Maryland Court System Arbitrarily Decides Public Should No Longer Have Access To Police Officers' Names

from the reverse-regulatory-capture dept

Supposedly completely of its own volition, Maryland's court system has decided to extend extra rights to law enforcement officers. Going to bat for opacity, the Maryland Judiciary has made it harder for the public to find out what officers are doing (or how often they're being sued). This comes against a backdrop where more sunlight would seem essential, what with several Baltimore police officers facing corruption charges in a wide-ranging investigation that has already netted a handful of convictions and guilty pleas.

Citing a favorite cop excuse, the state's courts have decided the public should be less informed.

Maryland’s Judiciary on Friday defended a decision to remove the names of police officers and other law enforcement authorities from the state’s searchable public online court database, saying the change was made in response to “safety concerns raised by law enforcement.”

The change took effect Thursday, following a decision by a judicial rules committee last June. Officers’ names no longer appear on cases they were involved with, and searches using an officer’s name cannot be performed.

The Judiciary claims this "balances" public access to court information with its "obligation" to protect officers from "potential misuse." It did not cite any actual misuse in defense of its position. Nor did it cite any support from law enforcement agencies or "safety concerns" raised by them. While the Anne Arundel County police admitted to lobbying for a change, all the department had asked for was the removal of first names, not removal of officers' names entirely.

Multiple law enforcement agencies contacted by The Baltimore Sun expressed their concern with the Judiciary's decision.

[T]he Maryland State Police said they had not lobbied for such a change, and the [Baltimore] Police Department said they did not agree with it.

A spokesman for Gov. Larry Hogan said: “Public information should be public. End of story.”

[...]

Baltimore police said they didn’t lobby for a change and “really don’t see why they got rid of what was already publicly available.”

“We use it too,” chief spokesman T.J. Smith said of the data.

Even more bizarrely, the Judiciary claims this removal only affects "remote access." Supposedly the names of officers can still be accessed by using local court kiosks. This makes no sense. Why would cops be "safer" if their names can only be accessed inside a local court? Wouldn't that make these (apparently imaginary) threats to officer safety much more proximate to the officers affected?

Beyond that, there's the fact that kiosk access is limited. Or, in the case of the Baltimore Circuit Court, kiosks are nonexistent. According to the Sun, the Baltimore court runs searches through an "archaic" computer system (not a kiosk) that does not provide the same search options as its online counterpart.

Local public defenders were unaware officer information was being removed, which seems to be a key oversight in the process. Public defenders are very much a part of the judicial process, yet they were never informed information they need on a daily basis would no longer be available. Already overworked, public defenders will now be forced to visit courts to access officer information and hope that court has kiosks that actually provide the search functions they need.

The Judiciary claims all of this was done in the open and with the consultation of stakeholders. This can't possibly be true since both law enforcement agencies and defense lawyers were apparently unaware of the change until The Baltimore Sun contacted them. The Judiciary's own paper trail suggests this was done under the radar with zero public debate about the rules change.

The committee’s annual report from last year shows that the change was made by eliminating a clause in the section “Access to Judicial Records,” which said, “Unless shielded by a protective order, the name, office address, office telephone number and office e-mail address, if any, relating to law enforcement officers, other public officials or employees acting in their official capacity, and expert witnesses, may be remotely accessible.”

It was unclear whether the change was debated — the rules committee has not posted minutes of its meetings since April 2016.

No one agrees with the Judiciary's change, which is probably why no one was consulted before the change was made. Everyone from city council members to state's attorney candidates to journalists find the change unwarranted, unhelpful, and a serious blow to trust-building efforts between law enforcement agencies and the communities they serve.

This unpopular move from the state judiciary suggests its members will show plenty of deference to law enforcement agencies and officers in the future. And it will continue to do so even when there's plenty of evidence out there showing officers are often untrustworthy, when not completely corrupt. It has a single reason for making this move -- officer safety -- but there's nothing in the judiciary's past that even suggests court records are being used to target police officers. Even local police departments release the names of officers involved in shootings and cases involving apparent excessive force. The Judiciary has decided to roll back transparency at the worst possible time, giving cops extra privileges they weren't even asking for and further damaging the public's trust in their public servants.

Filed Under: law enforcement, maryland, police, secrecy, transparency

Nevada Supreme Court Overturns Lower Court's Abysmal Ruling On Las Vegas Shooting Coroner's Reports

from the your-decision-is-bad-and-you-should-feel-bad dept

Prior restraint gets another thumping in court following a truly lousy injunction issued against a Las Vegas newspaper. The Las Vegas Review-Journal requested autopsy reports on victims of the Las Vegas shooting that left 58 dead. The coroner's office refused and was sued by the newspaper. The judge ruled the paper had a right to access copies of the reports after they were stripped of identifying info.

