FOIA Requesters Sue Government Agencies Over Non-Responses To Requests For Election-Related Documents

from the and-this-is-how-the-public-alters-the-FOIA-response-timetable dept

Two of the nation's foremost FOIA enthusiasts -- Jason Leopold and Ryan Shapiro -- are suing a variety of federal agencies for their failure to respond to requests for documents related to the 2016 election.

The first lawsuit, filed a couple of weeks ago, concerns records pertaining to FBI director James Comey's actions in the last few weeks before Election Day. Most of the documents sought relate to the FBI's on-again, off-again investigation into Hillary Clinton's private email server. The pair also seeks a variety of communications between Comey and the rest of the FBI, as well as any internal FBI discussions about the number of leaks that accompanied Comey's last-minute dive back into the email investigation.

Shapiro and Leopold are also seeking unredacted copies of Clinton email investigation documents previously released by the FBI. They also would like to see what the FBI has on hand that references a variety of right-wing news sites, including Breitbart News and alternativeright.com.

The first lawsuit [PDF] alleges the FBI has violated FOIA law by not responding to their expedited request in a timely fashion. At the date of the lawsuit's filing, the FBI had yet to inform the requesters whether or not it would grant the request expedited status.

The second lawsuit [PDF], filed earlier this week, makes the same allegations. Expedited processing was requested, but the agencies targeted failed to rule on the processing request in a timely fashion. The list of defendants in this lawsuit is a bit longer. Shapiro and Leopold have requested election-related documents from the Office of the Director of National Intelligence, CIA, DOJ, and DHS. None of these agencies have issued a ruling on expedited processing.

The documents sought here are also a bit different. The two requesters are asking for documents held by these agencies that pertain to the Russian interference -- hacking or otherwise -- in the electoral process. There are some interesting keywords listed, including Guccifer, Elite VPN, two IP addresses, and anything related to the alleged compromise of Clinton campaign head John Podesta's devices/email accounts.

Obviously, both of the requests being sued over are time-sensitive and of considerable public interest. The longer these agencies delay their responses, the less "interesting" the information is to the public. Pulling the trigger on lawsuits two weeks after FOIA requests are filed is the new way of playing ball with federal agencies. Left to their own timetables, the agencies would likely release these documents sometime between "the distant future" and "never." This prompts the parties listed to at least adhere to the letter of the law and make a determination on expedited processing. And, given the information sought, there's no way these will be the only FOIA lawsuits related to the requested documents.

Filed Under: cia, dhs, doj, election, fbi, foia, hillary clinton, investigation, james comey, jason leopold, lawsuit, odni, russia, ryan shapiro

CIA Admits It Hasn't Touched FOIA Request In Six Years... Says It Will Close Case If Requestor Doesn't Reply

from the this-is-bad-and-you-should-feel-bad dept

Back in 2011, MuckRock user Jason Smathers filed a FOIA with the CIA for all responses they had sent to requesters containing the term "record systems." This was a reference to two earlier rejections he had received from the Agency, which cited the inability to perform a search in the system based on the terms Smathers had provided.

In response, the agency sent him partially redacted copies of those same two rejections.

Smathers immediately appealed, on grounds that it beggared belief that he had been the only requester to have ever had an exchange with the CIA that contained the words "record system."

Six years go by, and we hear nothing from the Agency regarding this request. Then, just this week, this letter arrives in the mail.

Which is worse? The casual admittance that they haven't done anything for over half a decade, or the unfathomable audacity of putting Smathers on deadline? And while two months sounds pretty generous, keep in mind that they've been sitting on this for 72 months -- a mere 36 times what they're giving him.

To give this some further context -- Smathers' request was assigned an internal MuckRock tracking number of 238. If you were to file a request today, you'd be given a number in the 31,000s.

To the CIA FOIA officer (not) reading this: There have been children born since this appeal was filed that you could have a conversation with. This is bad, and you should feel bad. Please don't be bad, be good instead.

