UK Government Spends Three Years And Large Sums Of Money To Avoid Revealing The Number '13'

from the pollutant-of-publicity dept

As we pointed out last month, the UK government is hoping to hamstring the country's Freedom of Information laws to make it much harder to dig out facts and thus hold politicians to account. In the meantime, it is going to absurd lengths in order to avoid responding to even the most harmless of requests, as this story from the BBC's Social Affairs Correspondent, Michael Buchanan, makes plain. Here's the background:

Back in 2010, the [UK's] coalition government were trumpeting a new red tape-busting cabinet panel, the Reducing Regulation Committee. I suspected that it was all froth and no action, so in 2012 I asked how often they had met since the committee's creation.

Nothing very threatening there, you might think, but the UK government refused on the basis that disclosing this magic number would "impinge on cabinet collective decision-making". So Buchanan appealed -- first, to the Cabinet Office, the department he had made the request to, where he was turned down, and then to the UK Information Commissioner's Office (ICO), which oversees this whole area of government transparency. Here's what happened:

Merry hell ensued. The ICO found in my favour, the Cabinet Office appealed, lost, appealed again, won, the ICO appealed for me, won, etc. Back and forth it went for three years. At one point, the government called in the fearsome-sounding "Treasury Devil", the so-called Star of the Bar, James Eadie QC [Queen's Counsel], to argue their case.

The "Treasury Devil" may or may not be fearsome-sounding, but he is certainly fearsomely expensive -- think top-class corporate lawyer expensive. In other words, the UK government was willing to spend many, many thousands of pounds of taxpayers' money in order to keep the number of meetings of an obscure committee secret. An earlier post by Buchanan reveals one of Eadie's devilish attempts to fend off the FOI request. The government's lawyer argued that:

publicly revealing how often a cabinet committee meets would harm the workings of government by introducing the "pollutant of publicity".

But in the end, the UK's Information Rights Tribunal was undaunted by the Treasury Devil and his artful alliterations, and it rejected the government's final appeal, going so far as to issue:

a strongly worded judgment which described the Cabinet Office's approach as "irresponsible", its key witness as "evasive and disingenuous", and her evidence as "of no value whatsoever".

And so, a mere three years and five months after he submitted his FOI request, Buchanan could finally write:

I'm now in a position to exclusively reveal to you, dear reader, that between 2010 and 2012, the Reducing Regulation Committee met on a total of 13 occasions.

And he adds:

Ministers are currently pondering whether to put restrictions on the Freedom of Information Act. In the meantime, how much it cost in legal fees to refuse my request for three years will be the subject of my next FOI request.

Well played, sir.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: foia, information commissioner's office, journalism, michael buchanan, red tape, reporting, secrecy, uk

UK Home Secretary Wants Everyone's Metadata; But If You Ask For Hers, Gov't Says You're Being Vexatious

from the funny-how-that-works dept

Theresa May, the UK Home Secretary who seems like a comic book version of a government authoritarian, is leading the charge in the UK for its new Snooper's Charter, officially called the "Investigatory Powers Bill," that is filled with all kinds of nasty stuff for making it easier for the government to spy on everyone. Among the many problematic elements is the demand for basically everyone's metadata. May dismissed the concerns about this by saying it's nothing more than "an itemised phone bill." Given that, Member of Parliament Keith Vaz noted to May that people might be interested to see May's itemized phone bill.

Soon after that, we noted that UK resident Chris Gilmour sent in a FOIA request for May's metadata. Specifically, he asked for the following:

1) The date, time, and recipient of every email sent by the Home Secretary during October 2015.

2) The date, time, and sender of every email received by the Home Secretary during October 2015.

3) The date, time, and recipient of every internet telephony call (e.g. "Skype" call) made by the Home Secretary during October 2015.

4) The date, time, and sender of every internet telephony call (e.g. "Skype" call) received by the Home Secretary during October 2015.

5) The date, time, and domain address of every website visited by the Home Secretary during October 2015.

Not surprisingly, it appears he was not the only one to do so. UK newspaper The Independent sent in a FOIA request asking for:

... the web browser history of all web browsers on the Home Secretary Theresa May's GSI network account for the week beginning Monday 26 October. Feel free to redact any web addresses relating to security matters."

