Government Displeases Journalists Who Rely On FOIA Requests With Plan To Release Documents 'To All' Simultaneously

from the a-win-for-the-public-somehow-a-'loss'-for-a-much-smaller-'public' dept

The US government has come up with a rather decent idea: rather than limit FOIA releases solely to the requesting party, why not release it to everyone simultaneously? On its end, this would possibly save it the trouble of dealing with multiple requests for the same information, as well edge it closer to the ideals of the Freedom of Information Act.

This isn't a new idea. Several UK government agencies already post responses to public records requests publicly, ensuring that these documents can be seen by as many people as possible. (Of course, this may change, considering the efforts being made to dial back the reach of the UK's open records law.) This decision makes sense, as the point of the FOIA is to provide records to the general public -- not just certain individuals who may or may not make them public -- in the interest of government transparency.

Oddly, there's been some backlash against this announcement, coming from some people who have somehow managed to prioritize their personal interest above the public interest.

“I do share the concern of other journalists that this could hurt the journalist who made the original request,” writes Washington Post Investigations Editor Jeff Leen via e-mail. “It could also affect long-term investigations built on a number of FOIA requests over time.”

“FOIA terrorist” Jason Leopold has big issues with the approach. “It would absolutely hurt journalists’ ability to report on documents they obtained through a FOIA request if the government agency is going to immediately make records available to the public,” writes the Vice News reporter via e-mail. Leopold has already experienced the burn of joint release, he says, after requesting information on Guantanamo Bay. The documents were posted on the U.S. Southern Command’s Web site. “I lost the ability to exclusively report on the material even though I put in all of the work filing the requests,” he notes.

While I do sympathize with some of their concerns, I'm not all that impressed with the idea that public documents should somehow be considered proprietary, even when taking into consideration the effort made to obtain them. This argument basically boils down to journalists staking claims on public records, turning a government transparency tool into a scoop-generation device.

There's a downside to this proposed release system, but "losing" this "exclusivity" isn't part of it. Just because everyone will have access to the same documents at roughly the same time doesn't diminish the value of knowledgeable interpretations of the released information, especially if provided by the person who knew what to ask for and has considerable expertise on the subject matter.

What's more concerning is what the government is basically asking of FOIA requesters, while giving them very little in return. It's asking requesters to take the hit financially for the good of the nation -- a burden the government should be bearing, not members of the public. If requested documents qualify for the government's new "release to one, release to all" policy, then all associated fees should be waived -- no matter who is requesting them. The FOIA fee exemption applies to documents released to the public, rather than for commercial reasons. If the government is posting responsive documents "for all," even the most commercial of requesters should have all fees waived, no matter how many expenses are incurred fulfilling the request. (That the government even charges fees for public documents is still absurd, but for the sake of this argument, we'll pretend it's legit.)

More concerning is how often the government ties up FOIA requesters in litigation. This can generate significant expenses for the requester, who will never have the "unlimited" funds to battle tenaciously unresponsive agencies. It's a bit rich for the government to drag requesters through court, only to deny them whatever small financial benefits they may have received from "exclusivity" by dumping the documents into the public domain at the same time.

In addition, the government's more proactive approach will need to be watched closely. One method used to shake loose additional documents covering the same subject matter is to file multiple FOIA requests. If the government considers a single response to be final word on a particular subject, this new era of "transparency" will forever be burdened by the addition of scare quotes. It's well-known that certain agencies will knowingly perform incomplete/incomprehensive searches if they feel they can get away with it. When another request comes along looking for documents covering the same subject matter as a previous request (but with different search parameters), agencies may just point to existing online releases, rather than perform additional/more comprehensive searches that might result in new responsive documents.

Ultimately, the policy change will be a win for the greater public. A more transparent government has greater value than the perceived "exclusivity" of documents requested by media members. Hopefully, this new openness will trickle down to the many news outlets that still believe legal filings should only be quoted, but never posted where others (including competitors) can freely access them. There's a reason we include as many filings as possible when covering stories. There's no "exclusivity" in public records.

Filed Under: foia, journalism, transparency

How The FBI's Dysfunctional Search Systems Keep Information Out Of FOIA Requesters' Hands

from the what-part-of-'search-your-records'-are-you-purposefully-not-understandin dept

Thanks to yet another FOIA lawsuit, more evidence is being produced that suggests certain federal agencies employ labyrinthine systems that seem deliberately designed to keep requesters as far away as possible from responsive documents.

