News+Opinion » Features

Recognizing the year's worst in government transparency

The 2019 Foilies

by

comment

In South Carolina, the Freedom of Information Act describes in detail how public bodies are required to disseminate public records. That usually means formally submitting a Freedom of Information Act (FOIA) request and waiting. You might trade phone calls and emails with a public information officer. Lawyers might get involved. You may wait weeks or months only to be told that the records you requested aren't available. And the process starts again. This week's issue looks at bungled disclosures from across the country from that middle time, after an initial request, but before the whole story gets told. —Sam Spence

Since 2015, the Electronic Frontier Foundation (a nonprofit that advocates for free speech, privacy, and government transparency in the digital age) has published The Foilies to recognize the bad actors who attempted to thwart the quests for truth. With these tongue-in-cheek awards, we call out attempts to block transparency, retaliation against those who exercise their rights to information, and the most ridiculous examples of incompetence by government officials who handle these public records.

The Preemptive Shredding Award

Inglewood Police Department

In defiance of the law enforcement lobby, California legislators passed a law (SB 1421) requiring police and sheriffs to disclose officer misconduct records in response to California Public Records Act requests. These documents, often contained in personnel files, had historically been untouchable by members of the public and the press.

Almost immediately, police unions across the Golden State began to launch lawsuits to undermine these new transparency measures. But the Inglewood Police Department takes the prize for its efforts to evade scrutiny. Mere weeks before the law took effect on Jan. 1, 2019, the agency began destroying records that were set to become publicly available.

"This premise that there was an intent to beat the clock is ridiculous," Inglewood Mayor James T Butts Jr. told the LA Times in defending the purge. We imagine Butts would find it equally ridiculous to suggest that the fact he had also been a cop for more than 30 years, including serving in Inglewood and later as police chief of Santa Monica, may have factored into his support for the destruction of records.

HUGH D’ANDRADE
  • Hugh D’Andrade

The Intern Art Project Award

Vermont Gov. Phil Scott

Seattle isn't the only city to stumble in response to Matt Chapman's public records requests for email metadata. The Vermont governor's office also wins for its scissor-and-glue approach to releasing electronic information.

Rather than export the email information as a spreadsheet, the Vermont governor's office told Chapman it had five interns (three of whom were unpaid) working six hours each, literally "cutting and pasting the emails from paper copies." Next thing Chapman knew, he had a 43-page hodgepodge collage of email headers correlating with one day's worth of messages. The governor's attorney told Chapman it would cost $1,200 to process three more days' worth of emails.

Chapman pushed back and provided his own instructions on exporting the data using a computer and not, you know, scissors and glue. Sure enough, he received a 5,500-line spreadsheet a couple weeks later at no charge.

Ever heard of cut and paste transparency?
  • Ever heard of cut and paste transparency?

The Corporate Eclipse Award

Google, Amazon, and Facebook

Sunshine laws? Tech giants think they can just blot those out with secretive contracts. But two nonprofit groups—Working Partnerships and the First Amendment Coalition—are fighting this practice in California by suing the city of San Jose over an agreement with Google that prevents city officials from sharing the public impacts of development deals, circumventing the California Public Records Act.

Google's proposed San Jose, Calif. campus is poised to have a major effect on the city's infrastructure, Bloomberg reported. Yet, according to the organization's lawsuit, records analyzing issues of public importance such as traffic impacts and environmental compliance were among the sorts of discussions Google demanded be made private under their non-disclosure agreements.

It's not just Google using these tactics. An agreement between Amazon and Virginia includes a provision that the state will give the corporate giant — which is building a major campus in the state — a heads-up when anyone files a public records request asking for information about them. The Columbia Journalism Review reported Facebook has also used this strategy for companies to keep cities quiet and the public in the dark about major projects.

The (Harlem) Shaky Grounds for Redaction Award

Federal Communications Commission

ajit.jpg

After repealing the Open Internet Order and ending net neutrality, Federal Communications Commission Chairman Ajit Pai doubled down on his efforts to ruin online culture. He released a cringe-inducing YouTube video titled "7 Things You Can Still Do on the Internet After Net Neutrality" that featured his own rendition of the "Harlem Shake" meme.

MuckRock editor JPat Brown filed a Freedom of Information Act request for emails related to the video, but the FCC rejected the request, claiming the communications were protected "deliberative" records.

