Redistricting Board Meets Thursday, June 22, At 12:30pm To Discuss Plaintiff Legal Reimbursement

I got an email from the Alaska Redistricting Board (I subscribed to the email list long ago) announcing a zoom meeting Thursday to discuss potential settlements regarding attorney's fees and costs.  From the Board:

"Date: Thursday June 22, 2023
Time: 12:30pm
Place: https://us06web.zoom.us/j/82969365602?pwd=T2ozcno4dWFFQnc3eFN0WmlDYVFSZz09

Agenda

1. Call to Order and Establish Quorum

2. Adoption of Agenda

3. Adoption of Minutes

4. Executive Session to meet with the Board’s counsel.

   Pursuant to AS 44.62.310(1) and (4), the Board will discuss legal strategy and potential settlement regarding attorney’s fees and costs.

5. Adjournment"

The draft Minutes of the last meeting are also linked.

I've emailed the following suggestions to the Board:

"A couple of suggestions, since there's no public testimony:

1.  Before going into ES, please have the Board announce which plaintiffs still have outstanding legal fee requests, which ones will be discussed, and which have already been finalized or decided by the courts.  Also clarify that there are claims for both the Superior Court and the Supreme Court.

2.  Change adjournment to Item 6 and change item 5 to:  "Return to Public Session:  Vote on any decisions regarding issues discussed in ES."  (My understanding is the Board has to do all the voting in public.) 

"An executive session is not a stand-alone, or secret meeting; it is a part of a public meeting in which the public may be temporarily excluded for certain purposes. Actions are not taken during executive sessions. A decision by a governing body, such as a city council, to conduct any step in the deliberation process outside of the public forum must weigh the public interest in the right-to-know against any potential harm that could result from open deliberation. The governing body may, at its discretion, invite others into its executive session."   https://www.commerce.alaska.gov/web/dcra/LocalGovernmentResourceDesk/LocalGovernmentElectedOfficials/MeetingsHeldinExecutiveSession.aspx

"Is secret ballot voting allowed under the act?

Almost always, no. In addition to requiring that deliberations of a governing body be open to the public, the act also requires that the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote, including meetings conducted by teleconference. The one exception is organizational meetings of a governing body to elect members to various offices, which are exempted from the requirement that the vote of each member be made public (AS 44.62. 310(a))."

https://dev.gov.alaska.gov/wp-content/uploads/Open-Meetings-Act.pdf

I understand they will be talking about settlements with at least Girdwood plaintiff attorneys.  That implies they will potentially be discussing a range of dollar amounts the Board is willing pay in settlements.  Revealing that range does somewhat compromise the Board attorney's ability to negotiate.  But I have three thoughts:

1. Plaintiffs who successfully argued before the Superior and Supreme Courts resulting in significant changes should be awarded attorney fees and costs because they've done a service to the Alaska.  The Alaska constitution anticipates the public has such a role to play by giving any Alaskan the right to challenge a Redistrict Board's Proclamation Plan.  
2. Based on the Board's budget as of November 2022, the Board should have enough money left over.  
3. At the very least, in public session, the Board should announce the nature of their decision (ie Should the attorney negotiate with the plaintiffs be authorized to settle within the range the Board discussed in ES?) and then vote.

The National Archive Has Released 1491 Documents Related To JFK Investigation

 There are 150 pages of titles and each title (at least on the pages I looked at) were linkable. These were made available yesterday.  What I saw were reports of investigations on people that someone thought was suspicious.   For example there's a document on a Gilberto Portocarpo Lopez, who had the misfortune to return to Cuba to visit his ailing mother immediately after Kennedy's assassination.   The document seems to clear him of any connection to the assassination.  

page 7 of the document

Also interesting to some, might be 

• the editing notes on the document.  
•  the notes about how the CIA didn't share information because they didn't want to reveal how they got the information.  
• the names and bits of information on the people investigated, questioned, and the investigators might be of interest to people who are related to them

I also looked at testimony by William E. Colby, Director of the CIA before US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity.  I would guess that most of this is already known or suspected.  This time I was smarter and included page numbers.  

 I suspect there isn't anything too interesting hidden in these many documents.  But I'm not a JFK Assassination buff. 

Here's some questioning about other assassinations.  

I get the sense that Colby is good at evasive answers and the Senators are good at knowing when they shouldn't press for better answers.  Of course I could be wrong, but that's what it feels like to me.  

The next two pages are about a meeting with Robert Kennedy where the CIA was practicing the live editing I felt in the previous page.  

If all this is top secret and being made public for the first time, then was was it marked "Photocopy from Gerald Ford Library"?  But I'm not going to nibble that bait.  

This trove of documents is a rabbit hole I really don't want to pursue any further.  There's a whole JFK assassination industry ready to do that.  But it was a good excuse to put off redistricting board lawsuits.  And to give readers an alternative time waster to Twitter.  And this blog.  

Why Secrecy At The US Supreme Court?

In a CNN article The secret Supreme Court: Late nights, courtesy votes and the unwritten 6-vote rule  Joan Biskupic,  tells us that the justices have a weekly meeting in secret.

"At their weekly private sessions, the nine decide which pending petitions to take up and, separately, cast votes on cases that already have been argued."

Justice Stephen Breyer is quoted:

"Regarding the general need for confidentiality, Breyer said, 'Transparency is usually a word that means something good, but I would say about the conference, it's important not to have transparency. ... It is very important for people to say what they really think about these cases, and that's what happens. So I worry about changing that and somehow bringing the public into the conference.'" (emphasis added)

 This really needed to be followed up.  Here are some questions I would have wanted to ask in that interview. (I recognize that these things might not come immediately to mind in the interview, but Biscupic is  described by CNN as 

"Joan Biskupic, a full-time CNN legal analyst, has covered the Supreme Court for twenty-five years and is the author of several books on the judiciary."