There may be other such requests as well -- but both of these requests got back the same basic response from the UK government. In both cases, the government rejected the requests, claiming they were "vexatious." Here's the response to Gilmour's:

We have considered your requests and we believe them to be vexatious. Section 14(1) of the Act provides that the Home Office is not obliged to comply with a request for information of this nature. We have decided that your request is vexatious because it places an unreasonable burden on the department, because it has adopted a scattergun approach and seems solely designed for the purpose of ‘fishing’ for information without any idea of what might be revealed.

The requests are similar in nature to a request the Home Office received in 2014 that the Information Commissioners Office (ICO) agreed was vexatious. The decision notice in question can be found at this link: https://search.ico.org.uk/ico/search/decisionnotice?keywords=FS50544833

Guidance issued by the ICO on vexatious requests can be found at this link: https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious- requests.pdf

It appears that The Independent got an identical response (word for word). The folks at The Independent seem reasonably annoyed by this.

While the Government is widening its own powers to access the information of citizens, it is watering down the public’s right to access the Government’s information.

Either way, there seems to be a legitimate question to ask Theresa May: if there's no big deal about having the government go through your metadata and it's "just like an itemised phone bill," then why is it so "vexatious" for the public to ask for May's metadata?

Filed Under: data retention, foia, freedom of information, home secretary, investigatory powers bill, ipbill, metadata, public records, snooper's charter, surveillance, theresa may, uk, vexatious

Legislator Looking To Force Government Agencies To Release FOIAed Documents In Their Original Formats

from the I-asked-for-data,-not-a-useless-sheet-of-paper dept

This is an important step forward for (forced) government transparency. A Colorado legislator is introducing a bill that would require government agencies to stop paying lip service to transparency with their purposefully-hobbled FOIA responses. Arthur Kane at Watchdog.org has the details.

A state senator plans legislation next session requiring that electronic databases be released in the same format as governments are keeping them. This comes after open records advocates asked why some government agencies are making their records less transparent.

Denver and other governments often provide databases and spreadsheets in locked PDF formats, even when the records are maintained in Microsoft Excel, Access or other formats, which make them easier to sort and analyze.

State Sen. John Kefalas, D-Fort Collins, met with members of the Colorado Freedom of Information Coalition last month. He said he expects to have language this week to file an early bill.

Hopefully, his proposal will become law. This sort of FOIA reform is needed in every state, as well as at the federal level.

Documents released by the NSA and FBI are often delivered in unsearchable PDFs, made from what look like 7th-generation copies created by a faulty mimeograph and forced through a malfunctioning scanner during an earthquake. This makes it much harder for researchers, journalists and activists to perform keyword searches of released documents, much less accurately track redaction inconsistencies or evolving legal arguments. This is deliberate.

This legislation would also prevent people like Kentucky county clerk Kim Davis from waving a white flag in the face of technology and claiming they have no choice but to convert emails to hard copy (and charge duplication fees).

Government agencies shouldn't be format shifting responsive documents. Sure, some of this can be chalked up to ignorance. But a lot more can be chalked up to deliberate efforts to make responsive documents as useless as possible for requesters. Watchdog requested staff salaries and contract info from the city of Denver and got printouts of the spreadsheets in PDF form. Sure, it got the data it wanted, but with none of the usefulness of the original document in its original format.

Unbelievably, government agencies that have refused to provide databases, spreadsheets, etc. to FOIA requesters claim these actions are taken to "maintain the integrity of the data." Really? Are they sending requesters the only copy of the data? Are they somehow convinced the release of a database or spreadsheet would corrupt the data stored on their local drives? This excuse makes no sense.

I'm guessing it's supposed to mean that anyone can alter a spreadsheet after receiving it in response to a FOIA request and make it appear as though it states something the original actually doesn't. But that could easily be solved by posting the same document in its original format at the agency's website. That way anyone can verify the accuracy of FOIAed documents posted elsewhere by private parties.

As for the other excuse given, Kefalas' proposed legislation is the rebuttal.

[C]ity attorneys say case law doesn’t allow the requester to choose the format of the records.

If everything goes as planned, the city will have to give up its reliance on case law and follow the actual law.

