Requests for Public Records Under FOIA: How Should Local Governments Respond?

by Emily Nagle One Beacon Government Risk

The Freedom of Information Act (or FOIA) was enacted in 1966. Originally, it was intended to provide a means for journalists to maintain oversight and accountability of the government. FOIA’s usage has evolved considerably since its inception over five decades ago. Today, private individuals comprise over 20% of requests made under FOIA; businesses make up another 39% of total requests.

FOIA is intended to provide access to government records—this includes any and all information regardless of the format it’s stored in. Official documents, recording of phone calls, emails, surveillance camera footage, and countless other varieties of data are covered by FOIA and are legally mandated to be accessible through request at any time.

Any amount of information can be requested by an interested party. A request made under the Freedom of Information Act will never be denied for “asking too much;” such a denial would be illegal. Requests can also be made regardless of the level of federal government holding the information. The process is informal and simple, which means that just about anybody can complete a request.

If FOIA applies only to Federal agencies, why should my public entity care?
Oftentimes, individuals and organizations utilize the FOIA acronym in reference to general public records laws as a whole. Each state throughout the country has its own version of FOIA; this individual iteration of the Freedom of Information Act applies to each level of government within a state.

In one instance, a Florida newspaper sued for access to a city manager’s text messages. A tip called into the publisher indicated that the city manager had been involved in text conversations with a lobbyist; within these conversations, the city manager asked the lobbyist for favors and preferential treatment, including free luxury skybox tickets to a college football game.

The city denied the texts’ existence and argued that they didn’t preserve public officials’ text messages despite the fact that doing so is required under Florida law. Once the newspaper sued and acquired the texts (revealing corruption and pursuit by the FBI), the city settled the case by creating new policies for preserving text messages and added it to their existing process of preserving emails and other written correspondence.

Tips for being prepared
There are several ways that public entities can prepare themselves for requests of public records made by businesses, reporters, and the public; doing so is crucial to maintaining integrity in a culture that’s aggressively seeking out problematic behavior.

One key way to afford your public entity some measure of protection is to assess your internal procedures and compare them to the State public records law. Adopt rules and regulations that are closely coordinated with your legal counsel, board, council, or commissioners. The best way to avoid claims is to keep away from engaging in problematic behavior to begin with. You can ensure this happens by having good policies in place for internal procedures.

A strategy of ignoring a request for information rarely succeeds and often increases the frustration of the applicant and therefore the likelihood of a suit being filed. So it’s not just a retention policy, it should include processes from receiving the request all the way through to sending the requested information. Also, specific attention should be focused on what cannot be released and what should be redacted to protect the rights of others whose images or personal information may be included in the requested document.

Beyond this, consider doing a little bit of website renovation. Add a section to your site that informs people about their rights; offer instructions on how to submit a request and information about what the process of requesting and receiving information looks like.

Include information about anything that you think a requester may want to know on the page. Consider integrating a small FAQ section to discuss response times, fees, appeals, and other facets of FOIA requests. One example of a website that integrated these features into their user experience can be found here.

FOIA laws vary by state. It’s important to keep abreast of these laws in order to better serve both the individuals who make up your public entity and curious external members of the public. For a list of laws and relevant information by state, visit the National Freedom of Information Coalition.

2017 NSVFA SAFER Grant

The Nebraska State Volunteer Firefighters Association is requesting a price to hire a SAFER Grant manager.  Details of the RFP are located below.  If you have questions concerning the RFP all questions should be directed to NSVFA Secretary – Treasurer William “Bill” Lundy via email only at wllundy@windstream.net  Any questions concerning the RFP will only be answered by Email to insure common response to all potential bidders.

 

 

2017 NSVFA Safer Grant RFP             NSVFA Procurement Procedures

Fire Extinguishers Recall

Portable fire extinguishers are often kept on hand to help keep a fire from blazing out of control which can reduce injuries, property loss and business interruption. However, a portable fire extinguisher that is not properly maintained only increases risks. Portable fire extinguishes within the business and fleets should be serviced yearly by a licensed professional. Along with serving, consider subscribing to the Consumer Product Safety Commission (CPSC) Recall Emails in the event of a recall such as the most recent recall on the Kidde Fire Extinguisher.