All went according to the First Amendment until a family of one of the victims went to court seeking to prevent the publication of Las Vegas police officer Charleston Hartfield's report. The family argued the report was "confidential" and not subject to disclosure under Nevada's public record laws.

This led to a bizarre ruling by the Las Vegas court. First, the court decided there was "no public interest" in the publication of the reports, which was obviously not true. Then it decided just to block the publication of Hartfield's autopsy. Given the fact the reports were stripped of identifying info before the paper received them, the Las Vegas Review-Journal had no way of knowing which report belonged to the Las Vegas cop. No problem, said the court, we'll just send the government and the suing family into your offices to retrieve it.

The district court dismissed the Review-Journal's concern that, because the autopsy reports were anonymized and redacted, it could not identify which report was Mr. Hartfield's. As a solution, it directed the Review-Journal to allow the Coroner and the Hartfield Parties to inspect the reports at the Review-Journal's offices, so that Mr. Hartfield's autopsy report could be identified and all copies of it returned or destroyed.

In short, the court said the paper's offices could be raided to take a single document from a batch of coroner's reports out of public circulation. The paper filed an emergency petition with the Nevada Supreme Court, asking WTF is this.

The Supreme Court has delivered its ruling [PDF], undoing all the stupid, rights-infringing orders issued by the lower court. The following summary comes from Marc Randazza, who represented the paper (and the Associated Press) in this case.

The Nevada Supreme Court agreed with the RJ [Review-Journal] and AP, finding that the district court’s order was an unconstitutional prior restraint. It found that the order prevented a news agency from reporting on a matter of significant public concern, and thus there had to be a compelling reason to censor the RJ and AP, and the injunction had to be the least restrictive means of accomplishing it.

The Court found that, even if the victim’s family had a privacy interest in preventing dissemination of the autopsy report, the RJ and AP obtained the redacted report pursuant to a valid court order, and several other media outlets had already reported on it. While the RJ and AP may have been prevented from disseminating the autopsy report, they and others had already done so. Since the cat was out of the bag by the time the victim’s family sued, there was not a strong privacy interest in play. And since the district court’s injunction only restrained the RJ and AP’s reporting, it clearly did not do a good job of protecting any privacy interests. The Supreme Court thus vacated the district court’s order, meaning the RJ and AP are free to continue reporting on this issue of significant public concern.

The Nevada Supreme Court makes it clear the lower court screwed this one up.

The district court's order enjoining the Review-Journal from reporting on the anonymized, redacted autopsy report it obtained from the Coroner pursuant to the order in the NPRA case constitutes an invalid prior restraint that violates the First Amendment.

This is something the Supreme Court of the United States has "roundly rejected," as anyone who's done nothing more than watch "The Big Lebowski" can attest. Furthermore, the target of any litigation following an alleged privacy violation of this type should be the government office that released the files, not the newspaper that obtained the records via a valid court order.

The Hartfield Parties see it as unfair to hold the Review-Journal's possession of the redacted autopsy reports against them because they were not parties to and did not know about the NPRA case until the judge in that case ordered the reports produced. Mandatory Supreme Court precedent teaches, however, that where the press obtains private information from the state—even where the state should have protected the information—damages or criminal punishment may not be imposed for its subsequent publication, absent extraordinary circumstances.

It goes on to point out that violating RJ and AP's Constitutional rights doesn't undo the privacy violation alleged by the Hartfields. Two wrongs don't make a right, especially when other news agencies had also published the same documents but weren't targeted by the Hartfields in their lawsuit.

While the district court directed the Coroner to write letters advising other news organizations of its order, its order only restrained the Review-Journal and the Associated Press, requiring them to destroy or return Mr. Hartfield's redacted autopsy report and enjoining them from reporting on it. Leaving other news organizations free to report on Mr. Hartfield's redacted autopsy report while restraining the ReviewJournal and the Associated Press from doing so does not accomplish the stated goal of protecting the Hartfield Parties' privacy interests.

[...]

Because the anonymized and redacted autopsy reports were already in the public domain, "[t] he harm that could have been prevented by the prior restraint has already occurred, and, because this harm has occurred, the heavy presumption against the constitutionality of a prior restraint has not been overcome." Bryant, 94 P.3d at 642 (Bender, J., dissenting). In other words, any damage to the Hartfields' privacy interests had already been done and the district court's subsequent order could not remedy that damage.