Filed Under: colorado, electronic documents, foia, format, john kefalas, readable

Another Politician Attempts To Build A Wall Between The Public And The Police Who Serve Them

from the cops-need-to-have-rules-all-their-own dept

Body camera footage is a great tool for law enforcement accountability. But all the potential good can all be undone by ensuring the public has no access to the recordings. If recordings become just another internal "document," nothing has been gained by the addition of body-worn cameras.

That outcome is perfectly fine with some legislators, like Michigan Senator Rick Jones.

A House bill that would exempt police body camera video from being released to the public under Michigan's Freedom of Information Act is raising red flags among some attorneys and civil libertarians.

The proposal by Sen. Rick Jones would amend Michigan's 1976 Freedom of Information Act by keeping police body camera audio and video shielded from public disclosure.

Of course, Rick Jones -- a former sheriff with 31 years in law enforcement -- sees nothing wrong with preventing the public from keeping an eye on their public servants. This isn't being done to shield officers from accountability, according to Jones. No, this is being done to keep cops from being mocked by infamous cop-basher, the Internet.

"This is a first step and it will be tweaked,'' he said. "All of the police I have talked with believe that there are many times that private moments are filmed and it's not the sort of thing you want somebody to FOIA and then put on the Internet for entertainment, for people to laugh at.''

Jeezus. Got some very sensitive individuals hiding behind badges, bulletproof vests and FOIA exemptions. I think most would rather be laughed at than reviled. If the worst thing that happens to Michigan cops is a few embarrassing moments (and a host of just-as-embarrassing comments below them) being uploaded to YouTube, they should be grateful. It's far better than having footage of misconduct or excessive force circulating the 'net.

Even the senator's ostensible opponent -- the Michigan ACLU -- agrees that some footage should be exempt from public records requests.

"If the police are sitting in their squad car talking to one another about their personal matters – that doesn't need to be on YouTube,'' [ACLU's Miriam] Aukerman said. "If police go to someone's home and tell them your child has died or your child's been in an accident, that doesn't need to be out in the public.''

Jones says the wording will be "tweaked," but it's unclear how much of it. So far, he's only talked to police officials and officers about their perspective. Until that changes, nothing in his amendment will either. As it stands now, the untweaked version grants a blanket exception to all body camera footage without exception. The following would be added to the list of items Michigan citizens can't obtain via FOIA requests:

(Z) AN AUDIO AND VIDEO RECORDING RECORDED BY A BODY-WORN CAMERA WORN BY A LAW ENFORCEMENT OFFICER IN THE COURSE OF HIS OR HER DUTIES AS A LAW ENFORCEMENT OFFICER.

An earlier bill introduced by a Michigan representative in the House asked for a much slimmer exemption -- footage recorded in private homes. Jones wants it all exempt. Supposedly, he'll be meeting with the ACLU and other interested parties to discuss changes to the wording.

We'll see how much he's willing to budge, considering there's only room on his side for concessions. I'm guessing it won't be much. Jones didn't get named "Legislator of the Year" by the Michigan Association of Chiefs of Police for nothing. He was the one who safely shepherded the state's asset forfeiture "reform" bill through the legislature -- one so badly-neutered by law enforcement meddling that the Michigan Association of Police Officers actually endorsed the final version.

Filed Under: body cameras, foia, michigan, police, public, rick jones

Chicago's Mayor Promises New Era Of Transparency After Shooting Video Forced Out Of City's Hands By Court

from the [airquote]-REFORM-[/airquote] dept

A Chicago police officer shot Laquan McDonald as he walked away from him, carrying a knife. Officer Jason Van Dyke emptied his service weapon in McDonald's direction less than 30 seconds after his vehicle arrived on scene. McDonald was hit 16 times, with a majority of those coming after he was already laying on the ground.

The dashcam video -- buried by the city for 13 months as it fought Uber-driving citizen journalist Brandon Smith's FOIA lawsuit -- directly contradicted reports written by multiple officers.

The report quotes Van Dyke saying: “(Laquan), raised knife across chest over shoulder, pointed knife at (me)…(I) believed (Laquan) was trying to kill (me).”

Van Dyke’s partner and driver, Officer Joe Walsh, raced around the car, pointed his weapon but didn’t shoot. He told an investigator he: “believed (Laquan) was attacking Van Dyke with knife attempting to kill (him).”

