The Peoples’ Records

After 8 years of secrecy and resistance to public records requests, President Obama has issued orders to open up government records. He has directed all agencies to “adopt a presumption in favor” of Freedom of Information Act requests. In wording that is very satisfying to those of us who have fought for disclosure in the last few years, he stated: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” The knowledge that each request could involve a long and costly battle certainly had some chilling effect on public records requestors.

I a decision last week from the Ohio Supreme Court in favor of the Toledo Blade, Justice Paul Pfeifer held that deleted emails are a public record. He rejected the Seneca County Commissioners contention that the County could be overwhelmed by public records requests for deleted material. “If anything,” Justice Pfeifer wrote, “our holding ensures that public officials will be more cognizant of their duties … and less likely to delete work-related public office e-mails. … Otherwise, without proper preservation of public records, ‘the right of access to government records is a hollow one.’” Pfiefer further held that individual county commissioners could not be trusted to determine which emails to save or delete. That would create “unreviewable authority to delete work-related e-mails [which is] is unreasonable because it would authorize the unfettered destruction of public records.” The opinion further held that open records laws exist “to reinforce the understanding that open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor.”

A false claims act case against Sallie Mae is dismissed due to an attorney leaking a contract that formed a basis for the complaint.

From the judgment:

27. On June 24 USA Funds, Sallie Mae and Enterprise learned that on June 20 a scanned copy of the USA Funds-Sallie Mae Third Amended and Restated Guarantee Services Agreement had been posted on a website known as Wikileaks.org (“Wikileaks”). Wikileaks touts itself as “an uncensorable version of Wikipedia for untraceable mass document leaking and analysis” (http://wikileaks.org/wiki/Wikileaks:About). Along with the document itself, the leaker provided a purported summary of the document and posed 13 inflammatory questions about the possible “criminality” of the arrangement.

28. Just two days later (on June 26) the Chronicle of Higher Education (“Chronicle”) published an online article captioned “Contract Raises New Concern over Sallie Mae’s Ties to Guarantor” about the leaked contract. That article raised questions about the Guarantee Services Agreement and stated (emphasis added):

A copy of the 51-page contract between Sallie Mae and USA Funds, along with some more recent letters updating its terms, was posted Friday to the Internet by Wikileaks, a Web site that specializes in publishing documents provided by anonymous whistle-blowers. The Chronicle had obtained the same document several days earlier and had no involvement in providing the materials to Wikileaks.

On July 2 and July 3 the Chronicle published two additional articles regarding the leaked contract.

29. Importantly, the Agreement both leaked to Wikileaks and provided to the Chronicle bears the Bates labels USAF00000001- USAF00000060. That conclusively establishes that document’s source as the selfsame document that USA Funds had provided to Sanchez in keeping with its discovery obligations. And on at least three occasions USA Funds had identified the document as being confidential and advised Sanchez that it intended to seek confidential treatment for the document as soon as a modified protective order had been entered.

30. Under the terms of the agreement that had been reached at the November 13, 2006 initial discovery planning conference, Sanchez was obligated to treat that document as being for “attorneys’ eyes only” until such time as a modified protective order could be entered. Such a restriction is of course based on the assumption (unfortunately mistaken in this instance) that counsel may be relied on to maintain the integrity of required confidentiality, while even the client (to say nothing of third persons) does not owe the same level of professional or other obligations to the court.

31. On June 25 counsel for USA Funds communicated with Sanchez as to the publication of the document on Wikileaks. In an e-mailed response Sanchez did not deny releasing the document, but rather attempted to justify his behavior.

32. On June 26 a copy of the Wikileaks article, as well as the disclosed documents, also appeared as a link on the message board of Yahoo Finance (). Yahoo Finance is a website that reports and analyzes financial information, including information regarding investing, various financial markets and company finances (http://finance.yahoo.com/).

