with only limited redaction of information consistent with specific FOIA exemptions.

You can read Marty's letter and get more background on this issue from our accompanying press release.

An article in the Columbus Dispatch kicked it off. The Salt Lake Tribune, the Reno Gazette-Journal , the Lexington Herald-Leader , the Evansville Courier and Press have written as well. Have you?

We're talking of course about the recent focus on the inconsistent - often on the side of overzealously secretive - application of the federal Family Educational Rights and Privacy Act,  FERPA, a law which provides that educational institutions that receive federal funding must:

• Allow a student (or in the case of a high school student under the age of 18) to inspect his or her educational records upon demand.
• Allow a student to correct those records which they believe are misleading or inaccurate, and request a formal hearing if such correction does not occur.
• Withhold from disclosure any information in a student's educational record unless the student or his or her guardian consents to the disclosure. A school receiving federal funding may only disclose, without consent "'directory'" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance."
• New regulations issued by the Department of Education in December appear to have broadened the definition of "educational record" to the point where that term protects more than simply grades or education-related matters. The Dispatch article in particular demonstrated how the various colleges and universities in Ohio apply the definition in widely disparate ways, offering different when identical records were requested from each university. University officials have themselves expressed confusion in interpreting the law, saying they lack clear guidance from the United States Department of Education.   Records were withheld which would have shed light on whether athletic boosters are flying on team airplanes with the football, basketball or other sports teams, reports of NCAA violations, and records of campus crime.

The law's original sponsor, former Connecticut Senator James Buckley, expressed his consternation with the expansion of a law he originally introduced to shield a student's grades and transcripts from public view, leading to calls on and off Capitol Hill for a legislative fix to restore clarity and the law's original intent. Senator Sherrod Brown, D-Ohio, sent a letter to the Department of Education requesting that the Department clarify its recently-issued regulations. ASNE and others have met with staff from Senator Brown's office with our support and are reaching out to the Department of Education as well.

We are also monitoring potential legal actions which could be brought in Florida, after Florida State University and the NCAA has recently backed off its initial refusal to release records relating to that FSU's ongoing fraud case (the records should be available under the Florida Public Records Law because FSU is a public university) and in Illinois, where the Chicago Tribune has sued the University of Illinois seeking records under the state FOI law that would include the grades and SAT scores of applicants (with personally identifying information redacted) that would not otherwise meet admissions criteria but appear to have been admitted anyway through personal connections or influence. 

This is where you can help: we're collecting further examples of requests for non-grade, nontranscript records for use in our discussions on Capitol Hill, with the Department of Justice, or inclusion in amicus briefs which might be filed in any court case. Any FERPA examples can be sent directly to ASNE Legal Counsel Kevin M.Goldberg at goldberg@fhhlaw.com.

You can e-mail Kevin or call him at 703-812-0462.