And get rid of that damn fax machine.

Republished from Muckrock

Filed Under: cia, delay, foia, jason smathers
Companies: muckrock

Court Says Government Needs Better Excuses If It Wants To Keep Hiding DEA Surveillance Docs

from the even-these-bare-bones-are-barely-there dept

The EFF has won a small battle in a larger war against the US government for its continued withholding of documents related to its Hemisphere program. Files on this custom-built AT&T/DEA surveillance system have already made their way into the hands of the public. Contrary to the government's claims about other methods (warrants, subpoenas) taking too long to obtain phone records, previously-released documents showed AT&T employees worked directly alongside agents in DEA offices to perform instantaneous searches for records.

The EFF is seeking information not included in the Powerpoint presentation already produced by the DEA. It's looking for records on court cases where evidence derived from the program was submitted, communications between the government and AT&T concerning the program, communications between government agencies about the Hemisphere program, and Congressional briefings related to the side-by-side surveillance effort.

The government has refused to turn over much of what's been requested for a variety of reasons, the main one being infamous FOIA exemption b(5). The government has other reasons for withholding information, but this is its favorite. The court, however, finds that most of its arguments amount to little more than "because." From the opinion [PDF]:

Ultimately, the Government's declaration is too vague: it does not indicate even generally what sorts of legal issues are presented in these e-mails, nor does not explain what “features” of the Hemisphere program are at issue. That the communications were between an attorney and agency employees does not establish the documents are protected under the attorney client privilege; without more about what “features” or “legal issues” are discussed or why they might be confidential in nature, the Government has not raised enough facts to show that Document 1 may be protected by the privilege.

As for another disputed document, the court has this to say:

The Government is essentially asking the Court to presume that because it uses the word “subpoenas” and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document.

Yet another disputed document:

[T]he Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains “confidential legal advice,” again, this merely states the element without explaining the basis of that confidentiality.

The review of documents concludes with the court pointing out that the government's sole justification for its bare minimum explanations works against it:

Finally, while the Government argues its generalized descriptions are sufficiently specific to show the documents contain “confidential legal advice,” it relies only on cases that demonstrate how its support in this case is lacking. [...] The Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements.

The court remains less than impressed with the government's lack of effort throughout the remainder of the opinion. It's as if the government assumed the court would rubber-stamp its bare-bones assertions.

[T]he Government makes no further reference to any current or foreseeable litigation in either its supporting declarations or Vaughn Index or provide other context that would allow the Court make a de novo review of the Government's work product assertions. Again, the Government cannot satisfy its burden of proof by relying on a mere recitation of the elements.

[...]

Nor does the Government meet its burden merely by referring to law enforcement efforts.

[...]

The Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation.

[...]

[T]he Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions.

[...]

None of the Government's evidence suggests that exposing these documents would interfere with law enforcement proceedings.

The court also finds the government cannot withhold information related to cities Hemisphere was deployed in or agencies involved under FOIA exemptions. As the court sees it, the fearful assertions made by the government have no basis in observed reality.

The Government asserts this information “could be used by criminals to disrupt law enforcement operations or obtain unauthorized access to information about such operations.” But the Government does not explain how criminals could do this by using information about the cities and states where Hemisphere. EFF also notes that the public already knows that Hemisphere has regional centers in Atlanta, Houston, and Los Angeles, but the Government presents no evidence suggesting criminals have used this publicly available information to disrupt law enforcement operations or obtain unauthorized access to information.

The same goes for the names of the telecommunications companies the DEA worked in concert with to obtain telephone records.

[T]he Government asserts criminals could use this information to “tailor or adapt their activities to evade apprehension,” or “to attack facilities involved in the Hemisphere program.” In response, EFF argues the public has known for two and a half years—that is, since The New York Times‟ 2013 article on it—that AT&T supports Hemisphere, and the Government has not shown or even argued that criminals have ever attempted to use this information to evade or disrupt Hemisphere.