33. On July 1 USA Funds filed a motion in this action to dismiss and for a protective order (Dkt. 246). On the same day Sallie Mae, Inc., USA Group Guarantee Services, Inc., USA Servicing Corp. and Sallie Mae Servicing, L.P. filed their motion to adopt USA Funds’ motion (Dkt. 251), a motion that this Court granted on July 21 (Dkt. 266). Enterprise also joined USA Funds’ motion.

34. Sanchez has admitted that he released the document to a reporter with the Chronicle, to an unnamed attorney and to Salmeron herself (Dkt. 257). Sanchez offered several purported but totally unconvincing excuses for that truly indefensible behavior, including (1) his forgetfulness as to USA Funds’ repeated requests for a modification to the protective order, (2) his not keeping the document with the cover letter that specified that it was to be treated as confidential and (3) his unwise judgment (Dkt. 257).

35. On July 3 this Court heard argument on the motions to dismiss. Sanchez’ argument plainly evidenced his failure to appreciate the seriousness of his actions, and this Court just as plainly confirmed its dissatisfaction with his attempted responses and advised him that it did not wish to hear any more excuses. Sanchez requested time to research what sanction short of dismissal might be appropriate, and this Court ordered him to do so by July 11.

36. Sanchez did file his Submission on Sanctions on July 11 (Dkt. 257). There he acknowledged that the parties had agreed to modify the original protective order to include all parties and that he had wholly failed to comment on the proposed protective order that had long since been submitted to him by USA Funds for that purpose. Despite those admissions, Sanchez once again asserted at great length his workload and family obligations as the primary reasons for the failure to honor his acknowledged agreement not to disclose a confidential document.

37. Although it is not yet known just how Wikileaks obtained a copy of the specific confidential document that had been delivered only to Sanchez, he has expressly admitted delivering a photocopy to the Chronicle. That conduct, like most (if not all) of Sanchez’ repeated violations of his responsibilities to this Court and opposing counsel, must be characterized as willful. And with Sanchez having disclaimed the Wikileaks transmittal even while acknowledging the delivery to the Chronicle, this Court has no assurance that the Wikileaks delivery may not be traceable back to Salmeron herself (an unauthorized distributee in her own right).

38. Moreover, the unauthorized disclosures have publicized to USA Funds’ and Sallie Mae’s competitors their trade secrets, including but not limited to pricing, performance incentives, new and enhanced product information, service level standards and the scope of the services provided under the document. In addition, USA Funds and Sallie Mae have suffered significant negative publicity by virtue of the articles resulting from the unauthorized disclosures.

39. As to Enterprise, the unauthorized disclosures of the document have coincided with its response to the Education Department collection request for proposal. Although the full effect of that is unknown at this time, the appearance of the article in the Chronicle may well cause further loss of business for Enterprise.

40. Nor is the damage referred to in the preceding Findings (though both real and serious) either curable or quantifiable, because the document was posted to a website that is devoted to the publication of confidential information. USA Funds’ and Sallie Mae’s demands that the document be removed have been ignored. Indeed, even if Wikileaks were to remove the document,
the harm is done, for the information is in cyberspace and cannot be pulled back.

As long as your case was not decided before the new statute took effect you can get attorney fees according to a federal district court judge in Montana. Judge Donald Malloy rejected the government’s claim that applying the reforms retroactively would result in “manifest injustice” and that there was a common law “presumption against retroactivity” in FOIA attorney fees cases. The court awarded plaintiff $68,512.50 in attorney fees and $4,189.49 in costs following the release of requested documents.

Malloy cited Bradley v. Richmond School Board, a 1974 U.S. Supreme Court case that said “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory or legislative history to the contrary.”

DIFFERENT PLAINTIFF, SAME RECORDS
I think the Plaintiff should not be barred from his appeal for the same records. He has an independent right to request records produced to another, he should be allowed to fight for the records. His knowledge of the prior lawsuit will help him to formulate a different structure for his legal argument.