Originally posted on the CPSC

Name of Product:

Kidde fire extinguishers with plastic handles

Hazard:

The fire extinguishers can become clogged or require excessive force to discharge and can fail to activate during fire emergency. In addition, the nozzle can detach with enough force to pose an impact hazard

Remedy:

Replace

Recall Date:

November 2, 2017

Units:

About 27.8 million (in addition, 2.7 million in Canada and 6,730 in Mexico)

Consumer Contact:

Kidde toll-free at 855-271-0773 from 8:30 a.m. to 5 p.m. ET Monday through Friday, 9 a.m. to 3 p.m. ET Saturday and Sunday, or online at http://www.kidde.com and click on “Product Safety Recall” for more information.

NSVFA & Nebraska Fire Chiefs Association Legislative Alert

This Legislative Alert for the following bill is being forwarded on behalf of Lobbyist, Gerald Stilmock. Please forward to departments and members for whom you have contacts:

Information following relates to:

LB 737 – First Responder Education Act
Introducer – Senator Brett Lindstrom (Omaha)
Position – Support
Hearing Date – January 16, 2018

LB 760 – Volunteer Emergency Responders Incentive Act – Amendment
Introducer – Senator Dan Hughes (Venango)
Position – Support
Hearing Date – January 17, 2018

LB 737 – 30% Tuition Waiver

LB 737, introduced by Senator Brett Lindstrom (Omaha), allows first responders in Nebraska eligibility to receive a 30% tuition waiver at any state university, state college, or community college in Nebraska. Included in the definition of first responders are volunteer firefighters and emergency medical service providers, among others. To be eligible, the first responder must maintain satisfactory performance with his or her agency, be working toward an associate or baccalaureate degree in fire protection or emergency management, and meet all admission requirements. The tuition waiver would be available for up to five years.

The bill will be heard by the Education Committee on Tuesday, January 16th, in room 1525 at 1:30 p.m. The Associations support this legislation.

LB 760 – Amend The Volunteer Emergency Responders Incentive Act

LB 760, introduced by Senator Dan Hughes (Venango), would authorize county volunteer fire or rescue department members to participate in the Tax Credit Incentive Act adopted in 2016. This bill simply makes a technical amendment to bring counties and their volunteers into the law.

The bill will be heard by the Revenue Committee on Wednesday, January 17th, in room 1524 at 1:30 p.m. The Associations support this legislation.

The LB 886 tax credit form is now available.

LB 886 tax credit form

Refundable Individual Income Tax Credit for Volunteer Emergency Responders (LB 886 – Operative for taxable years beginning or deemed to begin on or after January 1, 2017)LB 886

Beginning with tax year 2017, qualified active volunteer emergency responders, rescue squad members, and firefighters receive a refundable income tax credit equal to $250 beginning with the second taxable year in which the qualified active volunteer is included on a certified list. Qualified active volunteers accumulate points for service and emergency service related training and activities. Each city, village, or rural or suburban fire protection district must file a certified list of those volunteers who have qualified as active emergency responders, rescue squad members, or firefighters for the immediately preceding calendar year with the Department of Revenue by each February 15.

Your Client’s Emergency Vehicle Crashed, Now What?

by Joe Garcia of OBGR

 

