Judge Tells Homeland Security To Shut Up And Release Aaron Swartz's File

from the about-time dept

Tue, Jul 9th 2013 4:45am — Mike Masnick

After Aaron Swartz's suicide, Kevin Poulsen filed a Freedom of Information Act (FOIA) request to the Department of Homeland Security, asking for the Secret Service's file on Aaron Swartz, since it was the Secret Service that handled the bulk of the investigation. Aaron, himself, was a big user of the FOIA process, including retrieving his own FBI file concerning his earlier run-in with the authorities over downloading PACER material. So it seemed bizarre that the Secret Service denied Poulsen's request, "citing a FOIA exemption that covers sensitive law enforcement records that are part of an ongoing proceeding." Considering that the case was closed and Swartz was dead, that seemed like a ridiculous excuse.

Poulsen went through the official appeal process, which was ignored leading him to officially sue. In May, the government admitted that the law enforcement exemption no longer made sense, but then continued to do nothing about releasing the documents. However, Judge Colleen Kollar-Kotelly (a former FISA Court judge, and a name associated with various other high profile cases over the years) has now ordered the government to begin releasing the documents it has held about Aaron.

DHS claims that just last week it found a new stack of documents, and that it needs time to go through them all. The judge gave them a deadline of August 5th, but said it needs to already start releasing the documents it has already reviewed.

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Filed Under: aaron swartz, colleen kollar-kotelly, foia, homeland security, kevin poulsen, secret service

20 Comments

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RyanNerd (profile), 9 Jul 2013 @ 5:17am

Be prepared
for the release of a bunch a documents with large blocks of black lines through them that essentially say nothing.
(Sorry, I try not to be cynical but with Amerika in the current state it is in it is very difficult.)
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Anonymous Coward, 9 Jul 2013 @ 5:31am

Re: Be prepared
What needs to happen is the judge should just go into their building, look through the documents, and decide what needs to be released. Or some independent auditor or something. Otherwise the government can simply not release a document and who would know.
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Anonymous Coward, 9 Jul 2013 @ 5:35am

Probably they are out of toner to properly print out the redacted text.
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Anonymous Coward, 9 Jul 2013 @ 5:48am

The FOIA process is not simply grabbing documents and sending copies indiscriminately. Federal agencies almost universally have a FOIA Office that is staffed by people well versed in law. They are generally mid-level civil servants who, when a FOIA request is received, send out a memo to the "world" asking agency groups to go through their files and identify any that appear to meet the types of files being requested. Memo recipients gather any such files, initially assess if a FOIA exemption might apply, and then forward them en masse to the FOIA Office. It is the job of the FOIA Office to then ascertain is the initial assessments have a basis for claiming an exemption, and ultimately respond back to the requestor with copies of what can be released and a detailed listing of each document withheld and why. Depending upon the scope of the request, action by the FOIA Office my run from only a few days to many, many months. Sometimes FOIA Office responses are delayed because third party (non-government) information is involved, and the third party must be consulted.

The point of my above summary is merely to point out that in many instances (not necessarily here, but perhaps) the turn around for FOIA requests is a time-consuming task that can take an inordinately long amount of time.

Have I seen some FOIA "games"? Yes, a very few, but they tend to be quite rare and the process should not be vilified entirely because of this minority.
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Anonymous Coward, 9 Jul 2013 @ 5:59am

Re:
The above, correctly stated, should say that most persons who staff FOIA Offices are generally not well versed in the pertinent law. Thus, it is not at all surprising if some initial responses seem a bit screwy...precisely what generally transpires when dealing with agencies in most matters.
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Anonymous Coward, 9 Jul 2013 @ 6:30am

this going to be a similar case to Dotcom, from the point of view that the only reason(s) for not releasing the documents/information is because of the fuck ups made by the law enforcement agencies concerned and members in particular, and how they are trying to cover arses! this excuse of 'national security' and similar should be removed as options in all cases for not releasing information when requested. if not, it could be used as a reason why not to tell what toilet cleaner is used!
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Anonymous Coward, 9 Jul 2013 @ 6:58am

Meanwhile, the FBI continues to be the least scandalous federal law enforcement agency. They rank above State Highway Patrol and Sherif's offices in jurisprudence.
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Anonymous Coward, 9 Jul 2013 @ 7:42am

Re: Re:
It's actually a mixed bag. In many offices, FOIA is a collateral duty that occipies less than 1% of an individual's time. In other offices, there are several employees where FOIA is their full-time job. Needless to say, it's reasonable to expect that the latter are a little more familiar with the FOIA, processing rules, etc.

