Publisher's Notebook

You might have missed this item last week. But the Justice Department has proposed new regulations to interpret the Freedom of Information Act that are logic-bending.

In cases involving national security or law enforcement, some agencies now are allowed to respond to a FOIA request by stating they “can neither confirm nor deny the existence of records.”

Under the new Justice regulations (provided here by Pro Publica, an public-interest journalism outfit), the government agency would “respond to the request as if the excluded records did not exist.”

In other words, this regs would direct the government employee to lie. Falsehood would be the official policy.

Open-government and journalist groups, needless to say, objected loudly. But the comment period allowed by Justice closed Oct. 19. Stay turned.

Richmond lawyer Craig T. Merritt (right) received the George Mason Award from the Society of Professional Journalists, Virginia Pro chapter last night.

The annual award recognizes an individual for his or her contributions to Virginia journalism.

Merritt, a partner at Christian & Barton, has been involved in a number of First Amendment and government access cases over the years.

He has often provided his counsel pro bono to groups that don’t have the resources to mount a fight.

Accepting the award at the SPJ reception at the 2300 Club in Richmond’s Church Hill, Merritt cited Mason’s willingness to fight the fights worth fighting for. For example, Mason originally opposed Virginia’s ratification of the Constitution, because it lacked a Bill of Rights.

Those rights, trumpeted by Mason himself in earlier writings, made their way into the Constitution in the first 10 amendments.

The Fairfax County Police Department has earned a dubious honor: the department was a runner-up for the “Black Hole Award,” a distinction started this year by the Society of Professional Journalists for the “most heinous violations of the public’s right to know.”

The state of Utah was the winner of the Black Hole Award for its passage of a bill that the SPJ award committee called “the most regressive piece of freedom of information legislation in recent history.”

House Bill 477, signed into law earlier this month by Gov. Gary Herbert, makes major changes to the Utah Government Records Access and Management Act.

Starting July 1, anyone seeking information will pay heavy fees for search time, redaction, administrative overhead and legal review that will price citizens out of their government, the committee said.

Additionally, there is a requirement that someone seeking information must prove beyond a preponderance of the evidence that a public record should be public; every other state requires the government to prove it should be secret.

And there will be exemptions keeping a wide swath of electronic records secret, including text messages and other correspondence of officials, allowing government leaders to communicate in secret, according to the committee.

The Fairfax police department was one of five runners-up for the award.

The department was cited for its refusal to provide information on its handling of the shooting of a motorist by a police officer. In November 2009, an officer shot and killed an unarmed motorist on Richmond Highway. In response to a Freedom of Information Act request seeking information about the incident, Fairfax officials declined to release video footage of the shooting from police cruisers or copies of reports written in the wake of the shooting. Even the name of the officer remains shrouded in secrecy, said the committee.

After a 14-month internal investigation, the commonwealth’s attorney announced in January that he would not file criminal charges against the officer. In a press release, authorities suggested the driver, a carpenter and former Army Green Beret with bipolar disease, had ignored police lights and sirens before the officer fatally shot him. But the police department denied a request for public inspection of the actual reports, the committee concluded.

The other runners up were the Kentucky Cabinet for Health and Family Services, for refusing to disclose information about the death of a toddler; the University of Maryland, for charging high copy fees to a student journalist investigating sexual assaults on campus; the CIA and Attorney General Eric Holder, for destruction of interrogation videos protected by the Federal Records Act; and the Broward County (Florida) School Board for keeping inadequate records.

Today is National FOI Day. March 16 is James Madison’s birthday, and that’s the reason this date was chosen, in a nod to the Father of the Constitution, as the day to observe the importance of freedom of information. The First Amendment Center has more information at its website, including the scoop on yesterday’s FOI Day Conference held at the Newseum in D.C.

Closer to home, Megan Rhyne, the executive director of the Virginia Coalition for Open Government, has an op-ed piece in today’s Richmond Times-Dispatch, in which she reports a welcome development: She said in her job she hears from a lot of people. But recently, she said, she’s been hearing from government workers and officials who want their offices open and information fully accessible to the public.

This week (March 13-19) is Sunshine Week, an initiative to promote open government and freedom of information. March 16, this Wednesday, is National FOI Day – and that day was chosen because it is James Madison’s birthday.

The week is spearheaded by the National Society of News Editors and underwritten by a grant from the John S. and James L. Knight Foundation.