Emergency personnel are trained to know exactly how to respond to every type of accident. But, are they prepared to respond properly and quickly when their own emergency vehicle crashes? In 2016, the National Fire Protection Association (NFPA) reported there was an estimated 15,425 crashes involving fire department emergency vehicles.
The following steps are examples you can provide your fire department clients to help them protect their employees and the public in the event of an accident.
Step 1: Have a policy in place
Every department should have a policy and training in place to respond to an accident involving an emergency vehicle. All members of the department should be trained on how to properly fill out an accident report form, talk to investigators and report the crash to dispatch and insurance. Ensure all accident report forms are accessible and
designate who from the department will respond to an accident. All policies should be distributed throughout the department and training should occur at least annually. Having a plan in place can reduce the consequences following the accident.
Step 2: Safety
If an accident does occur, the first thing that should be attended to is safety. Immediately notify the department that there has been an accident so that another emergency vehicle can be dispatched to the original emergency. At this time, it’s important to also notify the local law enforcement agency. If able, the involved crew should provide aid to any of the injured parties. After medical assistance has been provided, secure the accident scene so that other vehicles will not hit and further damage your emergency vehicle. Before moving the vehicle, if safe to do so, document the position of the vehicle with photographs or a sketch.
Step 3: Documentation
Using a readily available accident form, document the accident. Having a camera to take photos is a good idea, but a cell phone camera will work as well if your department cannot supply each vehicle with a camera. After filling out the accident report form, get the names and contact information from all parties involved in the accident. At this
time, consider also acquiring names, contact information and statements from witnesses. Never admit any fault at the scene of the accident. Provide the information you collected to the police department.
Step 4: File a Claim
Report the accident through your insurance agent as soon as possible, but no later than 24 hours after the accident. Provide all the information you collected to the insurance company in a timely manner to expedite claims and/ or repairs. Once all of the collected information and accident forms have been provided to necessary parties, the
documents should be stored for future investigations made for legal or insurance purposes. All personnel should be trained on proper document storage during policy and procedure training.

Step 5: Vehicle Inspection and Repair
Once the emergency vehicle has been returned safely and the investigation has been completed, an inspection must take place. Have an inspection plan in place that will determine whether the emergency vehicle can be used until repairs are made. To expedite the repairs, know where to go to get emergency equipment repaired.
Step 6: Vehicle Re-Certification
Unfortunately, repairing the damaged equipment doesn’t mean your emergency vehicle is automatically ready to be reinstated into the fleet. Many pieces of equipment (e.g. the Arial truck and snorkel) may need to be re-certified before the emergency vehicle is deemed safe. After the equipment has been re-certified, your insurance company
may need to verify this before the emergency vehicle is fully covered.
Accidents happen but many are preventable. If your emergency vehicle has an accident, properly reporting and investigating each accident is important in finding potential solutions. If your department has questions regarding your current policy or questions about getting started, contact your risk control resource through your insurance
carrier.
Local fire departments and emergency responders have a tremendous responsibility to keep their communities safe, and protect the people who live there. With an instinct to protect strengthened by integrity and reliability, it’s important to find an insurance carrier with similar values. OneBeacon Government Risks understands the unique
responsibilities of firefighters and first responders, and we’re here to help minimize their risks, resolve claims and make the community a safer place to live and work. Our FirstFire Services™ insurance coverages include automobile, property, inland marine, general liability, management liability, employment practices liability and excess liability.

Questions?  Give us a call!

Erin Ball, Agent/Owner

erin@ballinsurance.biz

Ball Insurance Services
Phone 402-858-6611

Cell (402) 540-4948
Fax (888) 900-1167
PO Box 399
Eagle, NE 68347

www.ballinsurance.biz

 

NEMSA Alert! – CRITICAL STATUS

 

 

 

The temporary Medicare ambulance increases of 2% urban, 3% rural and 22.6% to the base rate in super rural areas are scheduled to expire on December 31 of this year. That is just one month away! We need all NEMSA members and their employees to ask your Senators and Representatives to support Medicare Ambulance Relief!

 

Please take one minute to click on this link, fill out a brief web form with some basic contact information and have letters sent to your elected officials. Time is of the essence!

 

Click here to contact your members Congress

https://ambulance.org/advocacy/permanent-medicare-ambulance-relief/

Tweet at your members of Congress

https://cqrcengage.com/the-aaa/app/tweet?0&engagementId=419513

Background

Ambulance service providers in Nebraska have been working with and are supportive of the efforts championed by the American Ambulance Association in asking Senators for support of the ambulance provisions in their recently released Discussion Draft on a Medicare provider extender package and to co-sponsorship of S. 967.

 

Collectively, we are asking Representatives for their support for a five-year extension of the Medicare ambulance increases. We are also asking for revisions to a cost reporting provision in H.R. 3729 by providing the Centers for Medicare and Medicaid (CMS) with greater flexibility in how it would collect ambulance cost data and addressing the penalty for not providing timely or acceptable data.