LAW OF JUDGMENTS, RES JUDICATA, PRIVITY, CLAIM PRECLUSION,
VIRTUAL REPRESENTATION, FREEDOM OF INFORMATION ACT, FEDERAL
AVIATION ADMINISTRATION

Taylor v. Sturgell (07-371)
Oral argument: April 16, 2008
Appealed from: U.S. Court of Appeals for the District of
Columbia Circuit (June 22, 2007)

Brent Taylor, executive director of the Antique Aircraft
Association (”AAA”) filed a Freedom of Information Act (”FOIA”)
request with the Federal Aviation Administration (”FAA”) to
obtain plans and specifications for a vintage aircraft. After the
FAA denied Taylor’s request on trade-secret grounds, he sued to
compel disclosure of the information. The D.C. Circuit affirmed
the district court’s finding that Taylor’s claim was barred
because he had been “virtually represented” in a prior action by
Greg Herrick, a fellow AAA member whose prior FOIA request for
the same records the Tenth Circuit found to have been properly
denied due to trade-secret protections. Taylor asserts that
preclusion of his claim on the “virtual representation” theory
violated his due process rights because he had no legal
relationship with Herrick and received no notice of the prior
suit. The FAA counters that preclusion was appropriate because
Herrick had adequately represented Taylor’s interests in the
earlier action. The decision in this case will clarify the
circumstances under which courts may bar claims under the
“virtual representation” theory and may influence plaintiffs’
litigation strategies, broaden defendants’ exposure to
duplicative suits, and limit the availability of FOIA requests of
certain members of the public.

Continues: http://www.law.cornell.edu/supct/cert/07-371.html

The Michigan Supreme Court turned down the mayor of Detroit’s efforts to keep documents secret that concern city officials’ efforts to cover up an extramarital affair with the mayor’s chief of staff. The full story, as reported in the New York Times, can be found here: http://www.nytimes.com/2008/02/28/us/28detroit.html?ref=us

I stumbled on this issue regarding sensitive corporate information on websites today. People are attempting to upload leaked information about many subjects to wikileaks. A bank got the site taken down. A lawyer is trying to defend it. I love it.
Check out this report in Wired:

Arizona plaintiffs succeeded in getting the electronic election records. Listen to this fascinating interview:

http://www.toginet.net/upload/PODCAST_MASTER/election%20defense%20alliance/ElectionDefenseAllianceLIVE_2008-01-08-19-57.mp3

I saw this today on the web, it looks like Bush is shaping the data to fit predetermined outcomes in other areas:

Scientists Ignored on Pitfalls of Arctic Oil Leasing
WASHINGTON, DC, February 5, 2008 (ENS) - The Interior Department is hastening to stop the flow of internal e-mails from its own scientists that undermine the legality of its offshore oil and gas lease sales in federal Arctic waters, according to correspondence released Monday by Public Employees for Environmental Responsibility, PEER. During the past three weeks, PEER has released a series of internal e-mails from current and former Interior scientists raising questions about how badly environmental assessments of Arctic offshore oil development were skewed. The e-mails are contrary to Bush administration claims that environmental risks were adequately considered prior to offering tracts for lease in the Chukchi, Beaufort and Bering Seas for oil exploration.
“Congress should hear directly from the agency scientists whose work was altered or axed altogether,” said Jeff Ruch, executive director of PEER, a national alliance of local, state and federal resource professionals. Ruch said most congressional attention has been focused on the delays in the decision whether to list the polar bear under the Endangered Species Act until after the lease sale in the Chukchi Sea is held on February 6, while the suppression of evidence has not been as closely considered. “The Bush administration oil rush in the Arctic is lubricated by systematic scientific fraud,” accused Ruch. The e-mails released by PEER have fueled two new lawsuits in the past week that threaten to block new lease sales and lend further support to ongoing litigation against earlier lease sales. Lawsuits brought by Native communities and conservation groups contend that Interior failed to honestly reflect oil spill dangers and negative effects on endangered marine life, such as bowhead whales, as well as on polar bear populations struggling to cope with shrinking sea ice due to global warming.

From Drunkard’s Lampost: Diebold and New Hampshire

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