Happy Sunshine Week: Introducing The Foilies

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Dave Maass | Boulder Weekly

Welcome once again to Sunshine Week! It’s that time of year when journalists, citizen watchdogs, community activists, data wizards, political gadflies, public-records litigators and open-gov fanatics come together to champion the cause of transparency and commiserate over the obstacles we face everyday while chasing sunlight.

A few weeks ago, the Electronic Frontier Foundation (EFF) put out a call for nominations for The Foilies, a set of awards to recognize some of the most absurd, frustrating and outrageous interactions with the government that the transparency community experienced in 2014. We received dozens of submissions crossing the spectrum, from local citizens butting heads with city officials to national media organizations struggling against some of the largest federal agencies. With the help of the Sunlight Foundation, MuckRock and CJ Ciaramella of the FOIA Rundown, [EFF] filtered the most noteworthy and sorted them by broad themes.

The following is the first batch of winners. [EFF is] calling these Round One winners the Process Foilies, because sometimes it’s the public records process itself that gets in the way of transparency, whether it’s exorbitant fees, epochal waiting periods or institutional indifference.

Round 1: Process Foilies

Most Expensive FOIA Estimate 

Drug Enforcement Administration’s “El Chapo” Files

In March 2014, MuckRock user John Dyer filed a Freedom of Information Act request for records associated with the DEA’s involvement in capturing Mexican drug lord Joaquin “El Chapo” Guzman in Mexico. The DEA responded that they had identified 13,051 potentially relevant case files and they’d be happy to provide them as long as Dyer paid $1,461,712 upfront for search fees — potentially the highest FOIA estimate in history. As a token of their good faith, the DEA told Dyer he could have two hours of search time and 100 pages of copies for free.

Semper Absurdus Medal 

U.S. Marine Corps’ Five Oldest FOIA Requests

If Inception was actually a comedy of errors about paperwork, then FOIA requester Jason Smathers might’ve been cast in Leonardo DiCaprio’s place. Like entering a dream within a dream, Smathers filed a FOIA request in 2010 for the Marines’ five oldest FOIA requests.

Four years later, everything that could’ve gone wrong has gone wrong. Months at a time passed with no response to his follow-up emails, except for the occasional automatic “away” message. The request was bounced between administrators, put on hold during the government shutdown and stalled when an employee retired. In  2014, the Marines told Smathers that the files he sought were sent to an encrypted, external archiving server, which then crashed and had to be sent out for repair, with no estimate when it might be back in service. Now four years on, his request for old requests is well on its way to becoming an old request itself.

Most Analog-Age Excuse 

The Mississippi Department of Human Services’ Metal File Fasteners

In April 2014, The Hechinger Report set out to investigate the quality of Mississippi’s licensed childcare centers and filed a public records request with the Mississippi Department of Human Services for a year’s worth of inspection reports. As Education Reporter Jackie Mader writes:

“These reports are public records, but are not published anywhere. That means if a parent would like to see an inspection report before enrolling their child in a center, they must file a public records request, which for parents in the poorest and most rural parts of the state, can be an immense challenge, if not impossible.”

Mississippi gave The Hechinger Report a quote of $26,527, claiming it would take 45 minutes to compile each 10-page record, at a cost of $40 per hour. Some of that effort would involve redacting children’s personal information and standing at the copying machine, but that wasn’t the only cost. As the department lawyers told the state’s ethics commission after The Hechinger Report filed a complaint (bolding added):

“…the Department’s child care licensing files are paper files maintained in expandable file folders — they are not digital, because they involve a great deal of handwritten inspection and investigation notes. A staff member will then remove all of the responsive paperwork for the past year from the files of each of the 438 facilities. (We would point out that all of the files are two-hole punched at the top with metal fasteners, so it is somewhat time-consuming to remove paper from the files.)”

Soggiest Records 

The Great FBI Flood of 2011

Kevin Savetz of AtariPodcast.com wanted to see if the FBI has investigated Atari or Mattel. Meanwhile, Miles Madison wanted to know if the FBI had investigated a certain Romanian cycling champion. Both received this response:

“On September 8, 2011, the facility where the records are stored suffered a catastrophic flood that temporarily prohibits access to these records. Remediation is ongoing for the records stored in this facility. Unfortunately, we are unable to determine if, or when, these records will be available for review.”

After he got nowhere with his appeal, Madison filed a new FOIA request in August 2014, this time seeking all records relating to the flood, including damage assessments, the remediation plan and its associated costs, and any reports outlining the cause of the flood. Seven months later, the FBI still hasn’t provided any documents to prove that the records will ever be salvaged.

Least Transparent Transparency 

New York Police Department’s Freedom of Information Law (FOIL) Materials

Frustrated with being stymied by the NYPD’s FOIL unit, MuckRock’s Shawn Musgrave filed a FOIL request for the handbooks and training materials that guide the FOIL units’ processing of requests. No dice, a “records access officer” wrote back, those documents are exempt from FOIL because they are attorney work product and covered by the attorney-client privilege.

