New York State Keeps Government Emails Out Of The Public's Hands With Its 90-Day Retention Limit

from the shredders-and-burn-barrels-have-nothing-on-automation dept

New York Governor Andrew Cuomo's office continues to do everything it can to prevent its emails from being accessed by FOIL (Freedom of Information Law) requests. As Justin Elliott of ProPublica reported earlier this year, Cuomo's office has been making use of personal email accounts to skirt FOIL requests.

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.

I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

This isn't all Cuomo's office is doing, though. It's also set its email retention bar incredibly low. With personal email accounts already removing a certain percentage of communications from the "responsive document" set, the governor's office has moved towards eradicating access to the rest, using an unusually short retention schedule. ProPublica again has the story.

Last year, the state started deleting any emails more than 90 days old that users hadn't specifically saved — a much more aggressive stance than many other states. The policy shift was first reported by the Albany Times Union.

A previously unpublished memo outlining the policy raises new questions about the state's stated rationale for its deletions policy. What's more, the rules on which emails must be retained are bewilderingly complex – they fill 118 pages – leading to further concern that emails may not be saved at all.

The state's policy is supposedly predicated on storage limitations. But this was put into place as part of a move to Microsoft's Office365, which offers 50 Gb of storage per email user. And, as ProPublica points out, the state's version includes unlimited email archiving.

Despite the reality of the storage situation (i.e, that it's not going to ever be a problem), the state still automatically deletes emails when they hit the expiration date. When asked why the state does this when it's obvious it has plenty of email storage space, it delivered this nonsensical response.

The Office of Information and Technology Services declined to comment on the record. An official in the office said even though the state can store large quantities of email, it can still be difficult to manage.

"Just because you have a big house doesn't mean you have to shove stuff in it," the official said.

Yeah, but if this "big house" was actually purchased for you by the public to store stuff it might need later, the purchasers expect you to make full use of the storage space. What it doesn't expect is for you to throw out a large percentage of its belongings (government emails are public records) every 90 days. Policies vary from state to state, with most email being held for two years minimum. Certain categories are held onto for a longer period of time, but rarely, if ever, are government emails given a shorter "sell by" date than the state of New York.

Not everything disappears at 90 days. Some are supposed to be held onto for far longer, but as far as ProPublica can tell, there's no one in place to ensure the numerous and complex retention rules are followed.

There is no internal or external watchdog to make sure the rules are being followed, [John] Kaehny [president, Reinvent Albany] said.

The state also doesn't have a standardized system for preserving emails that do have to be saved, according to the Office of Information Technology Services official. State workers can save their emails by printing them out, pasting them into Microsoft Word documents or placing them in a special folder in the email program itself.

"Everyone does it differently, and some people are still learning how to do it," the official said.

Email related to FOIL requests and litigation is supposed to be preserved indefinitely. But with de facto 90-day destruction in place, journalists and others seeking public records would need to know what they're searching for before the corresponding emails have even been composed. Government misconduct is usually discovered months or years down the road. By that time, most responsive emails will have long since been destroyed, especially when there's no one making sure possibly incriminating communications are retained.

What's being touted as a solution to an email management problem looks an awful lot like an easy way to minimize the number of responsive documents that might be returned to a citizens' rights group or an investigative journalist. Ninety days isn't acceptable as a warranty period, much less a time frame for the retention of public records.

Filed Under: andrew cuomo, deleting emails, emails, foil, freedom of information, new york, transparency

DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts

from the seriously,-stop-being-assholes-about-this dept

With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.

City officials who conduct public business on personal email accounts must turn their personal emails over in response to a Freedom of Information Act request, according to a recent, first-of-its-kind ruling in D.C. Superior Court.

The July 9 order by Judge Stewart Nash brings the District into line with the majority of states that have addressed the issue, signaling an emerging trend in favor of government transparency—if not an end to efforts to work around disclosure laws.

The district's attorneys tried to argue that the neighborhood advisory commission's emails (at least those routed in and out of Commissioner Dianne Barnes' personal account) were exempt from FOIA requests because the account used wasn't a district-owned account, but the judge wasn't buying it.

