Virginia Senate Votes To Exempt Police Officers' Information From FOIA Responses

from the referred-to-by-short-name-'Cosgrove-Coverup' dept

Way to go, Virginia. In a time when police accountability is (finally!) a mainstream media topic, the Virginia state legislature is having none of it. Prompted by a recent court decision granting The Virginian-Pilot access to police employment records, the state Senate has passed a bill that basically neutralizes the brief win for transparency advocates. (via Radley Balko)

The Virginia Senate voted 25-15 on Monday to keep the names of all police officers and deputy sheriffs a secret.

SB552 by Sen. John Cosgrove, R-Chesapeake, applies to any local or state officer, including officers from agencies such as the Department of Alcoholic Beverage Control and the Virginia Marine Police.

The bill's wording puts law enforcement officers in the same accountability bracket as state employees making less than $10,000 a year.

The provisions of this subsection, however, shall not require public access to records of the (a) official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less or (b) the names, positions, job classifications, or other personal identifying information concerning (1) employees of state or local police departments or sheriff's offices who are responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; (2) special agents of the Department of Alcoholic Beverage Control; (3) officers of the Virginia Marine Police; (4) conservation police officers who are full-time sworn members of the enforcement division of the Department of Game and Inland Fisheries; (5) investigators who are full-time sworn members of the security division of the Virginia Lottery; (6) conservation officers of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115; (7) full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217; or (8) animal protection police officers employed under § 15.2-632.

The bill now goes to the House, where it will hopefully be greeted with disbelief and derision. Or not. The bill's creator, John Cosgrove, is conjuring up the ghastly spectre of the nonexistent "War on Cops" to justify cutting the public out of the loop.

Cosgrove said Monday that his bill, which exempts law enforcement officers from Freedom of Information Act requirements, should be passed to protect officers and their families from being targeted for violence.

“Unfortunately, our culture has changed,” he said. “Many times, police officers are considered fair game.”

A local law enforcement official agrees:

John Jones, executive director of the sheriffs' group, said he believes that the concerns about the bill are unfounded.

"With social media and all the databases, once you get the name and a little bit more information ... you can pretty much get a picture of who they are," Jones said. "And with everything going on with law enforcement... it's an officer safety issue."

"Everything" apparently being the freefall in police firearm-related deaths over the past 40 years.

If Cosgrove's bill manages to land on the governor's desk and net a signature, he will likely be hailed as a hero by his Fraternal Order of Police brethren. His constituents, however, will receive nothing more than additional widening of the gap between them and those who are supposed to serve them.

Filed Under: accountability, foia, police, privacy, virginia

FBI Claims It Has No Record Of Why It Deleted Its Recommendation To Encrypt Phones

from the maybe-it-was-encrypted dept

A couple of years ago, I wrote about how -- just as the FBI was whining about encryption and "going dark" -- it was, at the same time, urging people to encrypt their mobile phones to protect against crime: Then, last year, I noticed that the page had been deleted. Seemed curious, so I sent in a Freedom of Information Act (FOIA) to the FBI to better understand why that page had magically been deleted, just at the time it seemed to contradict the FBI Director's statements about encryption.

It, of course, took much longer than the legally mandated 20-day response time, but the FBI has finally "responded" to tell me that it can't find anything. So sorry, too bad. If you can't read that, it says:

Based on the information you provided, we conducted a search of the locations or entities where records responsive to your request would reasonably be found. We were unable to locate records responsive to your request. If you have additional information that may assist in locating records concerning the subject of your request, please provide us the details and we will conduct an additional search.

It is, of course, entirely possible that my request was not clear enough -- though I specifically pointed them to where the URL used to be and what was on it. So I'm not entirely sure what other information to provide in response. And that's part of the problem with the FOIA process. It's something of a guessing game, where if you don't guess exactly the proper way to phrase what you want, they'll just come back with a no responsive documents response. Of course, perhaps they just encrypted the information on an iPhone and they won't be able to get it for me unless they win their fight against Apple... right?

Help us keep covering stories like these!