Trentadue v. FBI deals with the release (or lack thereof) of videotapes containing footage of the 1995 Oklahoma City bombing. Four days of oral testimony has at least partially exposed the search methods used by the FBI, which the agency uses as convenient information silos, rather than treat their central database as a cohesive whole. Reporters Committee for the Freedom of the Press points out that this "system" often leads to unfulfilled or partially-filled requests. FOIA requesters are often not aware that the FBI will do a half-assed job unless led by the nose through each of its databases and document systems. (via Unredacted)

The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records "systems" that they need to specify in order for a comprehensive search to take place. They might not know that the FBI typically only searches for the location of the main file related to an investigation as reported to headquarters, so reporters should also request cross-references, which are mentions of the subject of their request in investigations outside of the main file. While field offices have FOIA-trained personnel to assist RIDS (Records Information Dissemination System), reporters should also send FOIA requests directly to individual field offices they think are relevant to the investigation, because RIDS may only request documents from the field office associated with the main file.

On top of that, the FBI utilizes an obviously misnamed Central Records System (CRS) when responding to FOIA requests. Despite the name's suggestion that it a central repository of FBI records, it actually isn't -- not because the database doesn't contain the most of the records the FBI has compiled, but because it can be searched using three different methods, all of which will return different sets of documents. The "Automated Case Support" (ACS) is the tool used to search the CRS, but that search isn't unified.

The FBI's Central Records System (CRS) contains the "universe of records" the FBI has acquired in its law enforcement operations. According to trial testimony in the Trentadue case, the Automated Case Support system ("ACS") searches the CRS, and the ACS is split into three components: the Investigative Case Management system ("ICM"), the Electronic Case File ("ECF"), and the Universal Index ("UNI").

The ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves.

The FBI revealed in court that requesters basically need to know the systems as intimately as responding agents do if they expect to receive the entirety of what they're seeking. In Trentadue v. FBI, the FBI limited its search to UNI, rather than utilize the ECF, which would have found more documents thanks to its search of document text. The FBI told the court that its default method for FOIA responses is the more-limited UNI search and that it won't perform more thorough searches using other methods unless specifically asked to by the requester.

Not only that, but the FBI will decide what keywords to use when searching the database, unless required to do otherwise by the text of the request.

Testimony revealed that the one search of the CRS was made using the generic UNI keyword "OKBOMB," even though there was a wide range of keywords that could have been used in a text-based ECF search.

That's only one part of the FBI's FOIA obfuscation efforts. MuckRock's Shawn Musgrave points out that the FBI will often refuse to perform an extensive search until sued by the requester. Even worse, when knowledgable requesters have specified an ECF search, the FBI will sometimes refuse to follow this instruction.

And there's more to it than simply using the least-responsive search method by default. There's also evidence suggesting the FBI is keeping information out of requesters' hand by preventing the documents from being added to the Central Records System in the first place.

John Solomon of the Associated Press in 2004 documented the existence of so-called "I-Drives" used by the FBI, which were file-sharing drives used in the course of case management but which defense lawyers said could be used to withhold evidence. Testimony showed that the I-Drives have been replaced by "S-Drives," which serve essentially the same function. Trentadue alleges the FBI failed to search S-Drives for records responsive to his FOIA request.

Finally, as if the previous information uncovered during oral testimony wasn't damning enough, this case is on hold as the court examines witness tampering claims against the FBI, which allegedly instructed a former agent not to testify at this trial. Apparently, even the FBI's former personnel can't be "searched" properly for information, not even by the courts.

Filed Under: doj, fbi, foia, search, trentadue

If You're Looking For A Laborious, Unresponsive Way To File FOIA Requests, The DHS Has An App For You

from the Y2K-COMPLIANT! dept

The DHS isn't the most responsive government agency when it comes to FOIA requests. In fact, this government in general isn't very responsive when it comes to FOIA requests. So, it's completely understandable why its brand new FOIA app is similarly unresponsive.

First off, searching the Google Play store for "DHS" or "FOIA" will NOT find the app. If you use both those words together, however, you'll find it at the top of the list. Clicking through brings you to the app's page, which shows that whatever the DHS paid for its development, it's going to be awhile before it ever returns whatever passes for ROI in publicly-funded app giveaways. 10+ downloads. That's hardly a sign of widespread adoption.

Once you click Install, you're given some information that makes no sense. Why would a government app need your location info? The question is unanswered anywhere in the app's notes. Yes, you do need to turn over a certain amount of personal information to file an FOIA request, but the location it's being sent from is irrelevant.

Now, the idea behind the app is a good one. If you're the inquisitive type, ideas for FOIA requests may strike at inopportune moments. Rather than holding onto it until you're in front of a proper computer, you can just fire one off immediately. IN THEORY.

The app doesn't store your personal information (probably a good thing), so this means every FOIA request will require you to type in your name, address, etc. all over again.