"This argument requires the Court to ignore Ms. Barnes’s position as Commissioner of the ANC," the judge wrote. "To the extent that Ms. Barnes is acting in her capacity as Commissioner of the ANC, then communications made or received by her would be communications of the ANC, irrespective of whether such communications were associated with her personal e-mail account."

Public officials (like former New York City mayor Mike Bloomberg) have tried to keep certain communications out of the hands of the public by using personal devices and email accounts. To a certain extent, this has worked. But many states have established policies in order to close this loophole, basically stating that it doesn't matter where the communication originates but what the subject matter is.

As that view has been challenged, states have increasingly found that the content, not the ownership of the device or account, is the determining factor of whether a communication about public business is subject to FOIA disclosure laws, according to the peer-reviewed journal Communication Law and Policy.

Which is as it should be. The Freedom of Information law was created to help the public hold their representatives and public servants accountable, as well as to provide insight to the how and why of government activity. Routing around this by using personal devices cuts the public out of the loop. A government that often argues "nothing to hide" means "nothing to fear" certainly seems to be doing a lot of hiding, leading directly to people questioning what exactly it has to fear. Considering these are people in seats of power, these deliberate attempts to hide public communications is, at the very least, misconduct, if not actual cowardice.

Judge Nash's earlier verbal order for the district to turn over the requested emails was ignored. Now, it's in writing. Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.

Filed Under: emails, foia, freedom of information, government officials, personal email accounts, stewart nash, transparency

Florida State Attorney's Office Demands $180,000 To Release Records Pertaining To A Questionable Suicide

from the 180,000-reasons-she'll-never-see-these-records dept

With the advent of freedom of information laws came a series of guidelines meant to encourage government agencies to follow not just the letter, but the spirit of the law. There's always been a gap between the public and their public servants, and these open records laws have attempted to bridge that by giving people the power to demand transparency from government agencies. In theory, it's great. In practice, it's redactions, refusals and lawsuits.

One of the key aspects of these statutes is the limitation of fees charged by responding agencies. This is in place to prohibit agencies from discouraging requests by pricing the public out of the market. That fees should be charged at all is debatable, considering everything from the creation of the documents to the retrieval of requested information is already paid for with tax dollars. Nonetheless, agencies are warned against charging excessive fees to avoid creating a chilling effect that would inhibit further transparency.

Here's a plainly-worded version of this integral part of Florida's public records laws:

The Florida Statutes provide a schedule for copying fees. If no fee is set forth in the statutes, section 119.07(4)(a)1 of the Florida Statutes permits agencies to charge up to 15 cents per one-sided copy for paper copies that are 14 inches by 8 ½ inches or less and an additional 5 cents for two-sided copies. Agencies can also charge one dollar for certified copies of a public record. For other copies, the charge is limited to the cost of the material and supplies used.

A few exceptions exist where agencies may charge more than 15 cents. Among these are all court records, county maps, aerial photographs, and crash and homicide reports. An agency may not charge a sales tax when providing copies of public records.

Sometimes, the nature or the volume of the public records requested will require extensive use of the agency’s information technology resources or of the clerical or supervisory personnel assigned to make copies or safeguard records. In these instances, the law allows agencies to charge a service fee for the inspection and copying of public records. All service charges for inspecting public records must be REASONABLE.

Again, fantastic in theory but not so much in practice. (h/t to Techdirt reader Will)

[Angel] King has fought for nearly five years to learn more about her daughter's supposed suicide in Jacksonville Beach, which she strongly believes was not a suicide at all. She's repeatedly pressed Jacksonville Beach cops, prosecutors and medical examiners for more details about what she considers the suspicious circumstances surrounding her 24-year-old daughter's death.

Last week, she finally got what she's been waiting for from the State Attorney's Office after repeated requests — an email saying her records were available, and she can have them.

One little catch: The records would cost her $178,949.48.

It appears the State Attorney's Office has a very liberal translation of the word "reasonable." There's nothing reasonable about demanding $180,000 for the release of records related to a single investigation. There's no telling how many responsive documents the attorney's office is sitting on (which it won't even begin compiling until King submits an $89,475 down payment), but it's presumably smaller than the 840 pages turned over by the DHS to Scott Ainslie of MuckRock, which charged him $0 as the cost was "below the $14 minimum."