These are Supreme Court justices with lifetime appointments.  They can't be fired for what they say unless it rises to the level of impeachable by the US Senate. 

Justice Breyer, can you give some hypothetical examples of the kinds of things justices say that you think they wouldn't say if these meetings were public?

It's not that their language or behavior is objectionable because you say:

"What happens," Breyer told CNN, "is it's highly professional. People go around the table. They discuss the question in the case ... the chief justice and Justice (Clarence) Thomas and me and so forth around. ... People say what they think. And they say it politely, and they say it professionally."

Are there people outside the court who they feel accountable to and they would feel compelled to hide their real thoughts so these people wouldn't hear them?

If, for example, someone appointed to the court based on the strong support of the Federalist Society.  Do they say things that organization might object too?  If they said those things at these meetings, isn't it likely that other justices also appointed through the efforts of the Federalist Society would let that be known to the Federalist Society?

Is it because they are polite and reasonable to justices that their 'side' dislikes and that would be embarrassing?  

Are there things you might self-censor if this were to be public?  Why?

Is there an issue that what they say might reveal a bias for or against potential litigants at the court? 

Do they tell jokes that might be offensive to some groups in the US population? 

Are there concerns that US Senators who voted for a judge would regret that vote?  So what?  I mean simply, what would be the consequence to the judge?

Are you Ms. Biscupic perhaps too close to the court that you are reluctant to push Breyer beyond some line of appropriateness?  Would a different reporter who didn't have a relationship with the judges feel more comfortable asking such questions?  Or would such a journalist simply not have the access you have?  And would pushing further to ask these sorts of questions jeopardize your access to the justices?  I know nothing about Ms. Biscupic.  I could be totally wrong here.  I do know there have been concerns that the White House press falls into a relationship with the President and his press secretaries that can be jeopardized by asking unacceptable questions.  That's probably true about journalists who cover the court as well.  

Again, these justices have lifetime appointments.  What do they have to hide at this point?  And from whom?  I'd surely like to hear Justice Breyer or other justices answer these questions.  

I'd also note that I have, in the past, studied the concept of privacy in government, quite closely.  Nearly all public officials fear public scrutiny and in this day and age of social media, any ill-advised words could easily be copied out of context and tweeted to the world.  But Congress has adapted to C-Span.  And justices who feel the same concerns about becoming viral sensations would have a better understanding of the concerns that everyone else has.  

I would argue that all groups that are used to being able to talk, unaccountably, in private, resist when that protection is challenged.  

I recall working hard to get the Anchorage Municipal Assembly covered live by the local cable company when they arrived in Anchorage in the mid 1980s.  Assembly members on all political sides voiced concerns that such exposure would change how members debated.  But after a couple of months it quickly became obvious that a) citizens were tuning in and b) that assembly members forgot the cameras were running and didn't really change their behavior.  Recent turmoil at the Assembly was available for all to see first hand and not simply depend on how the media reported it.

So I would hope that journalists who have access to Supreme Court justices do dig deeper and push the judges to voice exactly how and why they would not be candid if the meetings were public.  

AK Redistricting Board Talks About Transparency Then Goes Behind Closed Doors

[The title is accurate, but I do want to say that at this point I have no reason to believe they were not acting in good faith and don't mean to imply that. But I think it's worth paying attention now and seeing how they react going forward.]

In my last post, I included my rough notes from their Friday, Feb. 26 meeting. When they talked about agenda items numbers:

"4. Staff Public Outreach Directive

5. Response Protocol for Meeting Requests"

several members expressed a clear need to have guidelines that would be as clear as possible to the Board and public so that they:

•  wouldn't appear to be playing favorites - giving information to some groups but not others
• would all be responding to folks the same way
• could be as transparent and fair as possible

I have some thoughts on how to do this - based on good public administration standards and on the experiences of blogging the previous redistricting board - but I need to think them through a bit more.  

In this post I want to focus on what happened when they got to agenda item number

"7. Interview with Legal Services RFI Respondents, Executive Session"

My notes [and I acknowledge I could have missed something] say:

"John [Binkley]:  Next, interview with one of the law firms that replied.  Thanks to Brittany for working on this.  Doing it in Executive Session.  Ready now to interview one of the respondents.   

Moved to move to executive session:  Peter if you can coordinate with leg affairs and let us know." 

What's wrong with that you ask?

By state law, a public body has to do two things before going into executive session.

1. They have to vote to do it.  [They may have voted and I just didn't catch it]
2. But before voting they have to declare why they're going into executive session. 

Here are the reasons a body can go into Executive Session:

(c)    The following subjects may be considered in an executive session:
(1)     matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;
(2)     subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3)     matters which by law, municipal charter, or ordinance are required to be confidential;
(4)     matters involving consideration of government records that by law are not subject to public disclosure. 

Number (2) seems the most likely reason for them to go into Executive Session while interviewing an applicant to be the legal counsel for the Board.  But think again.  The law firm representative being interviewed is not likely to say anything about themselves that would prejudice their own character or reputation.  




Rather, they will be telling the Board about how good they are.   




Now, it's possible that the Board has done some background investigation that raised some questions about the applicant,  and they want to ask questions about that.  At that point, they could go into Executive Session.  