Round 2: Law Enforcement Accountability Foilies

Police practices came under intense public scrutiny in 2014, as citizens raised further questions about the use of mass surveillance technologies and deadly force. From Ferguson, MO., to New York City, from Alameda County to Tucson, watchdogs have sought records to hold law enforcement agencies accountable for abuses. As one might expect, many of these local and federal police agencies have shunned sunlight, often citing absurd excuses to withhold documents.

For Sunshine Week, EFF began collecting transparency horror stories for The Foilies to highlight problems citizens face in the Freedom of Information Act and other publicrecords request processes. So many of the nominations involved secrecy within law enforcement agencies that we decided to compile them together for our Round 2 of the Foilies.

EFF has been engaged in a yearslong battle over various surveillance technologies, including lawsuits against Los Angeles law enforcement agencies over automatic license plate readers (ALPRs) and against the U.S. Department of Justice over cell phone tracking devices on planes. We’re glad that we’re not the only ones working to shine light on these issues.

Special Achievement in Battery Draining, Mass Surveillance Category 

City of Lansing/Lansing Police Department’s Automatic License Plate Readers

The Lansing Police Department purchased a set of automatic license plate readers, little cameras that cops mount on the trunks of their cars to capture the license plate of any other car nearby. Yet, when a local resident filed a records request for ALPR data, he was told it didn’t exist due to “malfunctioning of the automated LPR technology.”

A few weeks later, the Lansing city attorney sent a second letter admitting that a few months of ALPR data did exist and that it was all an “internal misunderstanding.” The letter further explained that the police were using ALPR less and less due to myriad problems, including the devices “draining the car batteries” and “hot sheets not downloading automatically.”

Nevertheless, the city refused to hand over the limited data in their possession. In earlier justifications for using ALPR, police had cited case law to claim “that a person traveling on public roads has no expectation of privacy in his movements.” Now, however, the city is claiming that data must be withheld because “disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”

Most Egregious Nationwide Conspiracy to Hide Surveillance Technologies 

Federal and local law enforcement agencies across the United States

We received scores of nominations regarding law enforcement use of  “Stingrays,” also known as IMSI catchers, devices that emulate cell towers to track mobile phone users. In San Diego, the city attorney refused to turn over documents related to Stingrays, even ones already available on the city’s website. The Tacoma Police Department responded to a request for non-disclosure agreements with that same company with four completely blacked out pages. We received similar stories from Erie County in New York and the city of Charlotte, N.C., but perhaps the FBI’s secrecy was the worst.

The FBI told MuckRock it couldn’t locate a log of non-disclosure agreements with police departments regarding Stingrays, only to later find it and claim that document would be withheld in full. In Daniel Rigmaiden’s FOIA battle over Stingrays, the FBI tried all sorts of tricks to withhold the records, including arguing that “the stigma of working with the FBI would cause customers to cancel the companies’ services and file civil actions to prevent further disclosure of subscriber information” and that releasing the information would result in “economic retaliation against the United States.” The FBI has also butted into local public-records cases to keep the information from becoming public. In one affidavit, the FBI even claimed that any official who released Stingray details to a media organization could face 20 years in prison and a $1 million fine.

These cases may just be the tips of a field of icebergs.

Most Dubious Delay in Providing Police Use of Force Records 

Corpus Christie Police Department

A Texas woman made a selfie-style video as she was put in a chokehold by a police officer in a Whataburger parking lot. After the YouTube clip went viral, Mike Rekart of Photographyisnotacrime.com put in a public records request for the department “use of force” policy.

Corpus Christie police stalled release of the document, claiming it was “copyrighted” and required special authorization. That delay gave the department enough time to amend the policy so that the version they eventually gave the requester was not the version in place during the controversial chokehold.

Most Outrageous Argument for Withholding Police Use of Force Records 

Victoria Police Department

In Victoria, Texas, a police officer was caught on dashcam video throwing a senior citizen to the ground and zapping him with a Taser. When Rekart tried to obtain the policy related to use of force and weapon discharges, the police asked the Texas attorney general to rule that these could be kept secret, because release “could impair an officer’s ability to arrest a suspect by placing individuals at an advantage in confrontations with police.”

Citizens have a right to know what to expect when interacting with police, so they can behave in a way that won’t get them choked, Tased or shot. Similarly, citizens should know what to expect in terms of surveillance technologies, so they can participate in crafting policing policies and priorities in their communities. Yes, transparency gives the public an advantage, but that’s also an advantage for law enforcement, through trust-building and mutual understanding. Sunshine makes us all safer.

Respond: letters@boulderweekly.com

These Foilies and more, along with a wealth of additional information on transperancy issues, can be found at www.eff.org where they were previously published.

Dave Maass is an investigative researcher for the Electronic Frontier Foundation. He uses transparency and public records to shine light on the surveillance state. Before joining EFF, he worked as a writer for a number of altweeklies located along the southern U.S. border.