This doesn't sound like an agency trying to recover costs. It sounds like an agency that doesn't want to make certain documents public. King has several questions about the circumstances surrounding her daughter's death, but no one wants to answer them.

The eventual ruling of suicide was based on initial reports from a botched investigation by Jacksonville Beach Police Department officers, King and private investigators who have looked into the case allege.

Boykin somehow used the gun to shoot herself in the chest, though the maneuver would have required her to hold the pistol in a manner in which she had to use her thumb to pull the trigger, according to outside forensics experts King has consulted. And Boykin's body had obviously been moved from where she died, based on the location of blood splatters, they said. King says she has found no records to indicate that detectives informed the medical examiner of that detail until well after the case was closed.

If this were simply an exception, it wouldn't be as concerning. But other government agencies in Florida are charging excessive fees for the retrieval of public records.

Barbara Petersen of the Florida First Amendment Foundation sought one week's worth of email from the governor's Communication Director. The governor's office charged her $780 and took months to respond. Other agencies Petersen contacted charged as little as $10 for two weeks of email, while also responding more quickly. The governor's office claimed the increased cost was due to many of the governor's staff using personal email to conduct state business (another cause for alarm), resulting in a $70/hr. charge being applied to search non-government accounts.

More recently, a judge determined that a county clerk overcharged a reporter when he asked for $556 to produce 556 pages of electronic documents. The final cost to the reporter after the court case? $2 for a CD containing the requested information.

The Citizens Awareness Foundation of Florida asked for similar documents from every school district in the state (a list of law enforcement agencies that provide school resource officers and details of any settlement agreements the schools had entered into) and were given a wide variety of responses. Some turned over the documents at no cost, but others quoted prices of $700-$8,000 to fulfill the request, with the fees being demanded up front before compiling of responsive documents would begin.

Now, some of the above may not be malicious attempts to keep requesters separated from the information they're seeking. Some of these cases may just be misreading of the statutes or government employees acting on a minimum of training. But others are clearly designed to discourage the request of public records.

In King's case, the $180,000 asked only makes sense if a) there's a ton of internal communication (which would suggest a very questionable investigation) or b) the DA's office would rather not have responsive documents made public (which suggests the very same thing).

The office has tried to justify the estimate:

[A]ssistant state attorney Brittany O'Neil, of the office's public records division, said the estimate was based on numerous factors, including attorneys' hours for reviewing documents, clerical work to collect it, redactions to some of the documents, making copies and numerous other tasks that would be needed to meet her request.

"Numerous other tasks" is certainly vague enough. The "attorneys' hours" sounds expensive, but doesn't necessarily have to be. The same letter that explains the reasonable fees provision says the following:

A higher rate may be charged for requests that involve complex documents containing various exempt or confidential information. Usually this will involve documents that have to be reviewed by an attorney or paralegal with the knowledge necessary to make decisions with respect to potential exemptions. For example, a circuit court judge approved a rate of thirty-five dollars per hour in a case where the agency attorney had reviewed exempt material in a voluminous criminal case file.

Even 1,000 hours of agency attorney time would only add up to $35,000. It doesn't appear as though judges are willing to approve excessive hourly costs. In fact, most hourly rates are supposed to be calculated at a state employee base rate, rather than the actual hourly wage of the employee doing the work.

King has spent $2,000 so far obtaining records from the state attorney's office, and a spokesperson said they've been "responsive" to everything she's requested. King's latest is a "blanket request," seeking everything the office has on her daughter's death.

"She has put in several requests and this is the latest request," Barnard says. "She has had complete access to what she wanted. We have responded to every request — whether we could fulfill it, or if we didn't have the records, or when we needed more information from her about what records she was requesting."

This defense of its actions is actually an admission that the office is still sitting on a ton of responsive documents. If it wasn't, the response would have indicated there was nothing further to be released that hadn't already been requested. And the presence of tons of documents for a supposed open-and-shut "suicide" doesn't exactly instill confidence that the office's decision to close the case was correct.

