Federal court rules that there’s no freedom from embarrassment on the Internet

29 03 2013

Frequently, I get requests from people who want information deleted from the Utah’s Right to Know website.

Sometimes, it’s someone who has had their criminal record formally expunged and wants it taken down before we do our next update. And, once I see proof that the expungement actually took place, I am more than happy to remove the data.

But there are others who want their convictions and divorces removed for no other reason than they don’t want that fact showing up when someone does a Google search on their names.

One gentleman even went as far as claiming that Utah’s Right to Know cost him a job opportunity because the prospective employer found his burglary conviction online.

My response to him, as to all others who make these requests, is that unless the record is formally expunged, it will remain on our site.

It’s that notion of avoiding embarrassment that drove Rep. Paul Ray’s HB408, which requires people seeking jailhouse mug shots to swear that they will not publish the pictures in publications that charge to remove them. As of Friday, Ray’s bill was still waiting for Gov. Gary Herbert’s signature.

While the European Union is exploring the possibility of establishing a “right to be forgotten”, a federal appeals court has ruled that American Internet search engines have no duty to remove information someone may deem unflattering.

In Neiman v. VersusLaw Inc., the 7th Circuit Court of Appeals recently ruled against a man who insisted that Google, Yahoo! and Microsoft had to stop linking to a lawsuit he  filed against a previous employer. The man argued that the links were scaring off future employers who might consider him too litigious to hire.

“The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed,” the court ruled.

The case validates the advice given by many journalists to their children: Don’t do anything you wouldn’t want to see on the front page of the newspaper. Or in a Google search for that matter.

H/T to Frank LoMonte at the Student Press Law Center for pointing out this decision.

West Valley City’s police board not so transparent

28 03 2013

One would expect an agency created to ensure police officers are accountable would be the model of transparency.

But, as The Salt Lake Tribune’s Nate Carlisle and the Tribune’s editorial board reported, West Valley City’s Professional Standards Review Board is a bit more opaque.

The paper noted that West Valley City’s board does not publish meeting notices or its findings, nor are the names readily available.

Contrast that with the Salt Lake City Civilian Review Board, which announces its meetings and publishes a quarterly report showing how many complaints have been reviewed, the nature of the complaints and how many times it ruled against police. The board also issued reports detailing how Salt Lake City police raided the wrong home while serving a search warrant, and highlighting problems within the city’s vice squad.

The came to light as the city has held back information on the shooting of Danielle Willard, 21, in November. One of the officers in that case recently had 19 drug cases he was involved in dismissed by the district attorney for a lack of credible evidence.

Willard’s mother and attorney have accused the city of engaging in a cover-up, based in part on the lack of information.

West Valley City Manager Wayne Pyle told a news conference that the city, in hindsight, should have been more forthcoming with information.


Utah Gov. Gary Herbert signs bills promoting government transparency

26 03 2013

Gov. Gary Herbert signed two of Sen. Deidre Henderson’s bills that aim to make more public information accessible.

SB77 requires public bodies to post draft meeting minutes on the state’s Public Meeting Notice website within 30 days of a meeting, and an audio recording of a meeting within three days of the meeting. Sen. Kevin Van Tassell, R-Vernal, tried to amend the bill to exempt smaller communities, whom he claimed would view the posting requirement as a hardship, but that change was rejected.

SB283 moves the Utah Transparency Advisory Board from the Department of Finance to the Department of Administrative Services, and directs it to look at ways to make more public records accessible through the Internet. The board already has made financial information, such as salaries, available through the state’s Transparency website.

The Utah Media Coalition, which includes  The Salt Lake Tribune, gave the bill a “pale light” rating due to the requirement that its recommendations be approved by the Legislature. That provision, the coalition noted, could have a chilling effect on the recommendations.

Oklahoma State’s handling of sex offender earns it a ‘Black Hole’ from SPJ

22 03 2013

Oklahoma State University’s decision to not tell police or students about a serial sex offender on campus earned it the national Society of Professional Journalists’ (SPJ) Black Hole award for 2013.

SPJ, the nation’s largest and broadest-based journalism association, gives out the award to government entities that flagrantly violate the public’s right to know. The award was announced Friday morning.

(Disclosure: As a member of SPJ’s national Freedom of Information Committee, I served as one of the judges for the Black Hole award.)

In the case of Oklahoma State, the university had received complaints that a student sexually assaulted several fraternity members. However, instead of calling police or notifying students about a possible sexual predator in their midst, the university quietly handled the issue in a closed-door administrative proceeding.

University officials maintained that they could not disclose information about the assaults because it would violate the Family Educational Rights and Privacy Act (FERPA), the law that was intended to keep academic records such as transcripts and report cards from being disclosed publicly.

The U.S. Department of Education has clearly stated that FERPA cannot be used as an excuse to not notify police about a crime on campus, or to warn students about potential danger.