In the video released two weeks ago, Van Dyke and Walsh are seen driving up, as McDonald walks down the centerline of Pulaski Road, the officers getting out of their SUV and Van Dyke almost immediately opening fire on McDonald as he angled away from them.

Officer Dora Fontaine said:”(Laquan) raised (his) right arm toward (Van Dyke) as if attacking (him).”

The dashcam video was buried so the official narrative could take hold: a threatened officer killed a man in self-defense. To aid in this, a nearby Burger King was raided by officers to confiscate footage caught by its CCTV cameras.


This footage was eventually released as well, but every recording from every Burger King camera included an 80-minute gap covering the time the shooting took place.

The released dashcam video flipped the narrative. It was no longer Officer Van Dyke defending himself from a dangerous suspect. It was Officer Van Dyke dumping 16 bullets into a person walking away from him. Van Dyke was charged with murder shortly before the video was released. Had the court not ordered the release of the video, it's very likely Van Dyke would still be employed by the Chicago PD and not facing any criminal charges.

The mayor's office immediately went into damage control mode, immediately throwing Police Superintendent Gerry McCarthy under the nearest bus. Notably, Mayor Rahm Emanuel claimed McCarthy was a "distraction," rather than the failed "leader" of a police force that ran its own "black site" and has been synonymous with abuse and corruption for years.

Critics also noted Emanuel had fought the release of this video for months, dating back to his re-election run where he claimed its release would "taint" a federal investigation.

Rahm Emanuel wants to have it both ways: defend his city's frequently horrendous police force and be the bold reformer who will finally clean up the cesspool it's become under his (and his predecessors') watch. Consequently, he's failing at both.

The police already see Emanuel as a fair-weather tool of the media and general public -- much like most politicians. The public's view of Emanuel is nearly identical, even if it's more concerned about the city's cops, rather than for them.

His apparent complicity in the recording's cover-up make his new claims of unprecedented transparency very suspect. So do his actions.

Brandon Smith, who forced the video out of the city's hands, wasn't notified by the city that the video was being released. He ended up locked out of the press conference announcing the release because he had no press credentials. Officials issuing statements on the release never mentioned his name.

This doesn't sync up with the mayor's public statements:

Mayor Rahm Emanuel proclaimed the arrival of a fresh new era of sincerity and openness concerning policing in Chicago. "I know that personally, I have a lot of work to do to win back the public’s trust, and that words are not enough," the mayor told the City Council.

Referring to the video of the fatal shooting of Laquan McDonald by Chicago police officer Jason Van Dyke, Emanuel said: "Every day that we held onto the video contributed to the public’s distrust. And that needs to change."

And he wasn't content to wait for change, he made clear: "It starts today. It starts now."

"Now" is a meaningless word in Mayor Emanuel's mouth, as Steve Bogira of the Chicago Reader points out.

The mayor fought for months to suppress the video showing the slaying of the 17-year-old McDonald. And now he's continuing to fight to suppress videos of the fatal police shooting of 17-year-old Cedrick Chatman almost three years ago.

The video Bogira is seeking involves Officer Kevin Fry, who has a history of shooting unarmed citizens and being named in civil rights lawsuits. Chatman was carrying an iPhone box. In 2007, he shot an unarmed 17-year-old because he believed he was reaching for a gun. It turned out to be the teenager's belt buckle. In that case, the teen who was shot received a $99,000 settlement.

Emanuel's new transparency apparently hasn't filtered down to the PD. Bogira notes its FOIA denial tactics remain largely unchanged.

The police department is on even shakier ground in withholding the Chatman videos. There is no ongoing criminal investigation: the state's attorney's office in May 2013 declined to prosecute Fry, citing "insufficient evidence of criminal intent." Nor is there a pending disciplinary investigation: in June, IPRA closed its investigation of Fry, concluding that his shooting of Chatman was justified.

Bogira may be expecting a bit too much from a PD likely besieged by FOIA requests, but he's not wrong to call out the mayor for talking big about reform while doing nothing to ensure his works are followed by meaningful actions. The new transparency will likely last only as long as it has to -- until the furor dies down, the DOJ packs up and heads back to Washington, and everyone can go back to pretending gunning down citizens is just the natural side effect of everyday police work.