Filed Under: costs, florida, freedom of information

CIA Sent FBI Agents After, Ended Career Of 19-Year Employee Over A FOIA Request For Historical Documents

from the open-and-transparent-retaliation dept

It wasn't even whistleblowing, although that too can destroy careers and lives. It was a FOIA request, made by someone who knew exactly which documents he wanted released.

His CIA career included assignments in Africa, Afghanistan and Iraq, but the most perilous posting for Jeffrey Scudder turned out to be a two-year stint in a sleepy office that looks after the agency’s historical files.

It was there that Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.

To get them released, Scudder submitted a request under the Freedom of Information Act — a step that any citizen can take, but one that is highly unusual for a CIA employee. Four years later, the CIA has released some of those articles and withheld others. It also has forced Scudder out.

"Historical documents of long-dormant conflicts and operations." Scudder dared to ask for these documents, and the CIA cut him loose. It also sent another federal agency after him -- the FBI.

On Nov. 27, 2012, a stream of black cars pulled up in front of Scudder’s home in Ashburn, Va., at 6 a.m. FBI agents seized every computer in the house, including a laptop his daughter had brought home from college for Thanksgiving. They took cellphones, storage devices, DVDs, a Nintendo Game Boy and a journal kept by his wife, a physical therapist in the Loudoun County Schools.

To date, only his daughter has received her laptop back. Every other computer remains in the hands of the FBI, despite the fact that no charges were ever pressed and despite the fact that many of the documents Scudder asked for have been released by the CIA in the interim. More from his request list are due to be released in the near future.

The CIA avails itself of a wide array of FOIA exemptions, but its reluctance to publish historical documents is just baffling -- and is most likely a result of the agency's long-running adversarial relationship with transparency. It's been noted here before that the CIA has used the often-abused b(5) exemption to withhold documents over five decades old (dealing with the Bay of Pigs invasion), claiming that the release of the "sensitive" documents would "confuse the public."

Despite Scudder's efforts, the flow of historical CIA documents will only decrease in the future. The office charged with declassifying historical documents has been closed, deemed expendable by the agency in the face of budget cuts. This workload will be routed through the agency's FOIA office, creating even more incentive for the CIA to stonewall requests.

Scudder never did anything his superiors thought was wrong until after he attempted to free these historical documents. Everything the agency never took issue with during his previous 18 years of employment -- like personal call infractions and the possession of photos (taken by Scudder in his position as "official CIA photographer") deemed "classified" -- was suddenly yet another reason to force him out. It's been clear for a long time that the government doesn't care much for whistleblowers. It also seems to have something against transparency, even concerning documents of historical interest only.

Scudder did nothing criminal. He just did something the agency didn't like. And for that, he lost his job and clearance. So, it's not just whistleblowing that can get you destroyed. It's also holding the government to its own transparency standards -- something that isn't remotely criminal but is apparently completely unforgivable.

Filed Under: cia, classified info, fbi, foia, freedom of information, jeffrey scudder, whistleblowing

Massachusetts SWAT Teams Claim They're Private Corporations To Get Out Of Transparency Requests

from the sell-swords dept

I'm no conspiracy theorist, generally speaking, but I have to admit the apparent systematic militarization of domestic police forces throughout the country scares the hell out of me. You've seen it, too. Officers, once clad in powder blue uniforms, are suddenly dressed in blues that are so dark they might as well be black. Small-town police forces are gobbling up military-style equipment for god-knows-why. Regulatory agencies are sending out armed forces to rescue wildlife. Whatever your politics, it's pretty clear that there is some kind of imbalance on display here.

The good news, however, is that these are public servants we're talking about here, so they're subject to a certain degree of transparency and information requests from John Q Public. Right? Right!?! Wrong, at least according to SWAT teams in Massachusetts, which are bizarrely claiming protection from such requests due to Massachusetts SWAT teams now being part of a private corporation.

As part of the American Civil Liberties Union's recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response. As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments...Some of these LECs have also apparently incorporated as 501(c)(3) organizations. And it’s here that we run into problems. According to the ACLU, the LECs are claiming that the 501(c)(3) status means that they're private corporations, not government agencies. And therefore, they say they're immune from open records requests.