 

Cost Reporting

 

Congress is considering ways to collect Medicare cost data from ambulance service suppliers and providers. The Senate version, which the AAA prefers, would require a statistically significant sampling of ambulance service suppliers and providers and would provide CMS with significant flexibility on how the system would be designed.  The House version would require all ambulance service suppliers and providers to submit an annual “cost report” which would be subject to a strict financial penalty for not providing timely as well as full data.  The AAA is continuing to push for changes to the House Bill and there has been some confusion in the industry about these two provisions. The bottom-line is that any collection of cost data needs to be tailored to meet the unique needs of ambulance services.

 

It is vital that our representatives hear from as many people as possible. Please push this request out to as many within your organization as you see fit. Should you have any questions, please contact acamas@ambulance.org. Thank you in advance for your help. We will provide follow-up information as it becomes available.

 

Sincerely,

 

Taylor Moore

NSVFA Office

http://www.nsvfa.org

402-761-2211

 

 

 

 

Have a Sign Ordinance? Adopt a Moratorium Now!

• by Emily Nagle
• July 20, 2015

This article was republished with permission from Freeman Mathis & Gary, LLP.

United States Supreme Court Opinion Could Render “Thousands” of Sign Ordinances Unconstitutional

The United States Supreme Court has issued a ruling that several justices acknowledged will render “thousands” of sign ordinances vulnerable to attack under the First Amendment.  The particular provision at issue in Reed v. Town of Gilbert, 2015 WL 2473374, limited the size, location and duration of directional signs for temporary events, which were treated differently from “Political Signs” and “Ideological Signs.”  Although the regulations applied regardless of the event being held, the Supreme Court determined that the provision was based on its content, and therefore subject to the highest level of review under the First Amendment.  Termed “strict scrutiny,” this standard means that provisions are deemed “presumptively unconstitutional,” with the burden on the government to show that the regulation is necessary to meet a compelling governmental interest – a standard that is virtually impossible to meet.

The sign ordinance at issue contained provisions regulating “Political Signs”, “Temporary Directional Signs” and “Ideological Signs” by different standards.  The ordinance defined a “Political Sign” as any “temporary sign designed to influence the outcome of an election called by a public body”, “Ideological Sign” as any “sign communicating a message or ideas for noncommercial purposes that is not” certain other types of noncommercial signs, including a  Temporary Directional Sign Relating to a Qualifying Event, and “Temporary Directional Signs” as any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a “qualifying event.”  A “qualifying event” was any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

The petitioners, a church and its pastor, challenged the provisions relating to the Temporary Directional Signs on the ground that these types of signs were subject to more onerous regulations than Political Signs and Ideological Signs, and that these different regulations were content-based and thus violated the First Amendment.  The Ninth Circuit ruled that these regulations were not content-based and were valid content-neutral regulations.

Reversing the Ninth Circuit, the Supreme Court held that the provisions at issue were content-based on their face because they applied different regulations to different types of signs based on the message conveyed.  The Court also held that, because the provisions were content-based on their face, it did not need to consider the Town’s justifications or purposes for enacting the sign ordinance in order to determine whether the ordinance was subject to strict scrutiny.  The Court then held that the ordinance did not survive strict scrutiny.

The Court stated that its opinion still left the Town with “ample” content-neutral options for regulating signs to advance its interests in safety and aesthetics, such as regulations based on size, lighting, portability and other factors.  The Court also noted that the Town could “almost entirely prohibit signs on public property if it did so in a content-neutral manner.  In addition, the Court suggested that certain types of safety signs, such as warning signs marking hazards on private property or signs directing traffic, may survive strict scrutiny.