It's not that the government can't engage in prior restraint. It can, but only under very extreme circumstances. The plaintiffs have to reach a very high bar to obtain this and the Hartfields' case -- given the fact that the documents were obtained lawfully and were already widely-disseminated -- doesn't even come close.

Filed Under: coroner's report, foia, free speech, nevada, prior restraint, transparency
Companies: las vegas review-journal

LAPD Finally Starts Fixing Its Awful Body Camera Policy, But It's Not All Good News

from the chipping-away-at-opacity dept

It appears the city of Los Angeles is finally going to revise its terrible police body camera policy. Nearly $60 million was spent outfitting officers with cameras, but the end result provided little value to taxpayers. As it stands now, the only way to access footage is to engage in civil litigation with the police department (over violated rights, not rejected records requests) or be a defendant in a criminal case. Even then, a judge still has to be convinced you have a right to see the footage, even if you're one of the subjects.

The proposed law change would flip the situation entirely around, putting the burden on law enforcement to show why footage should remain out of public view.

Under the proposal drafted by Richard Tefank, executive director of the Police Commission, video shot during critical incidents -- which includes shootings, in-custody deaths and other major events -- would be released within 45 days. The new policy would apply to body cameras, in-car video, police facility surveillance video, drones and video, in the department's possession, that was captured by third parties.

That very last bit is concerning as it gives police control of third-party footage, which will incentivize the seizure of bystanders' phones and nearby businesses' surveillance video. This might work if law enforcement only makes copies of this footage, leaving third parties free to release their footage whenever they want.

But it would definitely dial back the restraints on police-generated footage. It creates a presumption of release that must face review every 14 days if law enforcement agencies wish to continue withholding footage. Unfortunately, this process will still be mostly an inside job. Review of requested delays will fall on the police chief and two selected commissioners from the LAPD's Board of Police Commissioners. While the Board is composed of five "civilian" commissioners, its independent power will be somewhat weakened by its limited presence during footage release reviews.

The single bright note in all of this is that it appears the Board is generally responsive to citizens' concerns and complaints. According to the NBC Los Angeles story, this small step towards openness was prompted by public input on body-worn camera policies.

The commission last year retained the Policing Project at New York University School of Law to gather public input into a new policy regarding the release of body-worn camera video. According to a report it released last September, a majority of members of the general public who responded to a Policing Project survey said video shot during critical incidents should be made publicly within a short period of time.

It's not as good as it could be. And the land grab on third-party video hopefully only limits the release of copies maintained by the LAPD. While it would be all but impossible to make the current situation worse, the hesitant step in right direction shows LAPD officials are starting to realize running a closed shop only further alienates the communities the department serves. Hopefully, additional public input will continue steering the agency towards more openness in the future.

Filed Under: body cameras, lapd, police, transparency

CIA Still Arguing Its Official Leaks To Journalists Shouldn't Be Subject To FOIA Requests

from the redefining-the-term-'made-public' dept

Last week, a federal judge pointed out the obvious to the CIA: release-to-one is release-to-all, no matter how the agency's lawyers spin it. The CIA had emailed classified information to certain journalists. When another journalist sought copies of those emails, the CIA handed him fully-redacted versions. Obviously, they weren't redacted when they were sent to select members of the public. Why would the CIA feel the need to redact the information now when another member of the public asked for it?

The CIA argued it had every right to hand out classified info to whoever it saw fit and then turn around and refuse to hand it over when an FOIA requester requested it. It said the classified info it gave to journalists was never published by those journalists, so it was technically not a public release. The judge shot back, stating that the CIA had effectively waived its right to withhold this information by handing it out to journalists in the first place.

CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.

The FAS Secrecy News blog brings us the news that the CIA has already issued a response [PDF] containing new arguments about why it should be able to engage in selective disclosure of classified info to members of the public.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from "unauthorized" disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. "The CIA properly exercised its broad discretion to provide certain limited information to the three reporters."

"The Court's supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken," the CIA response stated. "The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA's exemptions."

So, technically, it's not a new argument, just a reiteration of the CIA's stance on classification waivers it would rather believe aren't waivers of classification. In essence, the CIA would like to be able to selectively leak classified information while retaining the privilege of denying every other member of the public access to these leaks. If the selected journalists choose to publish classified info handed to them by the CIA, only then does it enter the public domain, according to the the CIA. Otherwise, the CIA will decide what's classified and withholdable, not judges or logic or common sense.