But emails obtained by the Associated Press revealed that administrators were more concerned about how the scandal would affect the school’s reputation than they were about student privacy.

Oklahoma State was nominated by Frank LoMonte, executive director of the Student Press Law Center.

“It’s really significant that SPJ has recognized a serial abuser of FERPA,” LoMonte said. “This spotlights a problem with FERPA.”

LoMonte noted that Oklahoma State has classified student parking tickets as FERPA-protected documents, allowing it to deny access to journalists looking into parking issues on campus. The university was also censured for classifying a sexual assault as a burglary on a campus crime report required under the Clery Act.

Oklahoma State joins The Wisconsin, Georgia and Utah legislatures, and the Kentucky Cabinet for Health and Family Services as a national Black Hole recipient. Utah received the first-ever national Black Hole award for its passage of HB477, a bill that would have gutted the Government Records Access and Management Act.

Public outcry, along with the national publicity from the award, led the Legislature to repeal HB477.

Utah SPJ looking for nominees for state Sunshine, ‘Black Hole’ awards

21 03 2013

Know someone who had done exemplary work promoting the cause of open government? Or how about a government agency or official who’s gone well out of their way at keeping the public in the dark?

The Utah Headliners Chapter of the Society of Professional Journalists want to know, and give them their just rewards.

The chapter is seeking nominees for its annual Sunshine and Black Hole awards. The Sunshine Award recognizes those who have helped advance government transparency, either through legislation or grassroot efforts, such as fighting a law that would block access to public records, or to an activist whose fight helped promote greater openness in government.

For example, the 2011 Sunshine Award went to the coalition that led the opposition to HB477 and proposed an initiative to repeal the bill that would have eviscerated the Government Records Access and Management Act (GRAMA). It was that public outcry, along with aggressive coverage by the Utah news media, that forced the Utah State Legislature to repeal the bill.

The Utah Supreme Court also won a Sunshine Award for approving of a reporter’s shield rule, which allows journalists to protect sources of information from disclosure in court.

The Black Hole award is for someone who knows they are violating the spirit or letter of open-government laws, is doing it for personal or political motives, and their actions affect the public as a whole.

The best example was the members of the 2011 Legislature who railroaded HB477 through, despite public protests that the law would undermine government transparency in Utah. Other recipients include Provo officials for keeping documents pertaining to the sale of the iProvo network secret; Rep. Kraig Powell, R-Heber, for proposing legislation to make public employees’ salaries private information; and Logan Mayor Randy Watts, for a policy mandating that all communication between journalists and the city be done by email.

To nominate someone for one of the awards, contact Linda Petersen at the Valley Journals at linda@valleyjournals.com. Be sure to include documentation as to why you think the person deserves a Sunshine or Black Hole award.

Freedom of Information Act helps inmate find evidence of possible fraud in criminal trial

19 03 2013

For Alfonso Moya-Breton, the federal Freedom of Information Act (FOIA) may be his ticket to getting out of prison sooner.

As The Salt Lake Tribune’s Brooke Adams reported, the U.S. 10th Circuit Court of Appeals ruled that U.S. District Judge Tena Campbell was wrong when she refused to consider Moya-Breton’s contention that his attorney didn’t tell him about a plea deal that could have shaved six years off his sentences for drug offenses.

Moya-Breton was able to find the evidence using FOIA as part of his effort to appeal his 30-year prison sentence.

Moya-Breton said his attorney, Ed Brass, had told him that there was no offer of a plea agreement, but the letter from Assistant U.S. Attorney Adam Elggren to Brass stated that Moya-Breton’s sentence would be reduced if he would “accept responsibility.”

Campbell had ruled the letter was irrelevant because the issue had already been addressed in previous appeals, but the appellate court reversed her ruling.

“Unfortunately, the district court did not distinguish the motion’s fraud allegation … from its other assertions,” the appeals court said. “That is a problem.”

Utah disciplined 123 licensed professionals between November and February

13 03 2013

Since October 2008, the Utah Division of Occupational and Professional Licensing has disciplined 1,976 contractors, pharmacists, nurses, physicians and other licensed professionals.

The number represents an 123-person increase since November. The disciplinary actions are announced monthly by the division.

Contractors, including licensed plumbers and electricians, were largest group receiving sanctions from the state, with 858 — 43.4 percent — receiving some form of discipline from the state. The discipline ranged from losing a license to probation and warnings.

The violations they were cited for included not having a qualified person to perform work, financial problems, unprofessional conduct and working without a license.

The next largest group to be sanctioned were nurses, which includes registered, licensed practical and advanced practice nurses. They represented 13.8 percent of those listed on the database.

The list also includes 139 pharmacies or pharmacists, 88 physicians, 80 cosmetologists or barbers, 77 massage therapists and hundreds of other professionals including certified public accountants, burglar alarm sales agents, social workers and security guards.

The database is posted on Utahsright.com, and can be searched by name, company, profession or city.