Yes sir, law enforcement just went private. It makes no sense, of course, because these LECs are in charge of oversight for local law enforcement agencies, LEC employee lists include all manner of public servants, and LEC SWAT teams are used to conduct raids on the citizenry. All of this is funded, by the way, with public money. Our money. That this money is funneled in from the public coffers of local police agencies doesn't make a lick of difference. The argument is essentially that if an LEC uses our money to set up its own oversight authority and then slapps a 501(c)(3) label on it, it no longer has to respond to public records laws. And, per the ACLU, this ain't some small-time problem we're discussing here.

Approximately 240 of the 351 police departments in Massachusetts belong to an LEC. While set up as “corporations,” LECs are funded by local and federal taxpayer money, are composed exclusively of public police officers and sheriffs, and carry out traditional law enforcement functions through specialized units such as SWAT teams. Police departments and regional SWAT teams are public institutions, working with public money, meant to protect and serve the public's interest. If these institutions do not maintain and make public comprehensive and comprehensible documents pertaining to their operations and tactics, the people cannot judge whether officials are acting appropriately or make needed policy changes when problems arise.

Which, of course, is the entire point. They're hiding from public scrutiny behind the veil of incorporation, which may rank right up there among the most cynical things a government organization has ever done. It's a move one might find in the corporate republic of some dystopian novel. I say that because it's truly not as though the police departments in question are attempting to claim some kind of exemption within public records law. They're just putting up a stone wall.

“You can’t have it both ways,” Jessie Rossman, a staff attorney for the Massachusetts ACLU, told me in a phone interview. “The same government authority that allows them to carry weapons, make arrests, and break down the doors of Massachusetts residents during dangerous raids also makes them a government agency that is subject to the open records law. “They didn’t even attempt to claim an exception,” Rossman says. “They’re simply asserting that they’re private corporations.”

Now, the ACLU is suing, claiming that these LECs have received both local and federal funding from government tax coffers, but others are suggesting this attempt to claim privatization is not without its pitfalls for those same law enforcement organizations. Pretending to be a private corporation to avoid freedom of information requests is one thing, but wouldn't that also mean giving up other things as well?

The claim by the Massachusetts LECs in response to the ACLU's demand under Freedom of Information laws is a cute attempt to twist corporate law with public authority law, but it is sheer, unadulterated nonsense. They can be one or the other. They cannot, by definition, be both.

The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he’s right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He stripped himself of immunity, as well as authority.

You can already hear the tortured back peddling that would be on display should such a situation arise, can't you? But that's just trying to get some fun out of what is clearly a claim by public institutions that cannot be allowed to stand. Allowing this move to be successful would only open the door to every other public institution that desired private oversight status to employ the same technique, the result of which would be public tax money propping up an officially private corporate government in which transparency is granted at that same corporate government's pleasure and never otherwise. It's the germination of an unholy mixture of corporatocracy and fascism and it would be the undoing of the very concept of the American government.

Filed Under: freedom of information, law enforcement councils, lecs, massachusetts, militarized police, swat teams, transparency
Companies: aclu

CIA Hit With Two New Lawsuits Over Its Hostile Response To Basic FOIA Requests

from the secret-agencies-don't-like-transparency dept

I guess it's no surprise that the CIA would be institutionally against things like transparency and freedom of information. However, in the last couple weeks there have been two separate lawsuits filed by well known Freedom of Information Act (FOIA) activists over the CIA's general bad behavior in response to FOIA requests. First up is Michael Morisy and Muckrock, who have sued over a variety of failures by the CIA to adequately respond to a long list of FOIA requests that really should not be problematic at all.

...the Central Intelligence Agency has a track record of holding itself apart from, and largely above, the Freedom of Information Act, consistently ignoring deadlines, refusing to work with requesters, and capriciously rejecting even routine requests for what should be clearly public information.

After listing out all of the FOIA requests that the CIA failed on that Muckrock is suing over, Morisy notes:

Additionally, we are suing against the CIA's general practice of rejecting requests for email records which do not include the time frame, subject, and to and from fields, regardless of what other information is including to help narrow the request. This practice replaces the required functional test for whether or not a request reasonably describes the records sought with a per se test that automatically rejects any request for email records based on whether or not it includes all four pieces of information, virtually ensuring that vast amounts of CIA email records go unprocessed and unreleased.