Apparently, this is standard operating procedure for the agency. MuckRock's stash of CIA documents contains official instructions for CIA leaks to the press, including a checklist for post-leak damage control.

The form for reporting the leaks... was fairly comprehensive. In addition to any supplemental materials, which were be attached to the leak reports, the form was two pages long. In addition to requesting the time, date, publication author and how the sourcing was attributed, the form requested notes about the subject matter, the geography associated with it and the dissemination of the information. After asking what, if anything, the information had compromised, the form asked about the accuracy of the information.

The form also requested information about whether the leak was authorized or not, and who had authorized it. Tellingly, it requested information about which government organizations were criticized in the leak, but didn’t feel the need to ask who or what had been praised.

The tradition -- started during the Nixon administration in response to his call to root out leakers -- continues to this day. The CIA will make snap decisions on declassification, hand out info to reporters it feels it can trust, and possibly report the leaks to intelligence oversight. It happened often enough a computerized system was built to track the agency's official leaks. Nearly fifty years later, the CIA's official leak program is being challenged in court, and the CIA wants everything to be the way it was during the glory days of the Nixon presidency.

The CIA's hypocritical arguments are symptomatic of a hypocritical system. The intelligence community hates leakers, unless it's the agencies themselves doing the leaking. And it definitely doesn't trust journalists… unless it needs them to help control the narrative. The judge in this case is punching holes in government tradition. Hopefully, this will end with the CIA handing over the info it already handed over to other people, free and clear of redactions.

Filed Under: cia, foia, leaks, transparency

After Controversial Traffic Stop, Police Chief Says He Won't Release Recordings To 'Anti-Police' Requesters

from the always-forget-the-'unless-you-don't-like-the-government'-clause-in-t dept

The Chesterfield County Police Department is willing to violate your rights. If it's not your Fourth Amendment rights, it'll be your First. And this is fine with the department's chief, who's gone on record as a supporter of rights violations.

A traffic stop for a minor violation quickly escalated into a life-or-death situation for a black college student cops. Elie Mystal of Above the Law breaks it down as only Elie can.

Yesha Callahan’s son survived his encounter with police. The Virginia State University freshman was pulled over last month on suspicion of being black (the police are calling it marijuana something or other, but I’ve long since stopped trying to sugarcoat their probable cause for them). Police saw something in his waistband, they claimed, and pulled a gun on him. For 38 seconds, the boy’s life was at the mercy of the state. But he kept his cool, and survived. No shots were fired.

If you think this is too "anti-police," here's a different take from Michael Paul Williams of the Richmond Times-Dispatch, who has seen the body camera footage.

In the police body camera footage, the car rolls through a red light on Chesterfield Avenue as it turns right onto East River Road in Ettrick.

An unmarked Chesterfield County police car flashes its lights and pulls the vehicle over. The traffic stop seems unremarkable until an officer wearing a body camera asks the driver — by now, standing outside the car at the officer’s request — if he’s in possession of anything illegal. The driver attempts to tell the officer he has a knife and starts to reach for it.

The knife, as it turns out, was legal. But the situation instantly spiraled from calm to chaotic.

“Don’t reach. Don’t reach. Do not reach,” shouts the officer’s partner, who points a gun at the driver from the other side of the vehicle.

“He’s got something clipped in front of his pants,” he shouts to his partner, as the driver continues to attempt to explain himself. “OK, don’t you freaking grab for a knife!”

As the driver, a Virginia State University student, is being handcuffed, the gun remains trained on him for 38 seconds. When the handcuffs are secured, the officer lowers the weapon. Throughout the encounter, a passenger in the car who is also enrolled at VSU remains still in his seat.

The knife was legal and the student compliant. But still guns were drawn by men who seem to only stop yelling when they start "fearing for their safety." No marijuana was found and the driver was released without a citation. His mother took her complaint to the court of public opinion. (She also filed one with the police department.)

Callahan, though, was not merely satisfied that her boy was spared an execution. Callahan is a writer for the Root and shared her experience there. She tweeted about it. She made herself an issue for the Chesterfield County Police Department. She filled out a FOIA request demanding that the department release the body cam footage of her son’s nearly deadly traffic stop.

The Department denied her request.