The Board didn't even tell us who the finalists were.  There was an Alaska Supreme Court opinion about whether finalists for policy making position should be made public.  In that case (City of Kenai v. Kenai Peninsula Newspapers) a case concerning the City Manager of Kenai was consolidated with a case of the Municipality of Anchorage selecting a Police Chief.  In both cases the selection process was not carried out openly and in both cases the local newspapers sued the governments.  Part of the courts ruling said:

"The appellee does not contend that the City Council may never go into executive session when discussing city manager applicants. It argues that generally such discussions do not have a tendency to damage the reputation of the applicants, and that the City erred in routinely convening executive sessions.

Appellee's reading of the statute is not without a degree of merit. Ordinarily an applicant's reputation will not be damaged by a public discussion of his or her qualifications relating to experience, education and background or by a comparison of them with those of other candidates. However, a discussion of personal characteristics and habits may well carry a risk that the applicant's reputation will be compromised. Such a risk is especially acute where the qualities of several applicants are being compared. We believe therefore that the City Council was authorized by § .310(c)(2) to meet in executive session while discussing the personal characteristics of the applicants.[29] To the extent that the order of the court prohibits this, it must be reversed.[30]" [emphasis added]

These issues came up last time when the Board had to hire a new Executive Director.   Here's what I posted March 14, 2013:

"I learned just now that Rich Mauer of the Anchorage Daily News pressed the Board on the Public Meetings Act and got them to open the interviews with the Executive Director candidates today.  Two have dropped out.  That leaves three and they were planning to interview each for about 50 minutes to an hour."
One could argue that this is not a high policy making position, but that would be contrary to facts.  The Board will make decisions that will decide the election districts for the next ten years.  How they do that will affect which parties control the State Senate and House.  While the Board will ultimately make the decisions, their actions will be strongly influenced by the advice they get from the Board's attorney.  
And in 2013, the Board's attorney advised them to let the interviews for the Board's Executive Director be public.  The ED carries out the instructions of the Board and I would argue has a lesser impact on the Board than the attorney does.  
Therefore, I would argue that the Board should make these interviews public.  I also recognize that they've already done one interview behind closed doors and it could be argued that it would be unfair to the second applicant to be the only one that was made public.  But they are recording these meetings, so the first interview could be posted on the Board's website.  
I would note that the Board did not even announce the names of the firms they were interviewing.  
I have no reason to believe that the Board was acting in bad faith.  I suspect that they just didn't consider these issues carefully enough.  As yet, they do not have an attorney to advise them when they are about to do something like this.  
I emailed the Board Chair and Executive Director about these issues and got a cordial response from the Board Chair saying he would take this up with Legislative Legal before Tuesday's interview.  

I'd emphasize the importance of publicizing the candidates and opening up of the interviews.  In the Anchorage Police Chief case, the Chief selection was done in secret.  The Municipality wouldn't even release the names of the finalists.  The Municipality then announced the new Police Chief.  At that point the Anchorage Daily News did some sleuthing about the new chief and found out he'd been fired from his previous post for sexual harassment.  (And 40 years ago, that wasn't something that happened often.)  When the story came out, the Mayor, who was traveling to a national conference, had to turn around and come back to Anchorage to deal with the fallout.  
So publicizing the candidates and letting the public sit in on the interviews means that a lot more people have the opportunity to either raise issues about the candidate the Board might not have discovered and/or  might challenge claims the applicant makes in the interview which the Board might otherwise take at face value.  
Last time, when the Board publicly interviewed the Executive Director applicants, the public was able to see clearly which candidate was best.  One had held some political positions, but was unprepared and couldn't really answer most of the questions.  One was a person with administrative experience, but nothing directly related to redistricting.  The third was incredibly well qualified for the position -one of the first women grads of West Point, she'd held high level positions in the army and in Alaska.  Plus she had a PhD in geography and had taught classes in GIS - a key component of the mapping software used by the Board.  And her doctoral dissertation had been on the impact of the military on Alaska Natives, so she had contacts around the state.  And her answers and manner of answering were complete,  respectful, and knowledgeable.  
Without open interviews the public would not have known the qualities of the three finalists.  In the end, the Board decided they didn't need an Executive Director and hired no one.  But the fact that they had passed on such an excellent candidate - who turned out to be a registered Democrat - was telling.  With closed interviews they could have picked one of the lesser candidates.  

There was also a technical problem in how the Board went into Executive Session in an on-line meeting.  The last word people listening in by phone heard was the part I cited above.  Then the line was quiet for 15-30 seconds and a voice then said something like "This session is now over."  My guess is that the only business the board had after coming out of executive session was to adjourn.  But that part of the meeting should have been, technically, public.  We don't know if there was any discussion other than adjourning.  
I also realize that the Board didn't know exactly how long the interview would take.  I'm guessing that keeping everyone on the line but without hearing what was happening would be expensive.  But I think the Board could have estimated how much time they'd need and could have told listeners they could call back after, say an hour.  At that point, the operator could connect them or give a new estimate if the Board needed more time.  If the Board was finished early, they could take a break until time for the public hearing to resume.  

At this point, I have seen or heard nothing to make me believe that what happened was nothing more than oversight.  But I also know from my experience with the previous board, that both political parties have as their goal from the Board to get as many candidates of their party into the legislature for the next ten years.  
Given that goal - which was stated clearly by some politicians last time - it's critical to do as much of this work as openly and by-the-book as possible.  This will become easier if they select a top-notch attorney to advise them.
My intent is not to condemn the Board, but to help them do their jobs as professionally, legally, and fairly as possible.  

Social Media And Trump's Attempts To Shut Down All Unflattering Information

Here are some links you might find worth following up on.