Filed Under: chicago, foia, gerry mccarthy, jason van dyke, laquan mcdonald, police cameras, rahm emanuel, transparency

Spanish Government Using Obstructionism And Bureaucracy To Nullify Transparency Law

from the the-pain-in-Spain dept

For obvious reasons, many politicians hate the whole idea of allowing freedom of information requests. Former prime minister Tony Blair, whose government brought in the UK's Freedom of Information Act, said he bitterly regretted doing so. As he wrote in his autobiography:

Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.

The problem for governments that hate the scrutiny that FOI laws bring is that it looks a bit suspicious to kill off the right where it already exists -- cynics might think they have something to hide. So the question politicians obviously ask themselves is: how can we throttle FOI laws without making it too obvious?

In the UK, the government hopes to achieve this by asking for a report on the FOI system from an "Independent Commission on Freedom of Information" that is largely made up of people who are no great friends of the idea, pretty much guaranteeing a negative outcome. In addition, the terms of reference of the Commission make it clear that the exercise is about reining in the public's right to information, not expanding it.

Here's how the Slovenian government is tackling the problem of that pesky FOI stuff -- make it expensive:

The European Federation of Journalists (EFJ) together with its affiliate, the Slovenian Journalists’ Association (DNS), Transparency International Slovenia and Access Info Europe, have today called on the Slovenian Parliament to reject a last-minute amendment that permits public officials to charge for their time in answering freedom of information requests, something that would be direct interference with the right of journalists and NGOs to access information.

But these approaches pale in comparison to the cunning scheme adopted by the Spanish government. Access Info Europe has just announced that it is closing down its online service designed to help people make FOI requests in the country. Here's why:

It is with huge reluctance that Access Info Europe and Civio today announce the closure of the request website "Tu Derecho a Saber" (Your Right to Know) because the need to have an electronic ID and the refusal to respond to emails is making it impossible to help the public send requests.

In the first year of implementation of Spain’s much-criticised transparency law, we processed requests manually, using Civio’s electronic ID to send them via the central Transparency Portal’s complex verification systems, something that was taking up to a few hours per day.

On 10 December 2015, as the law comes into force at the regional and local level, we are faced with the prospect of hundreds of different systems across the country. To make things more complex, the design of the regional and local portals, the ID system required, and the online forms used, differ from one administration to the next.

You have to admire the Spanish government's sense of irony here. Freedom of Information, a system designed to make governments more transparent, is being strangled and rendered almost unusable by the opaque and labyrinthine bureaucracy that has been built around it. Tony Blair would be proud.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: foia, spain, transparency

Appeals Court Says Secret Drone Memos Can Stay Secret

from the for-the-good-of-the-uninformed-nation dept

The Second Circuit Court of Appeals has ruled that certain legal memos justifying the government's drone strikes can remain secret. The long-running FOIA lawsuit involving the New York Times and the ACLU has been covered previously here. At the center of this FOIA lawsuit are more than 100 legal opinions from the DOJ's Office of Legal Counsel (OLC) that provide the legal argument for the extrajudicial killing of suspected terrorists.

A few of these documents have made their way into the public's hands, thanks to the two plaintiffs, aided in no small part by government officials citing the memos in other documents and commenting publicly about the drone strike program.

But there are still a few memos being held back. The "most transparent administration" has been very active in ensuring the Freedom of Information Act doesn't live up to its stated ideals. Nine of these memos have been officially buried by the Appeals Court, which apparently believes the government when it says the legal guidance memos it uses to justify its drone strike program are nothing more than "discussions" with lawyers that are exempted from disclosure. Brett Max Kaufman at Just Security points out the flaws in the court's rationale.

In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”

Both sides of this "discussion" (OLC, Obama administration) continue to claim there's nothing binding in these memos when fighting to keep them secret, but both treat the secret documents as binding. The court, however, has resolved these contradictory statements in favor of the government.

On top of that -- via reasoning almost completely hampered by the court's inability to disclose almost anything about the disputed documents or the government's ex parte submissions and in camera discussions -- the court has chosen to allow one of the most controversial memos to remain in the government's possession.

[T]he Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir.

According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something.