Callahan wants to know what happened to her son -- how a minor traffic violation turned into a guns-drawn situation. Police Chief Jeffrey Katz doesn't want to give it to her. At first, the department claimed it couldn't release the video because of an "ongoing investigation." It's a bullshit reason, considering no ticket was issued and no charges were filed. When this was pointed out, the police spokesman spun it, claiming it was part of an internal investigation of the officers involved in the stop. But the police chief wasted no time undercutting his spokesperson's excuse.

“This is a video we would want out in the public,” Katz said. “There’s nothing in the video bad for the officer or bad for the department or bad for the profession.”

This doesn't sound like the words of man running an investigation. This sounds like the involved officers have already been cleared. But this statement comes at the end of a string of statements by the police chief which show he's violating Yesha Callahan's First Amendment rights, along with public records laws, just because he doesn't like her.

Katz says part of the reason the department has not released the video to Callahan is that she has “an anti-law enforcement agenda.”

That's not a valid reason to withhold records. Lots of people who requests records aren't supportive of the entities they request records from. Katz is creating serious, legally-actionable First Amendment issues by stating he'll only release records to friendly requesters. Chief Katz goes further, though, suggesting he won't release records to anyone who might present them along with negative commentary.

“I believe we have a responsibility to maintain custody of the video and not put it in the public domain,” he said, “because we want to ensure that it is not spliced, that voice overs are not placed over it and that we can maintain and control the authenticity of the video. But we are more than willing to share the video with anybody who wants to come in and view it.”

This is beyond stupid. The best weapon against speech you don't like is more speech. If someone alters the video and/or adds commentary, the department can release unedited videos for comparison. You cannot withhold records just because you think you won't like how they'll be used. Chief Katz is violating Callahan's First Amendment rights because he apparently believes "anti-police" people have fewer rights than those with more neutral viewpoints.

The invitation to view the recordings on Chief Katz's home turf doesn't make the rights violations disappear. There's little to like about viewing recordings surrounded by people who don't like you. This would be a five-hour round trip for Callahan -- one she'd prefer to make with her lawyer. It would be simpler for everyone if Katz would just hand over a copy of the recordings. But he won't. And his statements make it clear he'll violate the First Amendment in the future if it keeps documents from falling into the hands of his enemies.. you know, members of the public he serves. Fortunately, he's said these things out loud to members of the press, which will come in handy for Callahan when she files her public records lawsuit against the department.

We all know public agencies will do everything they can to keep documents out of the hands of critics. But most of those agencies have been smart enough to use FOIA exemptions, excessive fees, and years of foot-dragging to withhold documents from the public. Chief Katz, however, is a transparency pioneer: one willing to tell journalists he won't release records to people he doesn't like. This isn't going to end well for him.

Filed Under: anti-police, chesterfield county, foia, motives, police, transparency, yesha callahan

Government Says FISA Court Should Stop Wasting Time Considering The ACLU's Request For Greater Transparency

from the and-take-your-worthless-Constitution-with-you! dept

Late last year, the FISA Court did something it had never done before. It performed an en banc review of an earlier decision to determine whether or not the ACLU had standing to petition the court to release decisions pertaining to ongoing surveillance programs. The judges found the ACLU could continue its legal battle -- one it has waged on and off for more than a decade. It pointed out the ACLU had raised enough of a First Amendment allegation to be heard, although it wasn't particularly optimistic about its ability to overturn decades of FISA court secrecy.

The FISA court has posted the opening briefs from both parties. The government's brief [PDF] basically argues that the court has worked in near-total darkness for years and it should go on doing so for years to come. The phrase "national security" is used frequently. It points to two earlier petitions by the ACLU -- filed with different FISA judges -- as having set up a dilemma the government shouldn't even need to address. Judge Saylor's opinion in 2013 opened the door for the ACLU's standing, finding the ACLU was entitled to access at least one opinion dealing with bulk collection authority.

Judge Collyer's decision, released only months later, made no such finding. Instead, Collyer noted the court's secrecy was essential to the nature of the surveillance it approved and the ACLU had no standing to allege a violation of a First Amendment right to access FISA court documents. The government argues Collyer's decision was correct, not the one recently reached by the full panel of FISA judges.

There is similarly no substantial argument that it is logical to open up the FISC's proceedings to public view. The FISC's "entire docket relates to the collection of foreign intelligence by the federal government." In re Motion for Release, 526 F. Supp. 2d at 487. Its operations are governed "by FISA, by Court rule, and by statutorily mandated security procedures issued by the Chief Justice of the United States," which together "represent a comprehensive scheme for the safeguarding and handling of FISC proceedings and records." Id. at 488. The FISC has thus correctly found that ''the detrimental consequences of broad public access to FISC proceedings or records would greatly outweigh any" benefits, and . . that these harms "are real and significant, and, quite frankly, beyond debate."