Substack is a group trying to counter the growing power of Facebook and Google by starting their own subscription based site that journalists can join:

Substack -

"This is one of the key reasons we started Substack. We’re attempting to build an alternative media economy that gives journalists autonomy. If you don’t rely on ads for your revenue, you don’t have to be a pawn in the attention economy – which means you don’t have to compete with Facebook and Google. If you’re not playing the ads game, you can stop chasing clicks and instead focus on quality. If you control the relationship with your audience, you don’t have to rely on outside parties to favor you with traffic. And if you own a mailing list, no-one can cut you off from your readers."

Meanwhile we find out (officially anyway) that Facebook has been lying to us:

Bombshell report reveals Facebook knew for years about its dangerous potential — but rejected the warnings

"Despite internal research that Facebook’s platform was exploiting and exacerbating divisiveness among its users, top executives ignored the findings that the algorithms were doing the exact opposite of the company’s stated public mission to bring people together.
That’s according to new reporting Tuesday from the Wall Street Journal which in a comprehensive dive into the company’s treatment of its platform’s capabilities to divide users found that executives knew in 2018 what the site was doing to users but declined to take action.
“The most persistent myth about Facebook is that it naively bumbles its way into trouble,” tweeted New York Times tech columnist Kevin Roose. 'It has always known what it is, and what it’s doing to society.'”

Trump Admin Doesn't Want To Tell Us Who They Gave The CARES Money

If you put money down on March 27 on a bet that the Trump administration would do its best to block oversight of the $2-trillion coronavirus rescue program, congratulations: You’ve won the bet.
Since President Trump signed the CARES Act 81 days ago, he has fired government inspectors general who had been assigned the task of monitoring the disbursements of this cash to businesses big and small.
The day after he signed the act, Trump signaled his intention to restrict the information his appointees can submit to Congress about rescue program spending.
Trump’s Treasury secretary, Steve T. Mnuchin, flatly declared this month that he wouldn’t disclose the names of small businesses receiving loans through the act’s $600-billion Paycheck Protection Program.
 

Meanwhile Trump's trying to keep us from reading John Bolton's book.

“I will consider every conversation with me as president highly classified. So that would mean if he wrote a book and if the book gets out, he’s broken the law and I would think he would have criminal problems,” Trump added, later claiming he hadn’t viewed the book’s contents. 

Even if he had any legal chance to stop the book's distribution to the public, there's no practical possibility.  CNBC says the book is #1 best seller based on pre-sale orders, and Trump's niece's tell-all book is #5. And the Washington Post writes (in an article republished in the ADN) that the book is

"due to go on sale June 23 and has already been shipped across the country."

If the book has been sent to bookstores, there is absolutely no way that someone isn't going to leak a copy, even if Trump's law suit succeeds.  Bootleg copies will get out.

But all this raises the complicity of the Republicans in the US Senate who refused to call Bolton as a witness in the impeachment trial.  And refused to take any step to oppose Trump's stonewalling Congress and the people of the USA.

So, in your weekly email to your members of Congress (all my US based readers do this of course, right?) you  request they make public where the CARES Act money has gone, prohibiting government agencies from requiring Non-Disclosure Agreements (Bolton's cleared the book with NCS to be sure there's no classified information), and generally putting pressure on Trump to rehire the various Inspectors General and other watchdogs he's fired, and to comply with subpoenas for various officials.

Snowden - The Movie

I've avoided posts about Edward Snowden.  Yes, I've mentioned him now and then, but I've held off from writing about him in much detail.  My dissertation was on privacy.  I've studied whistle-blowing.  Daniel Ellsberg is one of my heroes.  I knew I was primed to be supportive of Snowden and wanted to hold off.  (And whether I say something about him or not isn't going to matter in the bigger scheme of things anyway.)

I wanted to know more.  Well, I really wanted to drop by and talk to him for a couple of days and see if he was the guy I wanted him to be or not.

I've watched some of his tapes and I've pretty much settled, for the time being, on the Snowden the whistleblower side.  He's the good guy who believed in the ideals of his country and was willing to risk his freedom, even his life, to keep his country honest.  That's the narrative that fits most comfortably with what I've seen and heard about Snowden.


So we went to the 12:50 pm showing of Oliver Stone's Snowden today.  I did read a New York Times review when I was checking last night about when the movie played here.  After seeing the movie I'd concur with the reviewer.

This may be the movie that Oliver Stone has been practicing for.  It's restrained and straightforward.  It goes back and forth between the 'right now' and flashbacks.  The 'right now' starts with his arrival in Hong Kong.  The film is totally consistent with my sense of who Snowden is and why he did what he did.

The surprises for me were:

• how conservative he was politically and personally
• how he voiced concerns to others he worked with and for while he was an employee or contractor with the various security agencies
• that he suffered from epileptic seizures

So, until others can present a more convincing narrative - along with supportive evidence - I'm more than willing to call on Obama and others to find a way to let Snowden come back to the US honorably.  Don't make this like the Cuba sanctions that go on forever or our marijuana phobia because we can't admit we're wrong.

There are more thoughts, but I need to do other things and this movie is worth seeing.  It's well made and is entertaining.  At the very least, it should further open the discussion how we keep spy agencies accountable.  And how we treat those who call them on it.

Joseph Gordon-Levitt is great in the starring role. And I liked how the real Snowden's image replaces the actor's at the very end.

Articles of Interest - ISIS Recruits, Genes, Bias, Map Artist

There's way too much information for anyone to keep up with.  Here are some ideas worth considering.


Danes choose love over punishment to fight terrorists with some apparent success.