The Court agrees with EFF that the Government has not provided facts showing why it is likely criminals would use the identities of the companies that are instrumental to Hemisphere to evade or attack Hemisphere-related facilities.

The next step is an in camera review of the documents by the court to determine whether or not there's anything in these documents the government is justified in withholding. So far, the court appears unconvinced the government is engaged in anything more than opacity for opacity's sake. If the review goes as badly for the government as its FOIA lawsuit defense has, a lot more information on the Hemisphere program should be headed our way.

Filed Under: b5, dea, foia, hemisphere, surveillance
Companies: at&t, eff

Government Agency Says It Will Cost $1.5 Million To Compile Birth/Death Data, Then Refuses To Release It At All

from the ain't-no-sunshine-when-she's-withholding dept

The easiest way to thwart a public records request is to demand a ridiculous amount of money up front. The McKinney Texas Police Department tried to chase away a request for records on a controversial cop by asking for $79,000 to fulfill it. Florida's state attorney's office stiff-armed a mother requesting official documents related to her own daughter's suicide by telling her it would cost at least $180,000 to round up the records. Even the federal government gets in on this action, with the FBI telling MuckRock it would cost more than a quarter-million dollars to deliver its records on government contractor Booz Allen.

Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request.

Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015.

The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.”

The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost.

A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million.

Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%.

A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease.

If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed.

At that point, the DHSS decided it was no longer interested in working with Reclaim the Records.

A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether.

I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us."

Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business.

Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.”

“By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated.

Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission.

What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it.

Filed Under: foia, missouri, missouri dhss, public records
Companies: reclaim the records

VP Elect Mike Pence Goes To Court To Keep His Emails Secret

from the hypocrisy-again dept

After making it a key plank of the Trump/Pence campaign that the public needed to see what was in Hillary Clinton's emails, it does seem somewhat ironic that VP Elect Mike Pence is now headed to court to protect what's in some of his emails as governor of Indiana.

The administration is fighting to conceal the contents of an email sent to Gov. Mike Pence by a political ally. That email is being sought by a prominent Democratic labor lawyer who says he wants to expose waste in the Republican administration.

The circumstances are different, but the general principle is the same -- and there's a really important issue at stake when it comes to FOIA and public records issues. The background is fairly convoluted, but here's a quick summary. After President Obama announced a plan to defer enforcement of certain immigration laws for certain individuals, a few states were upset about it, and Texas and Indiana (where Pence is governor) sued the President. Pence hired an outside law firm to handle the case, and a local lawyer thought this was a waste of taxpayer funds. The lawyer filed public records requests to get access to emails about the decision to hire the law firm and to find out the costs to taxpayers.

Pence's office released some emails, but they were apparently redacted in places -- and in one case an email referred to an attached white paper that was not included. The lawyer who filed the request, William Groth, went to court to demand that the Pence administration reveal the full email with the attached white paper. The Pence administration has argued that it's not subject to public records requests as "attorney-client" work material -- but also that the courts are not allowed to question what the government chooses to release or redact under public records laws. A lower court agreed -- following an Indiana Supreme Court ruling saying that the courts cannot "meddle" in public records decisions by the legislative or executive branch due to "separation of powers." That's a bizarre reading of the law that seems to actually turn the concept of separation of powers on its head, as it kind of destroys a key part of that separation: the checks and balances of the three branches of government.

Either way, Groth has appealed, and that means that Pence is effectively going to court to argue that his emails as governor need not be revealed. Now, you can (and I'm sure some folks will...) argue that this is entirely different than the Clinton situation. But... it really isn't. The key issue in talking about the "33,000" emails that Clinton supposedly deleted was the fact that her legal team basically made the decision by themselves what documents were related to her government work and should be turned over, and which were personal, and thus deleted. If Pence is arguing that his office alone should get to determine which emails can be revealed and which cannot, it seems fairly hypocritical of him to also have argued that Clinton and her team shouldn't have been able to make the same decision.