The government also points out the FISA court has no power to declassify court proceedings. In fact, it argues the court overseeing government surveillance programs doesn't have enough information on hand to make that determination… which is a weird thing to say about people who review surveillance requests.

The Constitution assigns responsibility for classifying and controlling access to national security information to the Executive rather than the judiciary because only the former has the expertise and resources to make the necessary national security determinations.

The ACLU's brief [PDF] argues that FISA court precedent isn't the only precedent the court should consider. It points out that every court that has handled the issue has determined, to some extent, that denial of access to court records is an arguable First Amendment injury.

It then goes on to point out that the few times the FISA court has ordered the release of an opinion, the government has redacted so much that the released documents are useless. On top of its arguments that it should be allowed to proceed with its argument for access, the ACLU also suggests the court take a more active role in moderating the government's redaction efforts. As it points out, prior challenges of government secrecy assertions by the court have shown the government is unable to justify its redaction demands.

Critically, there is no indication in the public record that the FISC had any role in determining which portions of its own opinions should be made public. The government appears to have determined unilaterally which parts of the FISC's orders should be redacted and kept secret. By contrast, in response to a separate access motion brought by the ACLU, the FISC required the government to explain and justify its proposed withholdings in another FISC opinion. That review proved essential to securing public access to the court's opinion. Once required to defend its withholdings, the government abandoned many of them.

It also cautions the court against conflating standing with merit. As the FISA en banc review determined, all that's needed to bring a case is a cognizable injury. The merits of the case will be determined at a later date. The government's brief -- along with the dissenting opinion from the en banc hearing -- wish to substitute merit for standing in order to prevent any further discussion about public access to FISA court documents. All the ACLU wants is a chance to prove its case. The government wants the ACLU to be denied this opportunity altogether.

There's no date set for a ruling so it may be several months before the FISA court hands down a decision. (And several more months after that if the government feels something needs to be redacted.) But this shows the FISA court is at least willing to entertain the ACLU's arguments, even if the end result is a return to the status quo.

Filed Under: first amendment, fisa, secrecy, transparency
Companies: aclu

Bureau Of Land Management Decides It's Going To Be A Lot Less Receptive To FOIA Requests

from the adding-power,-subtracting-accountability dept

The new administration's plan to undo everything Obama ever did (along with lots of stuff other presidents put in place) continues. Fighting leakers and multiple investigations, the Trump administration is steamrolling regulation by slashing through red tape and common sense with equal aplomb. This administration may have a reputation for inadvertent openness, but its new directives aren't so much draining the swamp as building a swamp in its own image.

The Bureau of Land Management is apparently viewed as the Fed version of Greenpeace. Previously-protected federal lands are being opened up for business, starting with the removal of environmental impact reviews. This should speed up the return of the government's land to certain people -- mining companies, the CBP's inland expeditions, wall builders, etc. This affects nearly 950 million acres of federal land. A raft of exclusions would make it easier for the Bureau of Land Management to manage land however it sees fit.

The package, which includes policy changes with immediate impact as well as regulatory and legislative proposals that would take more time to execute, would eliminate lengthy federal reviews in many instances through “categorical exclusions” if officials determine the activities have no environmental impact.

Such exclusions would cover everything from the BLM’s coal leases to efforts to euthanize wild horses and burros. Such an exclusion also would be pursued for “oil and gas wells that run horizontally from private wells into adjacent federal minerals,” according to the document.

But that's not the only thing the BLM is doing. As its power expands, it's working to scale back its transparency and accountability. J. Pat Brown of MuckRock noticed something else in the BLM's report on its post-Trump plans: an attempt to recraft existing FOIA law to deter records requests.

According to records obtained by the Washington Post, the Bureau of Land Management is recommending new legislation that would limit the number of FOIA requests individuals and agencies could file with the agency, create stricter criteria for fee waivers, as well as increased fees for “search and redaction.”

The BLM says it just doesn't have the budget for handling FOIA requests at the speed it used to. But that's obviously a huge misrepresentation of the facts. The BLM spent 0.2% of its $1.3 billion annual budget handling records requests, which is hardly an onerous amount. This is nothing more than an attempt to bypass its accountability to the public under the guise of federal agency belt-tightening. It claims answering requests "diverts resources" and hampers "decision-making processes," as though an integral part of government accountability were nothing more than a timesinking pain in the ass.