". . . France shut down mosques it suspected of harboring radicals. The U.K. declared citizens who had gone to help ISIS enemies of the state. . . But the Danish police officers took a different approach: They made it clear to citizens of Denmark who had traveled to Syria that they were welcome to come home, and when they did, they would receive help with going back to school, finding an apartment, meeting with a psychiatrist or a mentor, or whatever they needed to fully integrate back into society."

When a Person Is Neither XX nor XY: A Q&A with Geneticist Eric Vilain

People argue that the use of computers, human bias can be eliminated, but this piece shows that human bias can still be reflected in the programs they write.

"That has important applications. Any bias contained in word embeddings like those from Word2vec is automatically passed on in any application that exploits it. One example is the work using embeddings to improve Web search results. If the phrase “computer programmer” is more closely associated with men than women, then a search for the term “computer programmer CVs” might rank men more highly than women. “Word embeddings not only reflect stereotypes but can also amplify them,” say Bolukbasi and co."

Secrets are not a secret anymore if more than one person knows...

“A real secret is something which only one person knows.” ― Idries Shah, Reflections

There are no secrets that time does not reveal. Jean Racine If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees. Khalil Gibran

An argument against having backdoor keys to break into phones.



Rubric Memo  -  A spoof on academic memos and the use of rubrics.

"We refer to this rubric as Project 3.5.1, which you will recognize as a series of numbers. By entering data about your courses into this rubric, you help us to improve education for all our students, to whom we have also assigned numbers. We have also assigned you a number based on an Enigma-encrypted combination of the street address of your childhood home and your ATM PIN code, which we hacked (please see attachment 7)."

Map Maker Artist Perfectionist 

"These days, almost all the data cartographers use is provided by the government and is freely available in the public domain. Anybody can download databases of highways, airports, and cities, and then slap a crude map together with the aid of a plotter. What separates a great map from a terrible one is choosing which data to use and how best to present it."

Other Desert Cities

We squeezed in a stop at Cyrano's Thursday night to see Other Desert Cities.   We didn't really know what we were going to see except that it had won acclaim Outside. 

It turned out to be a perfect play for the theme of this blog - it's all about knowing, our memories, their limits, and how our own emotions color our mind's records of our own experiences.  It's about keeping secrets and the damage that does. 

The cast of five was fantastic - to me, they were all the characters and not actors playing the characters.  And all the characters were rich blends of strengths and weaknesses.  And you should stay right to the end. 

If you're paying attention, you'll have noticed that the titles of the post and the book in the picture are different.  The book is what the character Brooke presents her family (in manuscript form) over the Christmas holidays in Palm Springs.  Not the novel they thought she was writing, but a memoir that includes them all.  She wants their blessings.  

The play is Other Desert Cities. I'm not really sure I'm excited about the title or understand why it was chosen to label this play.  Yes, I caught the mention in the play, but I still don't think it's a great title for this story. 

It's at Cyrano's for those of you in or near Anchorage, this weekend and the next two and definitely worth going to see. 

"Much of the budget work happens behind the scenes, said Rep. Charisse Millett, R-Anchorage, House Majority Leader"

This quote in Nathaniel Herz's ADN article today struck me.   She was defending the legislature from the charge that they were focused on frivolous things instead of working on the budget. 

We have an open meetings act in Alaska.  The point is that government decisions should be made in public.  There are some exceptions - like to avoid revealing an ongoing investigation, to protect the state's interests in various negotiations, etc. - but they are limited.

It's dismaying to know that the House Majority Leader really doesn't care about letting the public know how the budget is being developed.  I was further dismayed to find out, that the legislature has legally been above the rules.

Attorney Gordon J. Tans has a lengthy treatise on the Alaska Open Meetings Law (updated in 2002):  

As applied to the Alaska Legislature, the OMA, like the legislature's Uniform Rule 22, is viewed by the court merely as a rule of procedure concerning how the legislature has determined to do business. While by its literal terms the OMA is applicable to the legislature, a violation of the OMA by the legislature will not be considered by the courts, absent infringement of the rights of a third person or violation of constitutional restraints or a person's fundamental rights.  25

In 1994 the legislature enacted a law requiring itself to adopt guidelines applying open meetings act principles to the legislature.26
This was to have been done during the 1995 legislative session, but it has still not happened as of this writing .

 This is what happens when people give up on democracy and stop voting and stop keeping their elected officials accountable.  Most of the important work of the state budget is done behind closed doors.

I don't know whether this loophole has been corrected, but I suspect not.  So now we need some citizens who can make a persuasive case that their fundamental rights are being infringed by the legislature making key decisions out of public sight.  

Perhaps our reporter should have asked Millett a followup question about government transparency and why the legislature is not following the open meetings law. 

Public Records Act Says "Shall Give On Request" NOT "Shall Give When They Get Around To It"

I get press releases every day and I don't usually do anything with them, but this one appears to demonstrate a case of the Alaska Department of Health and Social Services refusing to obey the law on public records. 

According to part of the press release from the Alaska Democratic Party:

"The report, prepared with nearly $80,000 in State funds by the Lewin Group for the Department of Health and Social Services, has been complete since April 12, 2013.  Several individuals and organizations have requested release of the report, including at least one news organization, but the Department has refused to release it.  This refusal violates the Alaska Public Records Act, according to attorneys with the non-partisan Legislative Legal Services Division." 

The Alaska Public Records Act is pretty clear.  Here are the guts:

AS 40.25.110. Public Records Open to Inspection and Copying; Fees.

(a) Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record.