This memo apparently contains the OLC's justification for the extrajudicial killing of targets "outside of recognized battlefields." According to Kaufman, the memo also likely contains the DOJ's "workaround" to bypass the restrictions on "assassinations" contained in Executive Order 12333. If so, these justifications would very much be of public interest, while simultaneously being something the administration (this one or the last one) would have no interest whatsoever in making public.

The Freedom of Information Act wasn't passed with the intention of making the government only as transparent as it wants to be. It was a forced change. The government didn't voluntarily decide to grant the public access to its inner workings. Siding with the administration by buying into its "discussions with counsel" arguments subverts the spirit of the law by using the letter of the law against the public.

Filed Under: doj, drone memo, drones, foia, olc, second circuit, secrets
Companies: aclu

Government Ducking Even More FOIA Requests By Refusing To Ask For Official Legal Guidance

from the agencies-stood-together-to-ensure-OLC-stood-apart dept

The Freedom of Information Act was put into place to give us a more accountable government. The theory was that more transparency would lead to better governing. Our public servants would know their activities were open to scrutiny and might start acting like their employers were watching over their shoulders.

Instead, our public servants focused their time and effort on finding creative ways to hide the same stuff they're obligated by law to reliquish. Instead of a better governing, we got private email servers, excessively-abused FOIA exemptions, revamped records retention policies and the erection of massive paywalls when all else failed.

This instinct to dodge, rather than deliver, bleeds into every agency in the federal government. The fear of FOIA requests has led agencies to avoid committing anything to paper -- either of the dead tree variety or composed of pixels and residing in an FOIA-able digital inbox. This includes the sort of thing that one would assume government agencies would want in writing: official legal opinions on agencies' programs and activities.

Concerns about legal opinions being made public under the Freedom of Information Act are leading various parts of the federal government to stop asking for written advice from the Justice Department's Office of Legal Counsel, a top Obama administration lawyer said Thursday.

"I think that has served as a deterrent to some in terms of coming to the office to ask for a formal opinion," said Central Intelligence Agency General Counsel Caroline Krass, who spent more than a decade at the Justice Department office that issues legal advice for the executive branch.

So, we have an Office of Legal Counsel that's been reduced to issuing verbal blessings for government activities. Not only does this keep the government's official legal justifications secret, but it prevents a) FOIA requesters from obtaining a copy and b) the legal opinion being used against the government in litigation. Josh Gerstein's article for Politico notes the number of official OLC opinions has declined steeply over the last several years, with the total number released over the last three years (29) barely topping 2009's release total (28).

The OLC admits it is issuing far fewer formal opinions. At the same time, it claims its secret opinions, delivered orally or via email, are just as binding. That may be great news for those with inside access, but for everyone else, it's just another door being slammed in their face.

But there's another reason the OLC is offering fewer formal opinions: the administration -- along with several other government agencies -- feel they're better served by working around this independent office. From Jack Goldsmith -- former Assistant Attorney General and member of the Office of Legal Counsel -- writing for the Lawfare blog:

Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions. A few people have told me that OLC simply has no place at the table in important national security decisions.

[...]

I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations.   And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.

The guidance of independent legal counsel could also result in better governing. But it's not going to change anything if many of the most powerful people in Washington consider its opinions to be liabilities, at best. The OLC obviously doesn't have any pull -- at least not with this administration. Judging from Goldsmith's comments in his post, it appears that power was on the wane throughout much of the previous administration.

In the end, it's just another way for the federal government to cut the public out of the loop. The government seems to really like other people's money and the power that comes with the positions, but has nearly no enthusiasm for accepting the additional responsibilities that come with the territory.

Filed Under: doj, foia, government, legal guidance, olc, transparency

DOJ Has Blocked Everyone In The Executive Branch From Reading The Senate's Torture Report

from the this-is-ridiculous dept

A year ago, we were writing a ton on the famed Senate Intelligence Committee's torture report. This report, which Committee staffers spent years on, cost $40 million, and clocked in at nearly 7,000 pages of detailed analysis of the US's hugely questionable (both morally and legally) torture program in the wake of 9/11. After much fighting, the Senate finally released a heavily redacted executive summary, but since then there have been some questions about what happens with the full report. Senator Dianne Feinstein, who was (believe it or not!) the driving force behind the report, had copies of the full report delivered to the Defense Department, the CIA, the State Department and the Justice Department. However, there has been a lot of confusion over whether or not anyone actually read it. The DOJ clearly announced that officials had read the whole thing... but later claimed that no one had even opened the report. Obviously, the DOJ lied with one of those statements.