Capping requests from any entity or group is going to harm journalists and the downstream beneficiaries (the general public) of their reporting. This hard cap will probably affect corporations the most, as J. Pat Brown points out, but it's not as though the damage will be limited to well-funded participants in the FOIA process.

Federal agencies were never friendly to FOIA requesters under President Obama. But under Trump, they've become downright hostile. Granted, agencies like the DHS, FBI, and CIA were already openly hostile, but with Trump's revamp of multiple agencies, they've been joined by more generally-docile entities like the BLM and EPA. The more things are disrupted in DC, the more likely it is that federal agencies will circle the wagons. And it will be the taxpayers who are locked out, but still expected to foot the bill for antagonistic policies aimed at them.

Filed Under: blm, bureau of land management, foia, transparency

Kansas Legislature Introduces Two Bills Mandating Speedy Release Of Police Body Cam Footage

from the thinning-the-blue-line dept

Two new bills have been introduced in the Kansas state legislature with the intent of forcing law enforcement agencies to turn over body camera footage in a timely manner. They appear to have been prompted by the family of a man shot and killed by police officers late last year. It took police 11 weeks to turn over footage of the incident. Even then, it wasn't as though the footage was given to the executor of Dominique White's estate. Instead, White's father was "granted access" to the the body cam footage, which means he was able to watch the video on police equipment at a police station by himself with no other surviving family members.

This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.

These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.

The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.

Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.

Body cameras don’t have the same perspective as the officers, said Greg Smith, a special deputy/sheriff’s liaison with the Johnson County Sheriff’s Office.

“If you’re looking for this to be some kind of panacea to fix police and community relations, this is not the bill,” he said.

Olathe Police Chief Steven Menke said a body camera is a tool but “rarely tells the entire story.”

“We cannot lose sight of the fact that police officers have the same due process rights as every other citizen,” he said.

Shorter law enforcement: trust cops, not your lying eyes. Yes, body cameras "rarely tell the entire story," but that objection is never raised when footage clears officers of wrongdoing or shows subjects apparently engaged in criminal acts. And cameras are not a panacea. But burying footage behind legislated barriers is about as far removed from a "panacea" as law enforcement can get.

It's true a 24-hour turnaround time is extremely tight, especially if the responding agency doesn't have much practice handling camera footage and/or applying redactions. That being said, too long of a grace period for redaction just invites stonewalling, even when footage is edited and ready to go. Without hard limits on production, everyone's still going to be subjected to interminable waits to access body cam footage.

The complaint by the local police union is even more nonsensical.

"If this bill becomes law, law enforcement agencies would be forced to disclose the video long before their criminal and/or administrative reviews are completed," said Blaine Dryden, president of the Kansas State Lodge of the Fraternal Order of Police. "Unquestionably, the disclosure with this much haste is not accompanied by any substantial factual context that a complete investigation provides."

Law enforcement agencies are Johnny-on-the-spot when it comes to delivering rap sheets, surveillance footage, questionable social media posts, or whatever else puts victims of excessive force in a bad light. But they're oh so reluctant to turn over footage showing officers engaged in questionable behavior. Somehow we're expected to wait for everything to get sorted out over the next several months-to-years before we're allowed to take a look at footage officers captured in public while performing their public duties.

The clock is ticking on these bills and legislators pushing for the new laws claim they're being met with law enforcement stonewalling.

Sen. Molly Baumgardner, R-Louisburg, a supporter of the bill, said the issue of providing access to police recordings has been around the Legislature for at least three years, and she said opponents of the measure have so far been reluctant to negotiate.

If they can wait it out, the legislative deadline for bill passage will come and go with the bills still in the starting dock. That's only a few days away. Without forward progress, the bills will idle until the next session and may not be picked up again until next year.

It's unrealistic to think the release of footage will single-handedly reform law enforcement agencies. But allowing them to maintain the opaque status quo will result in zero change whatsoever. Hopefully, at least one these bills will move forward before the deadline and start making its way towards the governor's desk.

Filed Under: body cameras, kansas, police, transparency

UK Metro Police Sued Over Phone Malware Purchase

from the [devastatingly-accurate-rhyming-slang-TK] dept

Last spring, a hacker who had illicitly obtained data from malware/spyware company FlexiSpy shared some of it with Motherboard. In the trove of customer data, it was discovered that one purchase was linked to an officer in the UK Metro Police.