Note:  It says:  "shall give on request."   It doesn't say, "shall give when they get around to it"

So, what are the exceptions?  Read through them.  I think you'll agree that none of these apply here.  Then read the bolded section at the end.  It repeats the message above, but instead of staying 'request' it says 'demand.'

AS 40.25.120. Public Records; Exceptions; Certified Copies.

(a) Every person has a right to inspect a public record in the state, including public records in recorders' offices, except

(1) records of vital statistics and adoption proceedings, which shall be treated in the manner required by AS 18.50;

(2) records pertaining to juveniles unless disclosure is authorized by law;

(3) medical and related public health records;

(4) records required to be kept confidential by a federal law or regulation or by state law;

(5) to the extent the records are required to be kept confidential under 20 U.S.C. 1232g and the regulations adopted under 20 U.S.C. 1232g in order to secure or retain federal assistance;

(6) records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information

(A) could reasonably be expected to interfere with enforcement proceedings;

(B) would deprive a person of a right to a fair trial or an impartial adjudication;

(C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness;

(D) could reasonably be expected to disclose the identity of a confidential source;

(E) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions;

(F) would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or

(G) could reasonably be expected to endanger the life or physical safety of an individual;

(7) names, addresses, and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817;

(8) public records containing information that would disclose or might lead to the disclosure of a component in the process used to execute or adopt an electronic signature if the disclosure would or might cause the electronic signature to cease being under the sole control of the person using it;

(9) [See delayed repeal note]. reports submitted under AS 05.25.030 concerning certain collisions, accidents, or other casualties involving boats;

(10) records or information pertaining to a plan, program, or procedures for establishing, maintaining, or restoring security in the state, or to a detailed description or evaluation of systems, facilities, or infrastructure in the state, but only to the extent that the production of the records or information

(A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program, or procedures;

(B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or

(C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare;

(11) the written notification regarding a proposed regulation provided under AS 24.20.105 to the Department of Law and the affected state agency and communications between the Legislative Affairs Agency, the Department of Law, and the affected state agency under AS 24.20.105.

(12) records that are

(A) proprietary, privileged, or a trade secret in accordance with AS 43.90.150 or 43.90.220(e);

(B) applications that are received under AS 43.90 until notice is published under AS 43.90.160 .

(b) Every public officer having the custody of records not included in the exceptions shall permit the inspection, and give on demand and on payment of the fees under AS 40.25.110 - 40.25.115 a certified copy of the record, and the copy shall in all cases be evidence of the original.

(c) Recorders shall permit memoranda, transcripts, and copies of the public records in their offices to be made by photography or otherwise for the purpose of examining titles to real estate described in the public records, making abstracts of title or guaranteeing or insuring the titles of the real estate, or building and maintaining title and abstract plants; and shall furnish proper and reasonable facilities to persons having lawful occasion for access to the public records for those purposes, subject to reasonable rules and regulations, in conformity to the direction of the court, as are necessary for the protection of the records and to prevent interference with the regular discharge of the duties of the recorders and their employees.

Why withhold documents?

Aside from the legally valid reasons, officials withhold information that makes them look bad.  Some examples:

• It refutes what they have told people.
• It doesn't support the position they espouse.
• It confirms what their critics have charged.
• It reveals incompetence or otherwise is embarrassing

Public records acts, in general, often have provisions that allow an agency to withhold documents while a policy is being formulated.  Section 11 above seems to be for that purpose and the link goes to the kind of information that would be exempted.  It's more about communication between the Department of Law or the Legislative Affairs Agency.

However, this is an independent report that is complete and will not change.  It's been paid for with State money.  The people have a right to see what it says.  If the Governor were really open to the best options for the people of Alaska he would share the report so it could be studied and its strengths understood and its weaknesses found. That's why the Public Records Act was written.  

I can't think of legitimate reasons for withholding such a document this long.  Yes, the agency is still working on its policy but that policy won't change this report.  

My guess is that the report doesn't support what the Governor wants to do.   [This accidentally got left out of the original post:  In 2009 The Washington Post quoted Lewin Group Vice President John Sheils

"Let's just say, sometimes studies come out that don't show exactly what the client wants to see. And in those instances, they have [the] option to bury the study -- to not release it, rather," Sheils said.

Except when they are a government that has public disclosure laws.] 

Who is the Lewin Group?

The Lewin Group, the company that did the report, is based in Falls Church, Virginia.

They tout their integrity and independence,  and they acknowledge they are owned by UnitedHealth Group:

"The value we place on accuracy, independence and objectivity is reflected in the trust our clients place in The Lewin Group. As such, The Lewin Group must safeguard its integrity, and address any appearance of conflicts that may stem from the organization’s relationship to other health care businesses owned by our parent company, OptumInsight, and its parent entity, UnitedHealth Group."

Sourcewatch writes:

Despite its corporate ownership, opponents of health care reform often cite the Lewin group as an impartial, non-partisan or independent source of information. House Rep. Eric Cantor (Virginia), has referred to it as "the nonpartisan Lewin Group." Republicans on the House Ways and Means Committee have called it an "independent research firm." Senator Orrin Hatch of Utah, the second-ranking Republican on the Senate Finance Committee, referred to the Lewin Group was "well known as one of the most nonpartisan groups in the country." They do not mention, however, that the Lewin Group is owned by UnitedHealth Group.
The Lewin Group has a reputation as the "go to" firm for beleaguered organizations in need of reports and research to support controversial positions and issues. In one example, in 2005 the American Hospital Association hired the Lewin Group to study the causes of skyrocketing health care costs. The study results blamed increased hospital spending on the rising costs of goods, a workforce shortage and greater demand for hospital services, but did not mention health insurance company profits, stock values, shareholder returns, etc. (Aug. 29, 2005, p. 8).^[3]

So, the Parnell administration went to a firm that is endorsed by Eric Cantor, a powerful House opponent of Obamacare.  He should expect a report that's favorable to his position and have no problem releasing it.  But they've held it since April.