A concurring opinion authored by Justice Alito and joined by Justices Kennedy and Sotomayor (all three of whom joined the majority opinion too), offered “a few words of further explanation” and stated that the Court’s opinion will not leave local governments powerless to enact and enforce reasonable sign regulations.  Justice Alito’s concurring opinion, while disclaiming any attempt to provide a comprehensive list, identified several types of regulations that would not be subject to strict scrutiny.  Proper areas of regulation included: (1) size; (2) location , such as free-standing signs versus those attached to buildings; (3) illumination; (4) animation (electronic vs. static); (5) placement of signs on private and public property; (6) placement of signs on residential or commercial property; (7) on-premises and off-premises signs; (8) number of signs along a roadway; and (9) time limitations on signs advertising a one-time event.  Justice Alito’s concurring opinion also emphasized that local governments could display their own signs to promote safety, such as directional signs and sign pointing out historic sites and scenic spots.

Another concurring opinion, authored by Justice Kagan and joined by Justices Breyer and Ginsburg, agreed that the regulations at issue were invalid under the First Amendment, but on the ground that they failed intermediate scrutiny as a content-neutral time, place and manner regulation.  Justice Kagan warned that, notwithstanding the assurances contained in the majority opinion and Justice Alito’s concurring opinion, “thousands” of sign ordinances around the country could be deemed content-based and subject to strict scrutiny as a result of the Court’s opinion, even though such local sign ordinances do not threaten core First Amendment values.  Justice Kagan also warned that the Court “may soon find itself a veritable Supreme Board of Sign Review” as a result of the Court’s opinion.  Justice Breyer wrote a separate concurring opinion criticizing the majority’s application of strict scrutiny to the sign ordinance at issue.

So where does that leave local governments?  The best course of action is to adopt a moratorium on the erection of all signs in your jurisdiction while your counsel reviews the sign ordinance.  It is very difficult to predict how lower courts will apply this case as there appear to be inconsistencies within the majority opinion. Additionally, while the majority opinion is joined by six justices, three of the six participated in a concurring opinion that qualified the majority opinion. It appears only a minority of the justices believe “if you have to read it, it is content based and invalid.”  At this point, however, an ordinance that regulates size, height, and location, with limited distinctions between commercial and noncommercial speech appears to be the safest approach.

Note: FMG partner Philip Savrin argued Reed before the United States Supreme Court, with the assistance of Dana Maine and Bill Buechner.

 

    

Safe Driving is Serious Business

 

Today marks the beginning of “Drive Safely Work Week,” an annual campaign sponsored by the Network of Employers for Traffic Safety (NETS). NETS provides numerous materials that can be used to spread awareness throughout your company including emails, fact sheets, PowerPoint presentations, pledge cards and more!

To download and utilize the resources, click here.

Although “Drive Safely Work Week” is only 7 days, it is important to recognize and practice those habits year round. Safe driving practices can dramatically reduce the number of vehicular claims your public entity faces.

OneBeacon Government Risks wants to provide your public entity with the necessary tips to reduce the exposure caused by distracted driving. Setting expectations through clear communication and rules, establishing appropriate discipline and providing effective supervision is an important part of helping control these unique set of hazards.

Tips:

 1. Immediate and upper management needs to communicate to all drivers that:

The safe operation of their vehicle is an important part of their job

Distracted driving should be avoided in all departments

Safe vehicle operation is preferred over quick arrival at the end destination

2. Not only should you provide driver with basic rules, consider also including “prohibited tasks while vehicle is moving”

3. Develop disciplinary procedures to address non-compliance and distribute to all

4. Include the distracted driving topic within all driver training

5. Be sure department managers are not creating part of this distraction by encouraging or participating in visual, manual, and cognitive distractions

6. Law enforcement management should limit officers from routinely inputting data and attempting to read computer screen while driving.

7. Complete a ride along evaluation with all departments to see what their distractions are and how they are managing it

8. Ask the drivers for input as to what is their biggest “in-vehicle” distraction

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For more resources:

The National Highway Traffic Safety Administration also provides some great tools and resources on distracted driving.

You can also download OneBeacon Government Risks’ guide, “Who’s Most Distracted Driver In Your Community?” to help educate your officers on how to reduce their distractions while driving.

 

Safe Driving is Serious Business

SFM Training Division Classes

For more information visit the SFM Training Division web site at:

https://nebraskasfmtd.ne.gov/Courses/Courses_Avail.aspx