FlexiSpy is powerful malware, capable of gathering communications from multiple messaging services, as well as providing GPS location, emails, and phone call records. The purchase of this malware is questionable, considering it's regulated under the UK's Computer Misuse Act. The most obvious limitation of the malware is the fact that it requires physical access to targeted devices. But phones, tablets, and computers are seized all the time by law enforcement officers, and they're sometimes returned to their owners after being searched. Malware like this would allow officers to hitch a virtual ride on someone's phone or laptop, seeing everything they see.

Motherboard asked the Metro Police for more details on this spyware purchase. Unsurprisingly, the Police didn't want to talk about it.

A Met spokesperson told Motherboard in an email "the MPS neither confirm nor deny engagement with FlexiSpy."

The rest of statement was the usual "everything we do is lawful and subject to oversight" boilerplate that accompanies every leaked document or accusation of unlawful surveillance. The Met refused to discuss it further, even as Motherboard provided evidence that an officer had indeed purchased the spyware using a Metro Police email address.

Nearly a year has gone by and the Metro Police still refuse to provide any more details about this purchase. So, Motherboard -- with the assistance of UK solicitors -- is suing the Met for its refusal to discuss the FlexiSpy purchase.

Working on behalf of Motherboard, solicitors from Bindmans LLP filed a complaint with the Independent Police Complaints Commission (now called the Independent Office for Police Conduct, or IOPC).

In a December letter, the Directorate of Professional Standards at the MPS said a chief inspector concluded that Motherboard’s complaint did not need to be professionally recorded, meaning it would not be investigated. The reason given was that Motherboard was not a member of the public who claims have witnessed a piece of misconduct. Motherboard’s legal team for this complaint strongly disagrees with that finding, and has filed an appeal to the IOPC, urging it to call in an independent investigation.

Motherboard is seeking more info on the purchase, as well as how it may have been deployed. In most cases, the use of FlexiSpy would violate UK law, even if used by police officers. There's also the possibility that an officer used his official status to obtain a copy for personal use. Or it could be the copy was purchased simply to observe the software in action and never deployed against any UK citizen. There's no way of telling unless the Metro Police look into it. But so far, the Metro PD doesn't seem very interested in policing its own.

Filed Under: malware, motherboard, spyware, transparency, uk, uk metro police
Companies: flexispy, vice

Trump, Nunes Accidentally Undo DOJ's Efforts To Keep Surveillance Docs Under Wraps

from the helluva-an-effort-there,-Trumpy dept

The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.

Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.

During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.

Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.

“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”

The DOJ tried to argue that Trump's declassification of the memo wasn't an endorsement of its contents. The judge found this assertion literally incredible, saying she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo. If the DOJ can't find a way to push this argument past the judge, Buzzfeed will likely gain access to documents it might need to defend itself from a libel lawsuit brought by someone mentioned in the Steele dossier. If nothing else, the declassification of the memo shows there's substantial public interest in the contents of the dossier, which would buttress Buzzfeed's claims that publishing it (without verifying the contents first) was "fair reporting" on government activities.

The DOJ, however, continues to insist the sought documents, even if released, change nothing for Buzzfeed. But to make this argument it has to sell its first argument -- that the facts disclosed by the Nunes memo are not actually facts. The DOJ will get to make this argument in person, behind closed doors with the judge, where it will argue that releasing documents to Buzzfeed would harm its ongoing investigation.

On top of this turn of events, the Nunes memo's release has also forced the DOJ to change its opacity stance in other FOIA lawsuits.

In one of those FOIA cases on Wednesday, government lawyers notified the court that the president’s declassification actions forced them to withdraw a refuse-to-confirm-or-deny response issued on requests that USA Today reporter Brad Heath and the pro-transparency James Madison Project made for surveillance warrants on Trump associates.

The DOJ may end up having to release documents it doesn't want to release, thanks to the president and legislators aligned with Nunes. All it can do right now is buy time. And it will be an indefinite amount of time, apparently.

“Given recent events, and the possibility of additional declassifications by the president,” the lawyers wrote, “the government is unable at this time to propose a timetable to conduct this review.”

The Forever War on Transparency continues, but it's being frustrated by self-serving acts of openness by the White House. I guess we're the beneficiaries of accidental largesse, although it may be outweighed by other damaging White House acts and policies. However, someone writing about issues like these should never wish to live in uninteresting times, so the remainder of the Trump presidency should provide plenty of transparency yin/yang moments like these, where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets whenever it seems it might serve his singular narrative.

Filed Under: amit mehta, devin nunes, disclassified, doj, donald trump, foia, glomar, steele dossier, surveillance, transparency
Companies: buzzfeed