Filed Under: doj, encryption, fbi, foia, mobile encryption, phones

NYPD Says It Has No Record Of Asking Disney To Use Copyright To Shut Down Times Square Characters, Despite Public Admission

from the FOILed-again dept

It's hard to imagine in the depths of this frigid New York winter, but last summer the city seemed to be in the grips of a Times Square Problem. Costumed characters -- and the relative newcomers, painted topless women -- were declared a public enemy, begriming the otherwise idyllic tourist mecca of midtown. But the NYPD, tasked with enforcing this mandate, had a problem: with only about one crime reported per day in Times Square, there's not a lot to actually enforce.

So, as Techdirt and others reported at the time, the Department tried to get IP law to step in. Posessed of a legal theory that wouldn't have survived much scrutiny, Commissioner Bill Bratton (or one of his employees) approached Disney and Marvel, asking them to sue the costumed performers for copyright infringement. The companies declined. We know all this because Bratton confirmed it to media outlets last August. In CNN:

The NYPD confirmed to CNNMoney that Commissioner Bill Bratton asked Disney and Marvel to sue for copyright infringement. But according to the NYPD, the companies aren't biting.

And in the Daily News:

The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.

The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.

Lest you think, "But how would this all fit with the First Amendment?", later in the same interview Bratton gives a remarkable quote that shows exactly how much respect he holds for freedom of speech:

Bratton also took a shot at Times Square artists like Andy Golub, whose specialty is using naked people as his canvas.

"What he is effectively doing is flaunting the first amendment," he said. "Well, it may be an artistic expression, but it repulses the average person, and this is what we’re dealing with."

Given that stance, the copyright requests of Disney and Marvel seemed like they might be extraordinary. So just after these news reports were published, late last August I made a public records request for the communications -- or records of the communications -- under New York's Freedom of Information Law (FOIL).

I should not have expected much. After all, NYPD was given an "F" grade for its FOIL compliance by then Public Advocate Bill de Blasio in a 2013 survey of New York agencies. At least at that time, nearly a third of FOIL requests to NYPD simply went unanswered. Over a quarter took more than 60 days to process.

And when my request was acknowledged, I was told a review for the records would take 90 business days. Already, that's an outrageously long time for an agency to take. FOIL allows some flexibility in response times, but 90 business days is about four months -- too long for the records to be useful to a follow-up story, and far too long to allow me to refine my request and send in for more information.

Alas, this wasn't a top priority for me, and I accepted the 90-day timeline without appeal. So a little more than three months later, I got the word: "this unit is unable to locate records responsive to your request." In other words, no responsive documents; I get nothing.

What could this mean? As I see it, there are just a few possibilities.

• First, maybe I phrased my request in a way that doesn't describe the records they do have. I think I was pretty accurate with my description, but you be the judge:

  Communications and/or records of communications from January 1, 2012 to August 28, 2015 between the New York City Police Department and representatives of Disney, Marvel, The Jim Henson Company, Sesame Workshop, Sanrio, Viacom, Nickelodeon, DC Comics, Warner Brothers, Lucasfilm, or Nintendo of America, pertaining to or addressing the use of costumed characters in or around Times Square. Such communications, in the form of encouragement to Disney and Marvel to initiate copyright litigation, have been acknowledged by the NYPD to CNN in an August 28 story titled, "NYPD to Disney and Marvel: Get Minnie Mouse and Spider Man out of Times Square"

• Maybe there are no communications at all, despite Bratton and Disney confirming there were to the media. I don't really see what anybody has to gain by doing this.

• Maybe the department has responsive records and chose not to give them to me. The agency didn't cite an exemption or provide any indication that this was the case, but we're talking about an agency that made up its own bogus "classification" scheme. It may be in violation of FOIL, but it doesn't seem beyond the pale for the NYPD.

• Finally, it's possible NYPD conducted these communications in a way that did not generate any records. This is just speculation, but if this is the case, it's hard to imagine this happening by accident. The NYPD asking Disney and Marvel to bring lawsuits, and there's no paper trail at all?

Unfortunately, the nature of frustrated transparency efforts is that we don't really have the answers. If the NYPD had promptly responded that it had no such records or would be withholding them according to a particular exemption, or even if it had given me a limited set, we could close this case. As it stands, we don't really know anything more about the NYPD's bizarre efforts to jam its "quality-of-life" issues into an ill-fitting copyright enforcement box.