Separately, two FOIA ninjas, Ryan Shapiro and Jason Leopold (both of whom have written about before, including the FBI declaring Shapiro a systematic problem for filing too many FOIA requests) have sued the CIA as well for its failure to respond to their FOIA requests concerning the CIA's spying on the Senate Intelligence staffers investigating the CIA's torture program.

"It's time for the CIA and the rest of the US intelligence community to recognize transparency not as a threat, but rather as an essential component of viable democracy," Shapiro said.

The FOIA request specifically was about communications between the Senate Intelligence Committee and the CIA which set up the terms under which the Senate investigators would have access to CIA documents, among other related documents. As with Muckrock, it appears that the CIA basically has just decided to ignore the request entirely.

Yes, the CIA lives in a world of secrecy, but it's supposed to follow the law, and that includes living under FOIA transparency rules. It seems to be ignoring those at every turn, so hopefully these two lawsuits will begin to force the CIA to actually obey the law.

Filed Under: cia, foia, freedom of information, secrecy

The NYPD Apparently Doesn't Have Any Rules Governing Its In-House Classification Of Documents

from the a-secret-interpretation-of-a-'SECRET'-stamp? dept

The NYPD's internal classification system -- designated primarily by the stamping of the word "SECRET" across documents -- has nothing behind it. No rules, no guidelines, no explanations. This makes the NYPD a unique specimen among law enforcement agencies. It is the only one in the country that proactively designates documents as not for the public's eyes, something it has been doing for nearly a decade at this point.

This likely has something to do with having a former CIA agent running the Intelligence Division. To a man like David Cohen, who spent 35 years in the agency, classifying documents just makes sense -- even if no other law enforcement agency is doing it. And even if there's really no legal weight behind the NYPD's completely-made-up "SECRET" designation.

That was the speculation last fall when this in-house "SECRET" designation was first discussed at the Huffington Post. Now, it's basically been confirmed that the classification means whatever the person applying the designation thinks it means... at the precise moment the stamp hits the page.

In a response sent in late May to HuffPost's public records request, the police department said it could find no guidelines for its mysterious "NYPD Secret" marking, which appears on many of the records connected to its Muslim surveillance program.

The Huffington Post also asked the NYPD to say how many of its records are actually classified "NYPD Secret," and whether the mark prevents documents from being released under the state Freedom of Information Law. The response to all the queries was the same: The department was "unable to locate records responsive to your request based on the information provided."

This response is the NYPD's Glomar: it can't even be bothered to "neither confirm nor deny." Instead, as it has done with everything from requests for specific documents (requested by document number) to its own FOIL (Freedom of Information Law) handbook, it simply tells the requester that the documents don't exist.

The NYPD may have some actual classification guidelines, but there's no way anyone's accessing them without getting a court involved. Piercing this veil is such a heinous exercise in expense and futility that journalists have stated they prefer dealing with the FBI and the CIA.

But as it stands now, the "SECRET" designation has no legal weight and nothing that indicates it's not being used in a purely arbitrary fashion. As Matt Sledge at the Huffington Post notes, new police chief Bill Bratton said the NYPD should have "no secrets" under his command. Thanks to the supposed lack of responsive documents (and the lack of comments from the unresponsive department press office), the Intelligence Division is giving every impression that it took Bratton's proclamation to mean "no secrets from this point forward" or "no additional secrets," rather than a very heavy hint that the NYPD should start edging towards transparency.

Filed Under: classification, foia, freedom of information, nypd, secrecy, transparency

FOIA Request On Effectiveness Of License Plate Readers Greeted With A Blank Stare By Virginia Police Department

from the I'm-not-familiar-with-the-sort-of-thing-you're-asking-for dept

Law enforcement agencies are generally pretty happy with their automatic license plate readers. It allows them to harvest millions of plate/location records without having to exit their vehicles, much less slow them down. It also allows them to spring from their cruisers with guns out and force non-car thieves into submissive positions while they perform the sort of due diligence that should have been completed long before the cops/guns exited their respective holders.