Sunshine Week got started in 2002 in the Sunshine State, when the Florida news editors society banded together to fight efforts to create scores of exemptions to that state’s public records laws. Several other states followed suit in 2003; the ASNE went national with a sunshine celebration two years later.

Here in the Old Dominion, the Virginia Press Association and the Virginia Coalition for Open Government fight the good fight, and they were busy as usual during the 2011 General Assembly session.

According to the VPA website, there were at least 33 different bills relating to public access to government that were introduced during the session.

The VPA noted one of the bills it supported, House Bill 1457, will double the civil penalties for a willful violation of the Freedom of Information Act by government employees. The bill made it through both houses and awaits the governor’s signature.

And a number of bills that would have exempted various state agencies’ work from the purview of FOIA were killed in committee.

As part of Sunshine Week, the ASNE honors “Local Heroes” who fight for access and little-guy rights. The overall national winner was a woman in Miramar Beach, Fla., who filed a lawsuit against local officials and forced them to handle public records differently.

But Virginia can lay claim to the third-place finishers. A Waynesboro couple, Phil and Ellen Winter, took the bronze for their effort to straighten out practices in the city treasurer’s office. According to Sunshine Week officials, they noticed their property tax check had not been deposited promptly.

They then gathered reams of government documents that showed the treasurer had allegedly mishandled city and state money. They went to the local newspaper and shared their research. The treasurer lost his bid for reelection last fall.

Sunshine Week is a newspaper industry effort to insure that information remains free. The Society for Professional Journalists, for example, is a big promoter of the week and of FOIA education in general.

But this isn’t just inside baseball and an example of how journalists pat each other on the back so they can feel good. Far from it. The week highlights how the fourth estate can keep government honest and the citizens informed.

It was Thomas Jefferson who once famously said, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Go to these two sites for a lot of information and resources: www.sunshineweek.org, maintained by the ASNE, and www.spj.org, the home site of the Society of Professional Journalists.

Let the sun shine.

Forty-eight states have joined an amicus brief in the appeal of a $5 million verdict in favor of a man who sued protesters who showed up at his son’s funeral.

Virginia is one of the two states (Maine is the other) that declined to back Albert Snyder’s appeal to the U.S. Supreme Court. Snyder won his lawsuit against Fred Phelps and his Kansas-based fundamentalist church, Westboro Baptist.

Phelps and his supporters showed up the funeral of Marine Lance Cpl. Matthew Snyder, carrying signs with messages such as “Thank God for dead soldiers.” The group has picketed military funerals across America because they believe deaths during wartime are punishment for the country’s tolerance of homosexuality.

The Associated Press has the full story.

Snyder won in federal court in Baltimore; the verdict was reversed in the 4th U.S. Circuit Court of Appeals, which cited free speech concerns. Attorney General Ken Cuccinelli likewise said that the commonwealth wouldn’t back the appeal, noting through a spokesman that “the case could set a precedent that could severely curtail certain valid exercises of free speech.”

The case may provide a significant ruling on the 1st Amendment and what limits can be place on our fundamental right of free speech.

What do you think? Is Cuccinelli right? Or do the officials in the 48 other states, who believe there is a compelling state interest in keeping protesters away from funerals?

Today, April 13, is Thomas Jefferson’s birthday. Tom would be 267 if he were here to blow out the candles on his cake.

As an alternative way to celebrate his day, every year the Thomas Jefferson Center for the Protection of Free Expression hands out its “Muzzle” awards. You wouldn’t actually want to win one of these – they are given to entities that try to squelch free speech and expression. In other words, the center is trying to tell a cautionary tale.

This year all of the 10 “honorees” are all government or school officials.

For example, the Alabama ABC Board banned the sale of Cycles Gladiator, a California wine, because the bottle displayed “a person posed in an immoral or sensuous manner.” Say what? The label contained a replica of a 1895 French poster of a nude nymph with a flying bicycle.

Out in Las Vegas, the cops tried to get rid of street performers along the strip. Didn’t want them to stay in Vegas, apparently.

In Oklahoma, government officials denied a license plate that stated “IM GAY,” on the grounds that was “offensive to the general public.”

And closer to home, the Virginia Department of Corrections won a Muzzle for denying an inmate a CD containing a Christian sermon. The department has since revised a policy to allow inmates to order religious CDs, effective June 1.

You get the idea. The Associated Press has the full story here.

In the meantime, here’s a toast to Mr. Jefferson. Feel free to use a bottle of wine with a nymph on the label.