Filed Under: copyright, costumes, foia, nypd, transparency

The Need For Deep Pockets And Lawyers Means The FOIA Process Benefits Corporations The Most

from the and-the-general-public-gains-nothing dept

FOIA reform is (yet) again working its way through the bowels of Congress. Unfortunatley, the FOIA process is resistant to fixing because there's very little in it for the government. Agencies are supposed to err on the side of openness and transparency, but a stack of broadly-written exemptions makes it's far too easy for them to operate in opacity.

One of the major problems with the FOIA process is that it takes a lawyer on retainer and lots of money to get the most out of it. For most FOIA filers, an agency's refusal to respond in a timely fashion or release requested information is the end of the line. Unless they're working in conjunction with a major journalistic enterprise, the FOIA ball is completely in the government's court.

Over the past few decades, this has led to only certain components of the American public being able to make the most of the FOIA process. And these entities aren't interested in dragging the government's secrets out into the open. They're more interested in acquiring information on other private entities via the government's transparency tool.

Prawfsblog, by way of Scott Greenfield, noticed something about some FOIA stats. The "people" making the most requests aren't "people" in the generally accepted use of the word.

Margaret Kwoka of Prawfsblog notes the law isn't really serving the purpose it was intended to.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

This is something that has been noted here before. FOIA requests roll in from journalists when hints are dropped (usually by anonymous government officials) about something not previously exposed. In response, government agencies quite often stonewall requesters until Issue X fades from the public eye. And there's not much any requester can do to expedite the process other than file a lawsuit -- which isn't an option for many people. Scott Greenfield points out what happens to the average (read: non-corporate) requester.

Make a FOIA request, wait your ten days, and get . . . nothing. Complain and get . . . nothing. Maybe you get a response years later. And when you do, maybe it’s responsive, or maybe it’s ten pages, fully redacted, out of 473, the rest of which is refused. Or maybe you get . . . nothing.

Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request. Maybe you get notification that they would be thrilled to respond, if only you would send them $71,493.27 to cover the cost of your ten pages. And they will still get back to you when they’re good and ready, if at all.

What you gonna do about it?

The government knows this. And it likes it this way. FOIA reform is a perennial effort, but the law remains greatly unchanged. No one wants to shift too much power to the people and make the letter of the law approach the spirit of the law. But, as is the case with much of the government, it finds itself relatively powerless in the face of deep-pocketed corporate interests.

Large corporations have the staffing, money and lawyers to make the law work the way it's supposed to work. And the government is more than happy to oblige them. First off, these entities have the power to compel the government to produce requested documents. Secondly, the information being turned over to requesting corporations has very little to do with the government's secrets. As long as well-lawyered corporations are asking for little more than info on their competitors, the government is all too happy to reply to their requests.

There’s gold in government documents, and these are the documents that the government doesn’t care enough to keep private, mostly because what they reveal isn’t any of the government’s deep, dark secrets, but ours.

What's more, the information requested by these corporations goes into their private stock. It's very rarely offered up for public consumption. The government doesn't mind making its secrets someone else's secrets. But it certainly doesn't care for its secrets being made public knowledge.

The FOIA process is broken -- hopefully not irrevocably. There are moments where it works brilliantly, but mostly due to operator error on the respondent side. Things slip through that were obviously meant to be kept buried. Inconsistent redactions allow one requester to access what another couldn't, etc. But, on the whole, the "presumption of openness" urged by the administration is never going to take hold without serious reform of the existing law.

As Greenfield notes, the presumption of opacity is still in full effect, even when that opacity is patently ridiculous.

As of this date, the FOIA website still lists Eric Holder as Attorney General, even though he has been replaced by Loretta Lynch. When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.

Filed Under: deep pockets, foia, government, lawsuits, transparency

Federal Judge Not Amused By State Department's Continued Withholding Of Hillary Clinton's Emails

from the and-not-even-HE-can-force-it-to-work-faster dept

A federal judge has expressed his displeasure at the State Department's ongoing foot-dragging over the release of Hillary Clinton's emails.

US District Court Judge Rudolph Contreras told lawyers in a Washington, DC courtroom that "the government put me between a rock and a hard place" by failing to meet the deadline and asking for more time. Contreras didn't want the emails released without being properly vetted for sensitive information — State says it needs more time for the vetting process — but postponing the release was also to the detriment of the American public.

"To state the obvious, these documents have a lot of public interest, and the timing is important," Contreras said.