But, of course, this is politics and the only real form of consistency is you argue for what benefits you and your team, no matter how contradictory it may be compared to when you're in similar situations.

But getting beyond the hypocritical symmetry here, this is an incredibly important issue. For many, many years, we've reported on how various governments -- federal, state, local -- seem to go out of their way to avoid truly complying with various FOIA and public records regulations. Indiana's ruling that such decisions cannot be challenged in court is ridiculous and basically takes away all of the power behind the state's public records law. Government officials can just refuse to release or redact whatever they want and get away with it. That's not any way to create government transparency. It's a way to hide corruption and sketchy behavior.

Filed Under: emails, foia, hillary clinton, indiana, mike pence, public records, redaction, separation of powers

Court Says Recording Of Public Interaction Involving Police Officer Not A 'Confidential Personnel Record'

from the screw-the-people-that-pay-our-salaries dept

The city of Eureka, California loves its cops but hates it citizens. How else can you explain its two-year legal battle to keep police camera footage out of the public's reach?

The North Coast Journal has been fighting with the city for the release of dash cam footage of an arrest of a 14-year-old that led to criminal excessive force charges. The city had argued that no footage was accessible via public records requests, an idea the appellate court found ridiculous.

So, for two years, it fought against transparency and accountability, funding its fight with taxpayers' money while working in opposition of their interests. Now, taxpayers are on the hook for the paper's legal fees as well. The backstory is this:

After criminal charges were dismissed, the Journal submitted a California Public Records Act request in August of 2014 asking for a copy of the video — a request the city denied, citing the discretionary exemptions for police investigative files and personnel records. In November of 2014, the Journal filed a petition in juvenile court under Welfare and Institutions Code 827, which carves out a process for members of the public to access juvenile court records, which are generally considered confidential.

In May of the following year, after reviewing the arrest video, [Superior Court Judge Christopher] Wilson granted the Journal’s request, finding the public interest in seeing the footage outweighed any privacy concerns and ordered the video released. The city then appealed, arguing that Wilson erred in his interpretation of the law and was allowing the Journal to circumvent state laws severely limiting access to confidential police officer personnel records — a series of statutes known collectively as Pitchess.

[Attorney Paul] Boylan countered that the video simply wasn’t the kind of record that would be protected by Pitchess, as it captured public employees carrying out their publicly entrusted duties on a public street and was not something generated by an internal affairs investigation or a disciplinary proceeding.

That was the city's argument: that any footage captured by police cameras could be withheld under these public records law exemptions. It actually claimed that dash cam footage was a "confidential personnel record." The court pointed out that all a camera does is capture footage of incidents and interactions. Even if used in disciplinary proceedings, the footage is not, in and of itself, a disciplinary record.

And yet the city continued to fight. It petitioned the state Supreme Court to depublish the lower court's decision so it couldn't be considered precedential. It wanted a standalone opinion that pertained to a single requested recording, not something that could be used to force it hand over more footage more often.

Maybe it's not fair to say Eureka hates its residents. Maybe it just thinks its law enforcement officers are more deserving of its effort and spent funds. But nothing about its fight suggests it's at all interested in either a better police force or a better relationship with the people paying for its opacity efforts. Government entities already have a plethora of exemptions available to keep info out of the hands of the public.

Claiming video of a public encounter involving a public servant is somehow a "confidential record" is completely asinine. Fortunately, the state Supreme Court has refused its petition, which will save taxpayers the expense of funding yet another attack on their own transparency interests.

Filed Under: california, confidential, eureka, foia, police, public records, recording

FBI Opens Internal Investigation Into One Of Its Own Twitter Accounts Because Good Lord This Year Is So Stupid

from the great-year-for-comas dept

There's nothing the FBI loves more than an investigation. It's right in the name. The on-again, off-again inspection of Hillary Clinton's emails have given director James Comey a chance to really strut his stuff. It's embarrassing stuff -- stuff his underlings wish he'd stop strutting, but there it is. The White House itself actually weighed in on Comey's latest blurt (which was followed shortly thereafter by tons of controlled leaking) and basically called him a loudmouth.