Brown appealed the decision, and the FCC responded by releasing all the email headers, while redacting the contents, claiming that anything more would cause "foreseeable harm." Brown did not relent, and a year later the FCC capitulated and released the unredacted emails.

"So, what did these emails contain that was so potentially damaging that it was worth risking a potential FOIA lawsuit over?" Brown writes. "Pai was curious when it was going live, and the FCC wanted to maintain a veto power over the video if they didn't like it." The most ridiculous redaction of all was a tiny black box in an email from the FCC media director. Once removed, all that was revealed was a single word: "OK."

If it Looks like a Duck Award

Brigham Young University Police

HUGH D’ANDRADE
  • Hugh D’Andrade

Brigham Young University's Police Department is certified by the state,* has the powers of the state, but says that they're not actually a part of government for purposes of the Utah transparency law.

After the Salt Lake Tribune exposed that the University punished survivors of sexual assault for coming forward and reporting, the paper tried to get records of communications between the police department and the school's federally required sexual assault coordinator. BYU pushed back, saying that the police department is not subject to Utah's Government Records Access and Management Act because the police department is privately funded.

This actually turns out to be a trickier legal question than you'd expect. Brigham Young University itself isn't covered by the state law because it is a private school. But the university police force was created by an act of the Utah legislature, and the law covers entities "established by the government to carry out the public's business." Investigating crime and arresting people seems like the public's business.

Last summer, a judge ruled that the police department is clearly a state agency, but the issue is now on appeal at the Utah Supreme Court. Sometime this year we should learn if the police are a part of the government or not.

*Because BYU police failed to comply with state law, and was not responsive to an internal investigation, the Utah Office of Public Safety notified the department on Feb. 20 that the BYU police department will be stripped of its certification on Sept. 1, 2019. The university police also plan to appeal this decision.

The Unreliable Narrator Award

President Donald Trump, the U.S. Department of Justice, and U.S. District Court Judges

When President Trump tweets attacks about the intelligence community, transparency groups and journalists often file FOIA requests (and subsequently lawsuits) seeking the documents that underpin his claims. The question that often comes up: Do Trump's smartphone conspiratorial rants break the seal of secrecy on confidential programs?

The answer seems to be no. Multiple judges have sided with Justice Department lawyers, concluding that his Twitter disclosures do not mean that the government has to confirm or deny whether records about those activities exist.

In a FOIA case seeking documents that would show whether Trump is under investigation, U.S. District Judge Amy Berman Jackson said that the President's tweets about investigations are mere "speculation." Similarly, in a FOIA suit to get more information about the widely publicized dossier of potential ties between Trump and Russia, U.S. District Judge Amit Mehta said that the President's statements are political rather than "assertions of pure fact."

And so, whether Trump actually knows what he's talking about on Twitter remains an open question.

The Scanner Darkly Award

huseman.jpg

St. Joseph County Superior Court

ProPublica reporter Jessica Huseman has been digging deep into the child welfare system and what happens when child abuse results in death. While following up on a series of strangulations, she requested a copy of a case file from the St. Joseph County Superior Court in Indiana. Apparently, the clerk on the other end simply took the entire file and ran everything through a scanner. The problem was that the file contained a CD-ROM, and that's not how CD-ROMs work. "Well this is the first time this had happened," Huseman posted to Twitter, along with the blotchy black-and-white image of the top of the disc. "They scanned a CD as part of my FOI and didn't give me its contents. Cool cool."

The Cash for Crash Award

Michigan State Police

As tech companies experiment with autonomous vehicles on public roadways, reporters are keeping tabs on how often these cars are involved in collisions. That's why The Information's Matt Drange has been filing records requests for the crash data held by state agencies. Some government departments have started claiming that every line of the dataset is its own, individual record and subject to a copy fee. Our winner, the Michigan State Police, proposed to charge Drange a 25-cent fee for each of a 1.9 million-line dataset, plus $20 for a USB drive, for a grand total of $485,645.24, with half of it due up front. Runners-up that quoted similar line-by-line charges include the Indiana State Police ($346,000) and the North Carolina Department of Transportation ($82,000). Meanwhile, Florida's government released its detailed dataset at no charge at all.

The Bartering with Extremists Award

California Highway Patrol

In 2016, the Traditionalist Worker Party (TWP), an infamous neo-Nazi group, staged a demonstration at the California state capitol in Sacramento. Counter-protesters also gathered to oppose the demonstration, and the scene soon descended into chaos, leaving multiple people injured. When the dust settled, a member of the public (disclosure: also a co-author of this story) filed a California Public Records Act request to obtain a copy of the permit the white nationalist group filed for its rally. The California Highway Patrol rejected the request for this normally available document, claiming it was related to a criminal investigation.