Contreras undersells the public interest -- which has been high ever since it was discovered Clinton had been conducting official (and sensitive) business using a private email server. Now that Clinton is a presidential candidate, the release of the emails could adversely affect her campaign.

I don't believe the State Department has a personal stake in Clinton's potential presidency, but it's operating in a way that would encourage people to come to that conclusion. Instead, this is likely business as usual for the agency.

For one, government agencies protect their own. Clinton's use of a private server makes the State Department look bad because no one with the power to do so ever made an effort to shut her down. Released emails show Clinton dealt with classified material, something that should never have been routed to a private email account. The State Department's lackadaisical handling of this matter would only be highlighted further by additional releases.

That's one aspect of it. The other is that the State Department is just generally terrible at handling FOIA responses. The agency's Inspector General released a report in January that showed the agency was more than just merely inept. Its FOIA response system is almost completely broken.

The report from State Department Inspector General Steve Linick points to a series of failures in the procedures the office of the secretary used to respond to public records requests, including a lack of written policies and training, as well as inconsistent oversight by senior personnel. The report also faulted the secretary’s office for a practice of not searching for emails responsive to FOIA requests unless the request specifically asked for emails or demanded “all records” on a topic.

“These procedural weaknesses, coupled with the lack of oversight by leadership and failure to routinely search emails, appear to contribute to inaccurate and incomplete responses,” the report says.

[...]

The report also points to extreme delays in other cases, such as an Associated Press request for Clinton’s schedules that was pending without substantive response for five years.

The outcome, however, is indiscernible from an active effort to shore up a candidate's presidential race. Judge Contreras is aware of this. He's attempting to set another hard deadline for the release of still-withheld emails, but there's only so much he can do when the State Department has casually rolled past other deadlines it's been given.

"Explain to me again why something that's gone through the legal reviews could not be posted until a week from Thursday," Contreras responded. "This seems like an unreasonably long period of time to post, or give access to, something that has already passed clearance."

The judge ordered State to provide "a very specific description" the following day of why the cleared files couldn't be released sooner. He also told State to consider alternative methods of disclosing the emails that might give VICE News access to them sooner, such as allowing the pages to be viewed on a screen without actually delivering them.

As it stands now -- even without malice aforethought by the State Department -- four states will have concluded their primaries before the agency has to produce the documents.

Filed Under: clinton emails, emails, foia, hillary clinton, jason leopold, rudolph contreras, state department

Federal Judge Says The FBI Needs To Stop Playing Keepaway With Requested FOIA Processing Documents

from the the-first-rule-of-FOIA-processing-is... dept

Score one for the American public. A federal judge has reached the same conclusion many FOIA requesters have: the FBI simply doesn't play well with public records laws.

The FBI unlawfully and systematically obscured and refused to answer legitimate requests for information about how well it was complying with the Freedom of Information Act (Foia), a Washington, DC court found last week.

US district judge Randolph D Moss ruled in favor of MIT PhD student Ryan Shapiro, finding that the government was flouting Foia, a law intended to guarantee the public access to government records unless they fall into a protected category. Moss found that the FBI’s present policy is “fundamentally at odds with the statute”.

The 63-page opinion dives deep into the FOIA exemption weeds. Moss does grant the FBI a few of its motions for summary judgment, but on the whole, he finds the FBI's responses (or lack thereof) to several disputed FOIA requests to be unjustified.

The documents sought by Shapiro and his co-plaintiffs (Jeffrey Stein, Truthout, National Security Counselors) deal with the FBI's FOIA response procedures. These include "search slips," which detail the FBI's efforts to locate requested documents, case evaluations (which can give FOIA requesters some insight on the application of exemptions and search efforts made by individual staffers) and other processing notes. The FBI refused to part with any of these background documents if they pertained to other denied FOIA requests.

The FBI argued that most of what it withheld fell under "law enforcement techniques and procedures," which it feels are categorically excluded from disclosure, thanks to FOIA exemption 7(e). Of course, it all depends on which court it's making this assertion in, as the clause pertaining to this exception is punctuated badly.

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

In some districts, the courts have interpreted the wording to mean these records are exempt. In other districts, the courts have read the FOIA exemption clause as meaning these documents are only exempt if the FBI can offer evidence that releasing them might compromise national security or ongoing investigations.

Judge Moss' opinion agrees with the first interpretation. In doing so, he meets the FBI halfway, which is far further than the FBI has been willing to meet the suing FOIA requesters. Even with the additional slack, the FBI still isn't living up to FOIA standards.