Because this election season couldn't get any weirder, a long-dormant FBI Twitter bot suddenly came to life and began spewing links to FBI documents about tangentially-related investigations -- like FBI files on the Clinton Foundation. This only raised more questions about the FBI's political leanings. Sure, the FBI has won over parties in both camps thanks to its investigation of Hillary Clinton, but it has infuriatingly chosen to periodically invert the narrative, leaving both parties unsure of how to feel about their new partner in electioneering.

The unexpected burst of activity suggested the FBI was again meddling with the electoral process. Not actually news, of course. The documents had been there all along, but the Twitterbot had failed to inform the public in a timely fashion. It was suppposed to send out a tweet any time the agency dumped something into its FOIA "reading room," but had failed to do so for months.

It was enough to suggest nefarious intent. Because the FBI is nothing if not well-funded, it will be taking a much closer look at its malfunctioning Twitter account. (via Slashdot)

Candice Will, Assistant Director for the FBI’s Office of Professional Responsibility, said she was referring the matter to the FBI’s Inspection Division for an “investigation.” Upon completion of the investigation, the findings will be referred back to the the Office of Professional Responsibility for “adjudication.”

There's a reason for this investigation -- one that will likely find nothing more damning than coding hiccups.

Federal law and FBI policy prohibit employees from using the power of the department to attempt to influence elections.

Odd. It would appear James Comey is unfamiliar with these laws and policies. The social media bot only does what it's told to do. And no one, apparently, is able to tell Comey what to do. Or not to do. But it's the pile of code that will be facing greater scrutiny than James "Rogue One" Comey.

A statement and a preliminary conclusion have already made their appearance. The statement issued by the FBI says that the Twitterbot, like everything else the FBI does (including unlawful deployment of malware), was totally lawful in its spectacularly-timed tweetstorm.

"Per the standard procedure for FOIA, these materials became available for release and were posted automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures,” the FBI said in a statement.

A more innocuous explanation for the ill-timed tweeting is this one:

An FBI official told Motherboard that the FBI Records Vault Twitter account had been dormant for more than a year because of a bug in the FBI.gov content management system (CMS) that links the website where the documents are posted and the social media account. On Sunday, according to the official, the FBI’s IT team pushed a patch to the CMS and fixed the bug, causing the flood of tweets, which had been scheduled over the last few months, to go out on October 30.

Whatever the explanation is, the FBI is pretty much a walking catastrophe at this point -- at least as far as maintaining distance from the electoral process is concerned.

Filed Under: fbi, foia, leaks, politics, releases, social media

ACLU Sues Government Over Unreleased FISA Court Opinions

from the make-with-the-secrets dept

The US government is still holding onto its opacity ideals while publicly touting transparency directives. The FISA court -- which presides over the NSA's surveillance programs -- has normally been completely shrouded in darkness. Things changed in 2013 after Ed Snowden began leaking documents.

Forced into a conversation about domestic surveillance, the administration responded with more transparency promises and the signing of the USA Freedom Act into law. The new law curtailed the collection of domestic business records (phone metadata and other third-party records) and required the court to make its opinions public following declassification reviews.

All well and good, but the government has apparently decided the new law only requires transparency going forward. FISA opinions dating back to 2001 still remain locked up, despite transparency promises and reform efforts.

The ACLU is now suing the government to force the release of over a decade's-worth of FISC opinions. Many of those still withheld contain rulings on issues that are the very definition of "public interest." The appendix to the motion [PDF] contains a list of opinions the ACLU would like to see released, including the following:

• The order authorizing Yahoo's bulk email scanning.
• Rulings on the FBI's use of NITs and other malware.
• Orders compelling "technical assistance" to weaken encryption or hand over code to the US government.
• Stingray deployments authorized by the FISA court.
• Possible First Amendment violations arising from the Section 215 program.
• A 2013 order detailing "unauthorized NSA surveillance."