More concerning in this case is the allegation that the appellate authority ignored the appeal. Assuming the appeal was ignored, rather than closed on a procedural basis, this is extremely problematic. The point of the administrative appeal process is to ensure a cosistency of response across a FOIA program. Furthermore, appellate authorities tend to be actual lawyers and the entities involved in litigation should it come to that. So they have a compelling reason to get it right.

Also, I'd say that the processing time can actually range from less than a day (there are instances of same-day response) to taking several years, especially when dealing with records coordinated between several agencies. And that goes double (at least) for classified information.
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Mike Masnick (profile), 9 Jul 2013 @ 7:42am

Re:
The FOIA process is not simply grabbing documents and sending copies indiscriminately

No one argued otherwise.

Federal agencies almost universally have a FOIA Office that is staffed by people well versed in law.

Overworked people.

They are generally mid-level civil servants who, when a FOIA request is received, send out a memo to the "world" asking agency groups to go through their files and identify any that appear to meet the types of files being requested

Yes. But that is unrelated to what happened in this situation.

Depending upon the scope of the request, action by the FOIA Office my run from only a few days to many, many months

As I assume you well know, that's actually not what the law allows. The FOIA has a deadline on it -- a deadline that is almost never met. I recently had a FOIA request take nearly 8 months, and then they sent me something entirely different than I requested.

But, again, that's got nothing to do with the situation above. You seem to be bitching about a post here for the sake of bitching and showing off that you think you have knowledge that people here don't have.
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Anonymous Coward, 9 Jul 2013 @ 7:49am

Re: Be prepared
Technically, they could try this gambit, but it wouldn't be a good idea. There will be redactions (and there should be redactions), but, once it's reached the point of court-ordered disclosure, there's going to be an increased level of scrutiny on any FOIA exemption claims. And, especially if it appears that DHS isn't really cooperating, the Judge can require production of a Vaugn index and/or in-camera review of the documents.

The courts, generally speaking, have very little patience for "FOIA games," and they aren't afraid to hit the government with hefty fines/damages for acting in poor faith.
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Anonymous Coward, 9 Jul 2013 @ 8:17am

Re: Re:
No, I am simply providing some measure of context associated with the FOIA process that is never provided here in articles comprising FOIA Bitchfests...
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TaCktiX (profile), 9 Jul 2013 @ 8:18am

Re:
Dang sequestration...
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Anonymous Coward, 9 Jul 2013 @ 8:18am

Re: Re: Re:
Context is only useful when relevant.
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Anonymous Coward, 9 Jul 2013 @ 10:35am

Re: Re: Re:
Context that actually matters:

determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination;

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Anonymous Coward, 9 Jul 2013 @ 11:34am

Gimme the file bitch!
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art guerrilla (profile), 9 Jul 2013 @ 11:49am

Re: Re: Re:
1. no, you *are* being a pedantic dick...

2. TOTAL BULLSHIT on the 'oh, only happens oncedest in a blue moon when it is a weally, weally hard request', i'd be willing to bet that there is a majority of requests/responses that do NOT meet their own rules/guidelines...

3. this dead horse bears flogging: chocolate jesus CLAIMED he would run the most transparent administration EVAH ! ! ! and is ABSOLUTELY turning that on its head...

4. as a matter of general principle, FORCING people to file FOIA requests (which will probably NOT get a responsive -if technically fulfilling their rules- answer) is the fascist tale wagging the democracy dog: AS DEFAULT, EVERYTHING SHOULD BE RELEASED UNLESS PROVEN OTHERWISE, instead of the other way around...

5. that is OUR SHIT, EVERYTHING 'our' (sic) gummint does is OUR SHIT, we shouldn't have to jump through hoops to have access to OUR SHIT...

6. you are simply an authoritarian apologist and status quo dickless wormtongued greedtard copymaximalist who is plumping for the 1% and ignoring the 99%...

art guerrilla
aka ann archy
eof
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krolork (profile), 9 Jul 2013 @ 12:08pm

Re: Re: Be prepared
"On July 14, 2004, barely two months after President Bush was forced to end NSA domestic internet metadata collection by Attorney General John Ashcroft, Kollar-Kotelly issued a FISA court order allowing the NSA to resume domestic internet metadata collection.[2]" - Wikipedia (Colleen Kollar-Kotelly).

I wouldn't trust her judgement.
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Anonymous Coward, 9 Jul 2013 @ 12:10pm

Re: Re: Re: Re:
So, they have "four business weeks" (assumed to be Monday to Friday, excepting national holidays).

Good to know.
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akp (profile), 9 Jul 2013 @ 2:51pm

Re: Re: Be prepared
Why should there be redactions? Swartz was a US citizen, now deceased, and nothing about his case has ever been said to fall under "national security."

There should be no redactions.
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Truth, 9 Jul 2013 @ 4:41pm

They murdered Swartz
It was not a suicide. He was suicided.
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