Moss agreed that even if individual documents were protected by that Foia exemption, the entire categories of document the FBI withholds were emphatically not. “[The FBI] concedes that the vast majority of [the records in question] are not protected at all,” he wrote. “It is only arguing that by withholding all search slips, even those not protected by Foia, it can amass a haystack in which to hide the search slips that are protected [emphasis his].”

“[T]he FBI’s exercise of its statutory authority to exclude documents from Foia’s reach is not the kind of ‘technique’ or ‘procedure’” to which the necessary exemption refers, wrote Moss.

Moss is not the first DC District judge to order the FBI to explain its overuse of FOIA exemptions. In another FOIA lawsuit filed by Ryan Shapiro, Judge Rosemary Collyer found the FBI's lack of responsiveness and explanations to be problematic.

"(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.

Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."

I'm sure the FBI will challenge Judge Moss' order. It has no interest in providing additional documents to Ryan Shapiro as it's convinced the prolific FOIA filer will "trick" it into revealing stuff it doesn't want to with multiple, overlapping FOIA requests. The FBI's "mosaic theory" is being tested in court. With the claims it's made here, it clearly wants the court to reinterpret the letter of the law in its favor -- something that would move the agency even further away from the spirit of the law, which is exactly where it wants to be.

Filed Under: doj, fbi, foia, ryan shapiro

DOJ Lies To 'FOIA Terrorist' Jason Leopold; Claim They Have No Documents On Aaron Swartz

from the buncha-liars dept

Back in 2013, not long after Aaron Swartz's tragic suicide, reporter Kevin Poulsen (who had also worked with Swartz on what became SecureDrop, the system for whistleblowers to anonymously submit documents to journalists) submitted a Freedom of Information Act with the Department of Homeland Security about what info it had on Swartz. There were some legal fights about it, but eventually DHS was forced to release the documents, which now reside at a site set up by Poulsen called SwartzFiles.com. These documents revealed things like the government's weird infatuation with the Guerrilla Open Access Manifesto, that many believe was written (at least in part) by Swartz (there's at least some dispute over this).

Meanwhile, Jason Leopold, who uses FOIA requests so frequently and so effectively that the DOJ once labeled him a "FOIA Terrorist," submitted a similar request with the Justice Department -- specifically targeting the US Attorney's Office in Massachusetts -- which is the office out of which Swartz's case was prosecuted. Obviously, they have plenty of such documents. In fact, in Poulsen's DHS Swartz files there are emails between DHS and DOJ folks. But, an astounding three years and 11 days after Leopold submitted his FOIA request, the DOJ has told him it has no responsive documents. That's obviously bullshit. There's simply no way that the office that was prosecuting Swartz has no responsive documents on the case.

And, of course, perhaps the worst FOIA requester to give a bogus answer to is Jason Leopold. Not only is he one of the most persistent FOIA filers, he also is absolutely willing to file FOIA lawsuits when the government tries to deny him what he wants. As a recent profile noted, he's filed more FOIA lawsuits by himself than almost all other news organizations combined. And it seems quite likely that the DOJ just convinced him to file another such lawsuit.

Filed Under: aaron swartz, carmen ortiz, doj, foia, jason leopold, us attorney's office

NYPD Tells Public Record Requester It Will Cost $36,000 To Process A 'Sampling' Of Body Camera Footage

from the ransomware dept

The NYPD is once again in the middle of a transparency/accountability controversy. The law enforcement agency has achieved the dubious distinction of being more difficult to obtain public records from than federal three-letter agencies like the CIA and NSA. The latest news does nothing to improve its reputation.

Some of this is due to its in-house classification system, which allows it to arbitrarily declare potentially-responsive documents "secret" -- something it does quite often with no apparent oversight. Some of it is due to the department's general antagonism towards transparency and openness, which keeps documents not marked secret out of the public's hands just because. Its steadfast belief that the only entity truly entitled to information is the NYPD has seen this attitude carried over to discovery requests in civil lawsuits and criminal cases, much to the general disgruntlement of presiding judges.

With the NYPD's court-ordered body camera program going into effect, the recorded footage is the latest target of FOIL (Freedom of Information Law) requests. TV station NY1 asked for a "sampling" of body-worn camera footage from five weeks of recording. In return, the NYPD has given it nothing but delays… and a high-dollar estimate.