There had been some hope that ex-Senator Mark Udall might choose to release some of it from the Senate floor before leaving office, but that didn't happen.

And, with the changing of the guard, the new head of the Senate Intelligence Committee, Richard Burr, demanded that all the federal government agencies that received the report should return it to him so he can destroy it and make sure that no one ever sees what's in the report. As we noted, however, this whole thing seemed to be an effort to state publicly that the document was a Congressional record. That matters because Congressional records are not subject to FOIA requests. Executive branch records are subject to FOIA requests -- and the ACLU has made a FOIA request to the exec branch for a copy of the report.

The DOJ has taken Burr's lead and claimed that the report is a Congressional record, and that's also why they insist that no one at the DOJ has opened it -- to maintain that it has not become an executive branch record subject to FOIA. Not surprisingly, Senator Feinstein is pissed off about this -- because her staffers spent years putting together this report, detailing massive abuses by the CIA and others in torturing people, and the whole point of it was to help the government learn how badly it messed up and to stop it from doing it again. But if no one reads it, then that won't happen. And, the DOJ now says that not only has it not read it, it has instructed everyone in the exec branch not to read it for fear that reading it would make it subject to FOIA:

Nearly a year after the Senate released a declassified 500-page summary of the report, the fate of the entire document remains in limbo, the subject of battles in the courts and in Congress. Until those disputes are resolved, the Justice Department has prohibited officials from the government agencies that possess it from even opening the report, effectively keeping the people in charge of America’s counterterrorism future from reading about its past. There is also the possibility that the documents could remain locked in a Senate vault for good.

Senator Feinstein (along with Senator Pat Leahy) has sent a rather angry letter (reasonably so!) to Attorney General Loretta Lynch, expressing her strong displeasure over this state of affairs:

Dear Attorney General Lynch and Director Comey:

We firmly believe that appropriate DOJ and FBI officials must read the full 6,700-page Senate Intelligence Committee Study of the CIA's Detention and Interrogation Program in order to understand what happened and draw appropriate lessons. This is exactly what Director Comey promised during his testimony before the Senate Appropriations Committee on March 12, 2015, when he said he would designate FBI officials to read the full, final version of the Committee's Study and consider the lessons that can be learned from it. Director Comey also acknowledged that former FBI Director Bob Mueller ordered FBI agents not to participate in the CIA program. Unfortunately, as the executive summary of the Study makes clear, the Department of Justice was among those parts of the Executive Branch that were misled about the program, and DOJ officials' understanding of this history is critical to its institutional role going forward.

We are gravely disappointed that, according to Assistant Attorney General Peter Kadzik's letter dated August 5, 2015, the Department of Justice is citing a Freedom of Information Act (FOIA) case, ACLU v. CIA as an excuse to refuse to allow Executive Branch officials to review the full and final Study. This DOJ decision prevents the FBI and other parts of the Executive Branch from reading the full 6,700-page Study and learning from the mistakes of the past to ensure that they are not repeated. Further, personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.

The record in the FOIA case does not support DOJ's decision. According to the court filings in the FOIA case, DOJ represented that it would "preserve the status quo" pending appeal, but the context in which that commitment arose makes clear that DOJ was agreeing not to return the Study to the Senate Intelligence Committee. DOJ's commitment not to return the Study while the FOIA litigation is pending in no way precludes appropriately cleared individuals in the Executive Branch from reading the Study. We urge that you reconsider your position and disseminate the full and final Committee Study to appropriately cleared senior individuals in the Department of Justice and FBI, and instruct other appropriate federal departments to take the same position. For the same reason, we urge you to explicitly commit to retaining copies of the full 6,700-page Study.

We hope you agree that the legacy of this historic report cannot be buried in the back of a handful of Executive Branch safes, never to be reviewed by those who most need to learn from it. We look forward to hearing from you on this important issue.