We can guess that the report would have been released already if it concluded that the Affordable Care Act would be a disaster for Alaska - as the Governor has claimed:  

"The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday."

But what if a company endorsed by Cantor said the Affordable Care Act would be ok for Alaska?  The Parnell administration wouldn't be able to blame the company's "liberal bias.' The Lewin Group's website has a summary of a study they did on expanding Medicaid in the State of New Hampshire:

The report they did for the State of New Hampshire concluded that while there would be a modest reduction in state spending over six years if the state did not expand Medicaid, if it did it would be a huge improvement in health care access for people in New Hampshire and it would bring billions in federal revenues to the state. 

"This report provides estimates on Medicaid enrollment and costs under the option of not expanding Medicaid compared to the option of expanding the program under various program design options. We find that if the state does not expand Medicaid, it could reduce state Medicaid spending by $66 to $114 million over the 2014-2020 period. However, expanding Medicaid would (1) reduce the number of uninsured in the state by an additional 22,300 people, (2) provide subsidized coverage for low income adults in the state, who would not have access without the expansion, and (3) increase federal revenues in the state by $1.8 to $2.7 billion over the 2014-2020 period."      

 If that's not clear, it says

• if you don't expand, you'd save around $100 million BUT
• lose 20 times that much in Federal revenues and
•  cut out 22,000 uninsured people. 

Senator Bill Wielechowki's most recent request to see this report was linked in the press release.  It's dated September 25, 2013, but it also refers to previous requests for the report - one in March and one in August.  It also goes into much more legal detail than I have.  You can read it here.

Here's the Department of Health and Social Services response to his August request.

From:  Hooley, Jason M (GOV) [jason.hooley@alaska.gov]

Sent:  Tuesday, August 20, 2013 3:34 PM

To:  Michelle Sydeman  [Wielekowski's staff]

Subject:  Re: Request for contract re: actuarial analysis of Medicaid expansion

Hi Michelle,

Thank you for your request for a copy of the contract with the firm completing the actuarial analysis of Medicaid expansion costs and effects.  A copy of the contract is attached.

Like many other states, Alaska looks to move cautiously and deliberately towards a decision on this issue. The Department of Health and Social Services (DHSS) has reviewed actuarial analyses of cost estimates and effects that sketch out what Medicaid could look like in expansion scenarios.

  

The report is not meant to advocate for or against a particular position, rather it will be used as one point of data as we develop our recommendation. DHSS’s actuarial study completed by the Lewin Group on April 12, 2013 entitled “An Analysis of the Impact of Medicaid Expansion in Alaska,”  is not yet available for distribution.

It will be made available once DHSS has completed its analysis and submitted its recommendations to the Governor.

Jason Hooley

|

Legislative Liaison

Office of the Commissioner

| Department of Health and Socia

l Services

3601 C Street (#902) | Anchorage, AK 99503

(o) 907.269.7806 |

(c) 907.341.7806

What about the language that says "Shall give on request?"  It's been available since April 12.  The key reasons I can imagine that it has not been released is to prevent Sen. Wielechowski from having enough time to review the data.  Or because the report is not favorable to the governor's position.  

If you go to Wielechowski's request, you'll see it spells out the specific legal reasons why the document should be released and shows why it doesn't qualify for any of the exceptions. 

It would appear that the State is illegally withholding information that the people of Alaska bought and paid for. 

The Dark Side of the Internet: Anonymity After All?

 KCRW had an interesting discussion of Internet security.  In light of NSA's spying, they discussed the small minority of web surfers who use anonymous surfing software like Tor which is triple encrypted.  One of the panel members suggested NSA only reads email of ordinary folks because the people with something to hide, use Tor.  Tor was created by the US government to help out journalists and dissidents in countries that persecute dissenters.  But it seems it is also what makes black market websites possible too.

Here's their description:

Are 'Dark Networks' a Threat or a Haven Online? (1:08PM)

Revelations about the government’s electronic surveillance have raised alarms about privacy. Today's Wall Street Journal reports that the National Security Agency’s capacity is even broader than has reported before—enabling it to reach " roughly 75% of all US Internet traffic."Is there any way to use the Internet secretly? Yes, there is. It's the Darknet, available through software that allows anonymous browsing—and, increasingly—provides opportunities for organized crime. On Silk Road, for example, customers can find LSD, cocaine and heroin as if they were shopping on Amazon — anonymously. Why hasn't the government cracked down? Are there legitimate reasons for Internet users to conceal their identities?

Guests:

• Joseph Menn: Reuters, @josephmenn
• Andy Greenberg: Forbes magazine, @a_greenberg
• Karen Reilly: Tor Project, @torproject
• Nate Anderson: Ars Technica, @natexanderson

You can listen to it here:

The Dark Side of the Internet: Anonymity After All? - To the Point on KCRW

If Biogenesis Had a Contract With NSA - Headlines Would Be About Stolen Data, Not Baseball Players' Drug Use - Obama Responds

The information which led to the suspension of a dozen major league baseball players this week, was stolen from the company.  A disgruntled client/employee/investor took boxes of data and released the information to the press.