When the NYPD first rolled out its body camera pilot program, the idea was increased transparency and accountability. But last spring when NY1 requested five weeks worth of footage under the state’s Freedom of Information Law, known as FOIL, the NYPD said it would cost NY1 $36,000 so that an officer could first review and edit the video, to address privacy and other concerns.

After a couple rounds of appeals, the TV station has taken the next step. It sued the NYPD, citing a number of FOIL violations.

The NYPD denied NY1's request for unedited footage without specifying what material it plans to redact, how much material will be excluded from disclosure, or how the redaction will be performed. Instead, Respondents suggested that they may provide with edited footage, but only on the condition that remit $36,000.00, the alleged cost to the NYPD of performing its unidentified redactions.

FOIL does not permit public records to be withheld absent a full explanation of the materials that are exempt from disclosure. FOIL also does not permit agencies to levy any charge for review and redaction of records (let alone a $36,000.00 charge). As a result, the response to NY1's request violates FOIL.

Indeed, the response to NY1's request for footage runs counter to both the public policy of openness underlying FOIL, as well as the purported transparency supposedly fostered by the BWC program itself.

Redacting footage isn't necessarily inexpensive, but the NYPD has provided no justification for the $36,000 fee. The FOIL request doesn't ask for anything more than a "sampling" of the recorded footage. The NYPD responses don't specify whether the agency considers this to be every minute of footage recorded during those time periods, or something considerably more limited.

It is true that the footage will have to be redacted, at least in part. But without further information, the "reasonableness" of the NYPD's fee demand can't be assessed. This FOIL paywall runs contrary to the law's purpose, as well as the presumption of disclosure stressed in comments made by NYC Mayor Bill de Blasio, who lauded the new body-worn camera program as a step forward in transparency and accountability. If the footage remains solely in the possession of the NYPD, there will be no additional transparency or accountability.

On the other hand, NYPD Commissioner Bill Bratton seems to feel the state's public record law only applies to other government agencies. The NYPD currently ranks at the bottom of the list for city agency FOIL responsiveness. That seems unlikely to change if this is how the department responds to requests for footage.

"We have never released 911 calls, and video recorded by these officers, I think, would be under the same protection of not being released, even to FOIL requests," said Police Commissioner William Bratton.

Unfortunately, this response from the NYPD -- despite effectively pricing NY1 out of the market for these public records -- directly contradicts the commissioner's beliefs. Obviously, the NYPD FOIL team feels these documents are responsive to public records requests. However, it's more than willing to do whatever it takes to ensure this responsiveness remains in the realm of the theoretical.

Filed Under: body camera, fees, foia, nypd, public records

A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

from the a-comma-more-controversial-than-the-Oxford dept

The terrible tale of the missing comma and the damage done may soon come to an end. The EFF is calling on Congress to legislate this apparently missing punctuation back into its list of FOIA exemptions.

FOIA Exemption 7(E) reads as follows, in reference to the withholding of documents:

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

Some courts have read this paragraph as a continuation of a single thought.

The first interpretation, which EFF believes is the right one, reads the entire sentence as being subject to the last clause that states "if such disclosure could reasonably be expected to risk circumvention of the law." In other words, records concerning both "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions" can only be withheld if "disclosure could reasonably be expected to risk circumvention of the law."

This subjects FOIA rejections to a higher standard, requiring both sets of documents ("techniques and procedures," "guidelines") to be proven to be circumvention risks if released. The other reading of this sentence with the crucial missing comma affords the first set of documents ("techniques and procedures") blanket protection from FOIA requests.

The second interpretation, which the Ninth Circuit adopted in Hamdan, starts by noting that there is a comma between "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions." Because of that comma, the courts reason, the two categories of records are distinct. Next, the courts note that there is no comma between "guidelines for law enforcement investigation or prosecutions" and the phrase "if such disclosure could reasonably be expected to risk circumvention of the law."

Under this interpretation, the Hamdan court reasoned that because there is no comma between the circumvention risk clause, and because Exemption 7(E) treats "techniques and procedures" and "guidelines" as two distinct categories of records, the circumvention risk clause applies only to the "guidelines" category of records. Or, to put it another way, the lack of a comma in the second half of the exemption means that "techniques and procedures" can be withheld without agencies having to show that "disclosure could reasonably be expected to risk circumvention of the law."