Two years later, evidence emerged during criminal proceedings that a CHP detective used the public records request as a bargaining chip in a phone call with the TWP protest leader, who was initially reluctant to provide information. The officer told him how the request might reveal his name. "We don't have a reason to, uh, deny [the request]," the officer said, according a transcript of the call. But once the organizer decided to cooperate, the officer responded, "I'm gonna suggest that we hold that or redact your name or something, uh, until this thing gets resolved." In light of these new facts, the First Amendment Coalition filed a new request for the same document. It too was denied.

The Outrageous Fee Request of the Year

City of Seattle

When self-described transparency advocate and civic hacker Matt Chapman sent his request to Seattle seeking the email metadata from all city email addresses (from/to/BCC addresses, time, date, etc), he expected some pushback, because it does sound like an incredible amount of data to wrangle.

Seattle's response: All the data can be yours for a measly $33 million. Officials estimated that it would take 320 years worth of staff time to review the roughly 32 million emails responsive to Chapman's request. Oh, and they estimated charging an additional $21,600 for storage costs associated with the records. The fee request is the second highest in the history of The Foilies (the Department of Defense won in 2016 for estimating it would take $660 million to produce records on a particular computer forensic tool).

But then the city did something entirely unexpected: It revisited the fee estimate and determined that the first batch of records would cost only $1.25 to process. We get it, math is hard.

That's not all. After paying for the batches of records with a series of $1.25 checks, Chapman received more than he ever bargained for. Rather than disclosing just the metadata for all 32 million emails, Seattle had given him the first 256 characters of every email. Those snippets included passwords, credit card numbers, and other personally identifying information.

What followed was a series of conversations between Chapman, Seattle's lawyers, and the city's IT folks to ensure he'd deleted the records and that the city hadn't just breached its own data via a public records request.

Ultimately, Seattle officials in January 2018 began sending the data to Chapman once more, this time without the actual content of email messages. The whole episode doesn't exactly inspire confidence in Seattle officials' ability to do basic math, comply with the public records law or protect sensitive information.

The Clawback Award

The Broward County School Board

After the tragic Parkland shooting, South Florida's Sun-Sentinel went to court to force the Broward County School Board to hand over documents detailing the shooter's education and disciplinary record. A judge agreed and ordered the release, as long as sensitive information was redacted.

But when reporters copied and pasted the file into another document, they found that the content under the redactions was still there and readable. They broke the story of how the school denied the shooter therapeutic services and alternative education accommodations, but then uploaded the school board's report with working redactions.

Rather than simply do better with double-checking their redactions next time, the school board struck back at the newspaper. They petitioned the court to hold the newspaper in contempt and to prevent anyone from reporting on the legally obtained information. Although the local judge didn't issue a fine, she lambasted the paper and threatened to dictate exactly what the paper could report about the case in the future (which is itself an unconstitutional prior restraint).

The Wrong Way to Plug a Leak Award

City of Greenfield, Calif.

The Monterey County Weekly unexpectedly found itself in court after the city of Greenfield, Calif., sued to keep the newspaper from publishing documents about the surprising termination of its city manager.

When editor Sara Rubin asked the interim city manager for the complaint the outgoing city manager filed after his termination, she got nothing but crickets. But then, an envelope containing details of a potential city political scandal appeared on the doorstep of one of the paper's columnists.

The weekly reached out to the city for comment and began preparing for its normal Wednesday print deadline. Then, the morning of publication, the paper got a call saying that they were due in court. The city sued to block publication of the documents, to have the documents returned and to have the paper reveal the identity of the leaker.

Attorney Kelly Aviles gave everyone a fast lesson in the First Amendment, pointing out that the paper had every right to publish. The judge ruled in the paper's favor, and the city ended up paying all of the Monterey County Weekly's attorney fees.

The Foilies were compiled by Electronic Frontier Foundation Senior Investigative Researcher Dave Maass, Staff Attorney Aaron Mackey, Frank Stanton Fellow Camille Fischer, and Activist Hayley Tsukayama. Illustrations by EFF Art Director Hugh D'Andrade. For more on their work, visit eff.org.

Add a comment