What they don't seem to like is anyone asking questions about the massive databases they're compiling or whether they've bothered to institute any minimization/privacy policies. When questioned, they usually talk about what a great tool it is for crime-fighting, even if said tool contains millions of useless photos entirely unrelated to criminal activity. Some even claim that every single photo in the database is integral to ongoing investigations and therefore cannot be subjected to minimization procedures, much less the pesky FOIA requests of surveilled citizens.

And sometimes, these agencies are so sure they like the tech that they can't even be bothered to determine whether it's actually doing anything to assist in the business of law enforcement. Stephen Gutowski at the Capitol City Project recently asked the Fairfax County, VA police about the effectiveness of its license plate photo database and got this 'FILE NOT FOUND' statement in response.

This letter is in response to your FOIA request in which you requested the number of ALPR records Fairfax County currently has on file. This number is constantly fluctuating, but as of 05/20/2014 at 1003 hours there were 2,731,429 reads in the system.

You further requested any available metric the county uses to determine the system's effectiveness. It was found that the Fairfax County Police Department does not possess any such responsive materials based on the information you requested.

The assumption here is that the system works. The Fairfax County PD occasionally posts arrests linked to ALPR database hits and… well, beyond that, the PD draws a blank. Presumably a handful of arrests justifies a multi-million image-and-location photo database. But this lack of self-assessment shouldn't be acceptable, not for an agency that has abused its technology in the past.

It came to light late last year that the Fairfax PD trolled political rallies to grab more plate data, racking up nearly 70,000 photos in five days. This abuse prompted a local lawmaker to push legislation aimed at severely limiting, if not completely eradicating, ALPR readers in his district. Not a bad idea, as far it goes.

Virginia law enforcement agencies aren't going to be happy with this move and they'll be able to mobilize a pretty powerful opposition. But these are the same entities that tried to bury info on plate readers back in 2009, simply because they felt the public might try to get the system shut down if they knew what was going on. But the lack of controls or any gauge of the system's effectiveness shouldn't be allowed to escape unnoticed, because the failure to monitor error rates and hits can result in catastrophic consequences for citizens whose plates trigger false hits -- something this system does at twice the rate of recoveries.

The license plate readers demonstrated a high error rate. Four ALPR vehicles used in Fairfax County over the course of five nights in February 2009 scanned 69,281 vehicles. The camera database produced twelve bogus hits and recovered four stolen vehicles, for a recovery rate of 0.6 percent and an error rate of 1.7 percent.

The technology can be used responsibly, but law enforcement agencies with tough minimization policies are almost nonexistent. And as we've seen twice in the last month alone, officers relying on faulty data aren't making an effort to verify database hits before attempting to effect arrests. Someone's going to be hurt or killed because of bad data, and hardly anyone in law enforcement seems to be concerned. If they did, strict policies on verification and disposal of non-hit data would be the rule, rather than the exception.

Filed Under: alpr, foia, freedom of information, license plate readers, license plates, police, virginia

Court To Government On Attempt To Bury Drone Memo: You'd Have A Case If You'd Bother To Shut Your Mouth Once In Awhile

from the government-loosens-lips,-sinks-own-ships dept

We've discussed the contents of the DOJ's memo detailing its justifications for the extrajudicial killing of American citizens (being mainly that the Authorization for Use of Military Force, which was rushed into existence three days after the 9/11 attacks, says it can). Now, let's take a look at the ruling that finally pushed this long-withheld document into public view.

The court's decision recounts the long history of the embattled document, including the many attempts made by government agencies to bury the memo. But it appears that most of the reasons why the court decided to clear the (somewhat redacted) memo for release were provided by the government itself, which mooted many of its exemption claims with various statements made to the public.

In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."

What follows this paragraph is two pages of quotes by government officials, including Eric Holder, making public statements about how fully legal and justified the strike on al-Awlaki was. As the court notes, these assertions give a pretty good indication about the contents of the drone memo.

Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated.

The court also explains how the close relationship between a DOJ white paper on drone strikes and the still-unseen OLC-DOD memo further weakens its claimed FOIA exemptions.

Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC-DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret...

After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC-DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

From there, the court takes a swipe at the paranoiac assertions of the Office of Legal Counsel, assertions that seem to infer its clientele is largely comprised of idiots who fail to understand the public records process.

In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur…

Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.

The government also claimed certain other information needed to be withheld, presumably because of the standard terrorism fears. But once again, the information it claims can't safely be made public was made public by government officials time and time again.

One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen.

Again, this is followed by more than a full page of statements by government officials, including the President himself, talking up the great help the Yemeni government was during the hunt for al-Awlaki. The second concern, again undercut by government officials' statements, was the identity of the agency that worked with the Defense Department to eliminate the target.

The other fact within the legal reasoning portion of the OLC-DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency’s identity. The argument comes too late.

Undercutting the government's own arguments here are people like (then) CIA director Leon Panetta and Mike Rogers, head of the House Select Committee on Intelligence. James Clapper himself also confirmed this fact during a televised hearing.

As for the common "sources and methods" claims, the court doesn't think much of these either.

We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government...

With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.”

The government desperately wanted to keep this memo a secret, but couldn't help repeatedly discussing aspects of it publicly. If these officials believed its extrajudicial killings were on firm legal ground, then they could only be helped by releasing the rationale behind them. And if other officials were so concerned about "sources and methods," why couldn't they restrain themselves from congratulating the Yemeni government and bragging about the CIA's role in drone strikes? Maybe this is the transparency so often touted by the administration, albeit one comprised mostly of inadvertent revelations and self-serving statements.

Filed Under: classification, doj, drones, eric holder, foia, freedom of information, secrecy

Judge Tells ACLU It Can't Make The US Government Give Back The Stingray Records It Removed From A Florida Police Department

from the not-even-a-wrist-slap dept

The federal government doesn't want local law enforcement agents turning over cell tower spoofer documents. It has spent a great deal of time behind the scenes advising the agencies to withhold information from requesters, citing "security" and the fear of disclosing "methods" in defense of its actions.

In Sarasota, FL, it took a more overt route, sending US Marshals to seize responsive Stingray documents from the local police department. This time, it claimed it had "deputized" a department detective, making him part of a regional task force. As such, the records now "belonged" to the US Marshals Service and could not be turned over to the ACLU.

The ACLU responded to by filing an emergency injunction seeking to prevent US Marshals from confiscating any more SPD documents, as well as asking it to find that local law enforcement violated Freedom of Information law by handing over requested documents to the federal government.

The judge has now ruled on this motion, and almost everything about it is bad. In his decision, Judge Charles Williams found that his court had no jurisdiction over the federal agency and dismissed the case. But other concerns went unaddressed.

When Sarasota Circuit Judge Charles E. Williams issued his order dismissing the lawsuit, there was nothing about this act by the federal government to essentially abscond with documents to prevent them from potentially becoming public. In fact, the judge did not hold an appropriate hearing on the evidence, even though [Michael] Barfield [ACLU of Florida] had wanted one to resolve key issues.

The ACLU is also “mystified” because Williams included in his latest order a statement that suggests the ACLU did not “challenge as a matter of fact to the representation of the United States government as to the status of Detective Jackson.”

Williams did order the government to turn over Stingray-related applications and orders that have already been filed under seal, but did not offer to lift that seal, meaning the ACLU will be returning to court to attempt to unseal the documents. But this doesn't mean Sarasota's Stingray documents will make their way into the public domain anytime soon.

[A]ccording to Barfield, the federal government “may not comply with the order. They did not seem to think the judge could order them to do anything and even implied they could “remove the case to federal court.”

Once again, we have to ask what's in these documents. The federal government is obviously going above and beyond to ensure the information stays out of the public's hands. Maybe it's just the government's collective paranoia over "means and methods" of surveillance. Or maybe it's something more egregious, like the 200+ times Tallahassee (FL) police deployed Stingray devices without a warrant. Either way, it sends a strong signal to the constituents that the only real right they have is the right to be surveilled.

Filed Under: foia, freedom of information, mobile phone spoofing, sarasota, spoofing, stingray, us marshals
Companies: aclu, harris