The EFF's solution to the disparate interpretations is to hand the list of exemptions back to Congress and have it insert a comma, bringing both sets of records under the same standard for rejections.

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions[,] if such disclosure could reasonably be expected to risk circumvention of the law

Now is the time to do it. Congress is once again considering FOIA reform legislation. The EFF has sent a list of suggested fixes to the bill to Congressional representatives. FOIA reform is a yearly tradition, the EFF notes, but has generally resulted in yet another year of FOIA status quo, despite proposed legislation routinely arriving at the start of every new Congressional session with broad bipartisan support.

This particular version contains some much-needed alterations to the government's favorite exemption: b(5). If passed intact, the new law would forbid the use of this exemption on documents more than 25 years old and, more importantly, prohibit use on so-called "deliberative process" documents that, in reality, carry the force of law or otherwise affect the same public that isn't being allowed to see this information.

Considering the amount of work facing Congress in its reform efforts, asking for the addition of a comma seems like very little to ask. Of course, it will have to go up against foes of FOIA reform like the DOJ, which would likely very much prefer the exemption maintain its current level of punctuation.

Filed Under: 7(e), comma, exemptions, foia, foia reform

FBI Finally Completes FOIA Request 1,393 Days After It Was Filed; Withholds All 509 Responsive Pages

from the lol-'responsive' dept

Michael Morisy -- founder of FOIA clearinghouse MuckRock -- has been waiting since February of 2012 for the FBI to hand over information on its GPS tracking devices. Specifically, Morisy was looking for information on any devices it deactivated/recollected after the Supreme Court (US v. Jones) declared the warrantless, long-term tracking of individuals could amount to a Fourth Amendment violation.

The decision didn't explicitly state GPS tracking devices now needed to be accompanied by warrants, but it was enough that the FBI began shutting down its 3,000 devices. (It turned most of them back on a month later after securing the proper paperwork. Only 250 or so were permanently switched off. And, of course, the FBI grumbled about having to obtain warrants for devices it had already deployed, because the Fourth Amendment doesn't do anything but slow down law enforcement.)

With that in mind, Morisy asked for this:

Any lists or logs of sites or locations where the FBI has or had GPS units positioned for monitoring or surveillance purposes. If revealing the exact locations is exempt, please redact exempt information and release cities and states where devices are located.

If multiple years of logs are kept, pleas release all logs or lists created since 2005, focusing on the most recent or up to date logs or lists.

The pullback of the GPS Surveillance Program was acknowledged by FBI General Counsel Andrew Weissmann recently. If there is a list, tally or log of GPS devices being deactivated in the wake Supreme Court Ruling U.S. v. Jones, that list, tally or log may be substituted instead of searching for older records.

1,393 days later, the FBI has finally fulfilled his request in full. While it did spring some stuff loose in April, the remaining disputed documents were finally released 3 years, 9 months and 24 days after Morisy requested them.

And what was turned over to him in the final, long-delayed batch were two PDFs containing nothing more than a long list of pages the FBI isn't going to be releasing.





In total, ten printed pages containing lists of pages being withheld -- 509 pages in total the FBI has decided it doesn't have to release.

What was released earlier in the year is similarly useless. There's nothing about the GPS units. Almost everything contained in those documents pertains to GPS device training. And even in those, nearly nothing made its way past the FBI's redaction unit.

Still, there are a few hints as to what the FBI thought it had to do to mitigate Fourth Amendment concerns when deploying GPS tracking devices.

Follow this one simple [redacted] trick to avoid having your evidence thrown out!


[In hindsight, the "No supression" note was a bit too optimistic...]

Combine these two items for simple deployment, neither of which is a warrant.


This is the FOIA process. Anyone can play, but the government still holds the cards and deals from the bottom of the deck. Even the long-delayed, fully-withheld documents don't appear to be the information Morisy specifically asked for. One is titled "Manufacturer Materials." The other, "FBI Policy Section 2." Nothing returned in response to this request actually appears to be "responsive" in the traditional sense of the word. And it took the FBI most of four years to finally complete its (possibly purposeful) botching of Morisy's request.

Filed Under: fbi, foia, gps tracking, gps tracking devices, redactions, responsive, transparency