From the Anchorage Daily News:

"Porter Fischer, a former employee of the now-infamous Biogenesis clinic in Miami, told ESPN's "Outside the Lines" that there are at least a dozen more athletes across numerous professional sports leagues that have yet to be exposed.
Fischer turned the Biogenesis clinic investigation into a national scandal when he turned boxes of documents over to the Miami New Times last year."

But the reaction of the nation led by the media is in stark contrast to the reaction to the whistle blowers who released information to the world, at great personal risk, because they thought the public needed to be aware of what was being done by the government.  I'm not necessarily endorsing the actions of the whistle-blowers, but I'm sympathetic to their motivation.

Propublica has a timeline of people prosecuted under the Espionage Act.   Here are the key people on it:

• 1971: Daniel Ellsberg and Anthony Russo indicted
• 1985: Samuel Morison convicted
• January 2006: Lawrence Franklin convicted
• May 2010: Shamai Leibowitz convicted
• August 2010: Stephen Kim indicted
• December 2010: Jeffrey Sterling indicted
• Jun. 2011: Case against Thomas Drake dropped
• October 2012: John Kiriakou convicted
• June 14, 2013: Edward Snowden Charged  
• July 30, 2013: Bradley Manning Convicted 

John Kiriakou, one of the men on the list, recently wrote:

"President Obama has been unprecedented in his use of the Espionage Act to prosecute those whose whistleblowing he wants to curtail. The purpose of an Espionage Act prosecution, however, is not to punish a person for spying for the enemy, selling secrets for personal gain, or trying to undermine our way of life. It is to ruin the whistleblower personally, professionally and financially. It is meant to send a message to anybody else considering speaking truth to power: challenge us and we will destroy you.

Only ten people in American history have been charged with espionage for leaking classified information, seven of them under Barack Obama."

 
The leaks of classified documents by people working for government raises many questions, about the leakers and about the government and its reaction to the leakers. However, there is a great difference between whistle blowers and spies.

Spies sell information to foreign governments for profit, because they are being blackmailed, because of ideology, or a combination of more than one of these.  A report on the motivation of spies on this US Department of Agriculture site by By Dr. Mike Gelles Naval Criminal Investigative Service says that most spies have personal issues that the organization should be looking for.  But this report is about spies, not about whistle blowers. 

True whistle blowers believe that the government is doing something that is in serious violation of the law and poses a danger to the public if the information is not released.  They can be right or wrong about this.  And its possible that the information they release causes some danger as well as needed information.  This has some similarity to when a dangerous prisoner is released because the technical rules of justice were violated.  We balance two different important values.

Reporters prosecuted for espionage raise even greater issues.  John Kiriakou writes:

Two of my espionage charges were the result of a conversation I had with a New York Times reporter about torture. I gave him no classified information – only the business card of a former CIA colleague who had never been undercover. The other espionage charge was for giving the same unclassified business card to a reporter for ABC News. All three espionage charges were eventually dropped.

People in power have always tried to keep information from the public.  Some of it is legitimately withheld - the Freedom of Information Act outlines the kinds of information that is exempted from release.  But often, information that the people should know is hidden by those exemptions.

The film  Dirty Wars  which we saw Monday night is one more account of the serious abuse of secrecy in the federal government.  The film raises many questions, I don't have time to pursue now.

Knowledge of what our government is doing is critical to citizens of a democracy making good choices when they vote.   One can't help wonder how much the government is hiding simply because it is embarrassing.  The Municipality of Anchorage, for example, when it settles with someone who has sued the Municipality, includes language which requires the person to not disclose the details of the settlement.  When asked by the media (if they are paying attention at all) about the settlement, the Muni officials say the conditions of the settlement prevent them from saying anything.  Even though this is a condition they insist on and require.  Basically, this is to keep the public from knowing what the Muni did wrong and how much they paid to make it go away.

And yesterday I read that the encrypted email service David Snowden used has shut down:

"The statement posted online by Lavabit owner Ladar Levison hinted that the Dallas-based company had been forbidden from revealing what was going on."

The release of millions of classified documents by Bradley Manning and David Snowden raises huge questions about [the culpability of the government's handling of this sort of data such as:]

• how these folks had access to all this information
• how they  could download and store this information without detection, without the computer programs alerting officials to what was happening
• why private contractors are doing this work 
• how contracting out this work sets up an interest group with motivation to lobby Congress to increase the amount of secrecy and spying

[The government has pushed the danger of terrorism, it seems, in part to keep the focus off questions on their lax security procedures.]

The amount of media attention on these issues has been tiny.

Yet, when Porter Fisher walks off with Biogenesis files and makes them public, the attention is on the drug use of the subjects of the files, not on the breach of the confidentiality of their medical records or on the theft of the files.

How we handle whistleblowers, whether government employees, private contractors, or the journalists who publish the information the leak, is a problem which may be evolving into the biggest danger to democracy in the US today as the NSA, FBI, CIA, the White House and their many corporate contractors, ruthlessly work to silence anyone who dares to reveal their actions.  


Obama came on the radio as I'm finishing this, responding to some of these issues.  Does that means he's monitoring my computer and reading my posts before I even publish them?  I'm sure they don't even know this blog exists.  Here are the four points Obama made:

1. Reforms to Sec. 215 of the Patriot Act
2. Oversight  over the FISA Court - they only hear one side of the issue, they can have adversarial procedures with civil liberty groups expressing their concerns act  in the courts
3. We can be more transparent - instructed inteeligence agency to be as transparent as possible and a website of intelligency agencies to be more transparent and explain what it's doing
4. High level group of outside experts to review and recommend - interim report in 60 days and final report by the end of the year

Now he's answering questions.  You can listen live here.