The government would like these to remain secret, which is why it's interpreted the new law to only affect decisions reached after the implementation of the USA Freedom Act. But that runs counter to the whole point of surveillance reform and the administration's own transparency directives: to better inform the public about the government's actions. Transparency goes hand-in-hand with accountability and keeping these out of the public's hands does nothing to further either goal.

Filed Under: fisa court, fisc, foia, nsa, transparency
Companies: aclu

PINAC Director Sues Miami Beach Mayor Over Refusal To Release Social Media Blocklists

from the blocking-the-public-and-then-blocking-the-public dept

Executive director of Photography is Not a Crime (PINAC) Grant Stern is taking Miami Beach mayor Philip Levine to court over public records request denials. As Fusion's Ethan Chiel reports, the mayor has been busy blocking critics on both Twitter and Facebook, and Stern aims to find out just how many constituents the mayor is tuning out.

[T]he suit demands the release of 30 days of Levine’s tweets, the list of users blocked from commenting on his Facebook page, and records regarding Levine’s radio show. The suit seems to ask Florida’s Eleventh Judicial Court to decide what qualifies as official communication on social media by an elected official.

Stern has some personal experience with Mayor Levine. Facebook comments and tweeted responses by Stern have been deleted and/or met with blocks. The push to have the court issue an opinion on what is or isn't an "official communication" is also prompted by the mayor's actions (or the actions of whoever runs his official social media accounts). As Chiel notes, Stern's (swiftly deleted) Facebook comment requesting a month's-worth of Mayor Levine's tweets (after being blocked on Twitter) was greeted with a hasty rewrite of the mayor's social media account info.

At some point in the intervening period, the about section of Levine’s Facebook page and his Twitter bio were updated with a new disclaimer: “This page expresses the opinions and views of Mayor Levine and not those of the City of MB.”

This hasty rewrite appears to have led directly to the denial the city issued in response to Stern's request for social media blocklists:

Stern received a letter from Deputy City Attorney Aleksandr Boksner who said that the block list for the Facebook account was “not a public record that was made or received in the course of the official business of the City of Miami Beach,” and thus wouldn’t be produced.

Stern's lawsuit [PDF] argues to the contrary: Mayor Levine clearly uses both accounts for official city business.

Levine utilizes Facebook® to communicate the official acts and businesses of the City of Miami Beach to his constituents. Levine’s Facebook® account addresses him as a governmental official and that his current office is the mayor of Miami Beach, Florida. Levine’s account states that he is: “Making Miami Beach the city that works...for its people.”

After a cursory review of Levine’s Twitter® and Facebook®, there’s no question that Levine utilizes social media to communicate the City of Miami Beach’s official business. Levine’s communications include posts such as renaming a Miami Beach street after Muhammad Ali to informing residents of the Zika virus outbreak in the city.

The city has refused to comment on the lawsuit, but it's fairly clear it considers social media accounts off limits for public records requests. That decision may not stand up to judicial scrutiny, however, not even with the hasty appendage of "not the city of MB" wording. Other government agencies have turned over blocklists to requesters, and it's a bit disingenuous to claim a public account disseminating information of interest to constituents is not "public records" subject to Florida's public records laws.

Filed Under: foia, grant stern, miami beach, philip levine, public records, social media

Appeals Court Says Government Doesn't Have To Disclose Contents Of Its Secret Terrorist Organization List

from the terrorist-farm-teams-or-something dept

An attempt to force the government to reveal its secret list of terrorist groups has been shot down by the Seventh Circuit Court of Appeals [PDF]. The Heartland Alliance Immigrant Justice Center's FOIA request for "Tier III" terrorist groups can remain unfulfilled. [h/t Brad Heath]

Without giving too much away (and neither the court nor the government does), "Tier III" is apparently more nebulous and fluid than tiers I and II.

Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al‐Qaeda. Tier III organizations are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any group of two or more people that engages in terrorist activity (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their terrorist activity is conducted exclusively against regimes that are enemies of the United States. Tier III organizations tend to have a lower profile than Tier I’s or Tier II’s, not only because the government does not publish their names but also because they tend to be groups about which the U.S. government does not have good intelligence, making it essential that the Department be able to obtain information about them during screening interviews that are as focused and complete as possible.

The government withheld this info under FOIA 7(E), which covers "techniques and procedures for law enforcement investigations or prosecutions." As the government argued, divulging these "groups" of two or more possible terrorists would likely allow screened immigrants to hide their involvement in these groups.

[A]s explained in the government’s brief, “an alien who becomes aware that a particular organi‐zation has been found to fall within the definition of a Tier III organization will have a very strong incentive to falsify or misrepresent any and all encounters, activities, or associations that he or she may have had with that organization.” If the alien doesn’t know that a terrorist organization that he has belonged to, been affiliated with, or maybe simply has provided supplies or money to, has been identified by our government as a terrorist organization, he is likely to be less guarded in answering questions about his activities in or associations with the organization. But if he knows that the organization he belonged to or was associated with is deemed a terrorist organization, he is likely to deny having ever had any connection to it or even having ever heard of it.

The Justice Center pointed out that the government's fear of slippery foreigners might be overstated. After all, members of terrorist groups -- whether publicly acknowledged by the government or not -- would be just as likely to lie about their affiliation even if privy to the contents of the Tier III list.

The Appeals Court doesn't think much of the Justice Center's counterargument, positing that any interrogation predicated on the Center's assumptions would be a "dumb interrogation." In the eyes of the court, the government's secrets allow it to more gracefully handle questionings, allowing it to tease out affiliations detainees would otherwise be unwilling to disclose.

The court isn't much kinder to the Justice Center's speculations about the contents of the Tier III list.

We learn in the Center’s reply brief that its primary concern is not with names but with the Tier III category itself, for it says for example that “the designation of Tier III organizations is often doubtful.” It hopes that if it can obtain the names of all the organizations—its goal in this litigation—it will be able to discredit some or perhaps many of them. Deeply distrustful of the U.S. government, by the tone and content of its briefs the Center signals its disbelief that the government has secrets worth keeping from asylum seekers and their helpers (such as the Center), but it does not explain what the government would gain by pretending that harmless organizations are actually terrorist groups.

The court does give the government a bit more credit than it deserves. It's not so much that the government would try to gain something by designating harmless groups as terrorist organizations. It's that government agencies have shown a willingness in the past to designate political groups they don't like as enemies or criminals, subjecting them to unlawful surveillance and other rights violations.

The concurring opinion raises another concern -- one that the court finds bolsters the government's secrecy assertions, but one that could also be read as a call for more scrutiny of this particular list.

At oral argument, the government noted plausible foreign relations grounds for the government withholding this information under other FOIA exemptions. Specifically, it noted that U.S. government relations with Tier III organizations might change on short notice, and that revealing certain Tier III organizations might have foreign policy ramifications. What one day might be an allied Christian militia fighting against the Islamic State (ISIS) might the next day be our nation's enemy, and while not rising to the level of a Tier I or II organization, might fall under Tier III. All of this suggests that the government has, in our nation’s FOIA law, adequate alternative claims for exemption that it chose to avoid, so there is no need to broadly construe 7(E).

The unasked question is this: if alliances shift, does the government immediately release detainees affiliated with groups the government has arbitrarily decided are now the nation's allies? Or do they just sit around forgotten in detention centers while the government moves organization names on and off the list? Who knows. The opinion suggests this is a problem for Congress to solve -- either by scaling back the scope of the FOIA exemption or by actually using its oversight powers to periodically review the Tier III list.

Filed Under: doj, foia, terrorists, tier iii, watch list