The DOJ's argument that it has to block anyone from reading the document, lest it magically switch from a Congressional document to an executive branch one is apparently puzzling to experts.

“It’s quite bizarre, and I cannot think of a precedent,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. He said there are any number of classified Senate documents that are shared with intelligence agencies and remain as Congressional records, even if they are read by members of the executive branch.

But it's not at all bizarre when put into the simple context of recognizing that this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality). This is just another way to avoid facing up to the mistakes of the past, and conveniently using a FOIA lawsuit as a method for making sure this information remains in the dark.

Filed Under: dianne feinstein, doj, foia, loretta lynch, richard burr, senate intelligence committee, torture report

NYPD Wants $42,000 To Turn Over Documents Related To Discharges Of Officers' Firearms

from the The-Man-sticks-it-to-the-public...-again dept

The NYPD is jerking around FOIL (Freedom of Information Law) requesters again. Usually, the NYPD just pretends it's the CIA (somewhat justified, considering its hiring of former government spooks) and claims everything is so very SECRET it couldn't possibly be edged out between the multiple exemptions it cites in its refusals.

It tried the usual deflectionary tactics with Shawn Musgrave, who's seeking the department's mandatory reports on firearms discharges by its officers. After five months of promising to get to his request, the NYPD finally sent out a response letter denying him access to every document he requested, citing a plethora of FOIL exemptions.

While the NYPD may be (purposefully) terrible at remembering pertinent FOIL-related court decisions, Musgrave isn't. He quickly responded with this:

The NYPD FOIL office has not claimed inability to find the requested 24-hour and 90-day reports following firearm discharges for 2010 through 2014. Rather, the NYPD errantly claims that these documents are exempt from release under FOIL for a variety of reasons.

All of the cited exemptions are categorically incorrect. No less an authority than the Supreme Court of the State of New York has ruled as much in a case that is virtually identical to the present request.

In January 2009, the New York Civil Liberties Union submitted a FOIL request to the NYPD for 24-hour and 90-day shooting incident reports from 1997 through 2008 (see http://www.nyclu.org/case/nyclu-v-nypd-seeking-access-police-shooting-incident-reports). As you can see from my original request, these are precisely the same documents I seek.

The NYPD rejected that request, claiming that such reports were exempt from disclosure pursuant to:
1) Public Officers Law 87(2)(a), New York Civil Rights Law 50-a(1);
2) Public Officers Law 87(2)(b) and 89(2);
3) Public Officers Law 87(2)(e)(i-iv);
4) Public Officers Law 87(2)(f);
5) Public Officers Law 87(2)(g);

Conveniently, these are the same exemptions by which the NYPD FOIL office has rejected my present request. I will allow Judge Goodman's ruling in the NYCLU case (see http://www.nyclu.org/files/releases/NYCLU%20v%20%20NYPD%20Shooting%20FOIL%20decision%202-14-11.pdf) to address the invalidity of the NYPD's response in my own case:

"The issue is whether the 24-hour and 90-day firearms discharge incident reports are categorically exempt from disclosure under FOIL. After a careful review of the NYPD Firearms Discharge Manual containing the 28 section form for the 24-hour and 90-day firearms discharge incident report, the Court finds that these reports are not categorically exempt."

Having been reminded that the Supreme Court of its home state had previously said it couldn't do the very thing it was attempting to do, the NYPD's FOIL team regrouped. A month later it finally admitted Musgrave's appeal had been accepted. Three weeks after that, it told him it could have all the documents the state's highest court had declared any citizen could access... for the price of a late model SUV.

It is estimated that the copying fee for preparation of the requested copies, including redaction and copying thereof, is $42,000. Preparation of the copies will commence upon receipt of payment of in the form of a check or money order in the amount of $42,000, payable to New York City Police Department.

The response doesn't explain how the NYPD reached this dollar amount. It simply states that it is the dollar amount the NYPD will be charging and that nothing will be done until the money is in its hands.

Having failed to discourage Musgrave with its bogus exemption ploy, the NYPD has gone for another favorite technique of open records request-resistant agencies: pricing requesters out of the market. Musgrave will certainly be appealing this estimate, but until forced to back down by higher authorities, the NYPD has successfully managed to evade yet another records request.

Filed Under: fees, foia, nypd
Companies: muckrock