The app's shortcomings become apparent immediately. You're given a list of agencies you can request from, but it's far from complete. Most noticeably, the TSA is not on the list of available agencies and there's no option to add other DHS agencies to the list. Presumably, the TSA will be added when (or if) its FOIA system is told to play nice with the DHS app.


As for the actual entry of personal information (the thing you'll be doing EVERY SINGLE TIME YOU USE THE APP), it's a complete travesty. The UI seems to have been created by a person who knows what a fill-in-the-blank form looks like, but has never actually performed the act on anything but paper.

Look closely at this screenshot. I'm currently in the Zip Code field. You know how I know this? Because when I start punching in numbers, it starts filling up the field. There's no blinking cursor to let you know what field you're in. (Nor does it show up when you need to edit something. It only provides the little teardrop indicator underneath wherever it is [approximately] that you tapped the screen.]


The fields themselves are, um... not smart. Not a single field entry triggers uppercase letters, despite almost every field being the sort of information one normally capitalizes.

It gets worse.

Clicking on State gives you a menu of states to choose from. But not 50 of them. Not even a dozen of them. You'd better hope you live in states None-Colorado because there is no way to scroll down the list (it's static) or even manually enter your state's name.


At this point, I gave up. It's not even worth using as a last resort. You'd be better off writing a reminder in a functioning app and using the DHS's website (or a clearinghouse like MuckRock) to do this twice as fast with half the hassle. The fields are unresponsive, your keyboard routinely covers what you're trying to type in, and, for no apparent reason, the government now knows approximately where you last angrily yelled at its terrible app.

I am hoping this app improves over time -- not because I plan to make use of it, but because it will show the agency is actually trying to make its agency more accessible and transparent, rather than just settling for a "Will this do?" app that actually won't do. Not at all. And I guarantee the development of this app costs more than the development of apps with twice the capability and with at least a passing knowledge of common UI features.

Filed Under: app, dhs, foia, homeland security

FBI Withholds 69 Pages of TrueCrypt-Related Documents, Most Of Which Can Already Be Found Online

from the DEFAULT:-HIDE dept

Weird TrueCrypt-related things keep happening. Over the past few years, TrueCrypt has gone from "recommended by Snowden!" to a service of questionable trustworthiness. To begin with, it was never clear who exactly was behind TrueCrypt and the lack of a recent security audit wasn't winning it many new converts.

Things went from somewhat bad to disturbingly worse when, shortly after the first phase of the audit was completed, a post went up at SourceForge declaring the software insecure and that all development had been halted. The post pushed users towards BitLocker. Further development was left to the public and more testing seemed to indicate it was still trustworthy, even though it relied on possibly predictable random number generator.

Whether or not TrueCrypt can fully be trusted remains up in the air. But there's some indication that the FBI has taken an interest (probably an unhealthy one) in TrueCrypt's inner workings.

Techdirt reader dfed sends in a tweet from security researcher Runa Sandvik, along with a link to her FOIA request to the FBI for TrueCrypt-related documents. What has been "returned" to her has been completely withheld, all 69 pages of it. The FBI cites FOIA exemption b(4) which covers "trade secrets and commercial and financial information."

The documents that won't be making their way to Sandvik appear to be three technical articles not written by FBI personnel and ones that have appeared elsewhere in unredacted form.

In further explanation of the withholding, the material consists of three, copyrighted articles: Easy to Crack USB Thumbdrives, March 12, 2008 by Daniel Bachfeld; EEEP Net: "FOUO Network", April 2014 by Greg Fulk; Techno Forensics Conference, October 2007 at NIST by Dave Reiser, and a training slide presentation, Anti-Forensics, November 2, 2007 by Secure Computing.

The 2008 article may be somewhat related to the FBI's failed attempt to crack TrueCrypt encryption protecting hard drives owned by Brazilian banker Daniel Dantas, who was suspected of several financial crimes. The Brazilian government asked for the FBI's help after spending five months of its own attempting the same thing. A year later, the drives remained intact.

The thing is, Daniel Bachfeld's article on crackable USB drives can be found online. And it was previously published in a German tech magazine. Once again, we see a government agency withholding publicly-available information simply because that's its natural tendency: to keep requesters and requested documents as far away from each other as possible.

The presentation by Dave Reiser was given at a conference that is open to members of the public, as well as the law enforcement community, so there's no reason for secrecy there. And Paul A. Henry's anti-forensics presentation, which discusses TrueCrypt, can be found online as well.

So, why is the FBI holding these back? Nothing in these papers discusses anything that could possibly be considered a "trade secret." If these are secrets, they're pretty open. Searching for "anti-forensics" turns up a wealth of scholarly papers and presentations that discuss both encryption and TrueCrypt.

This is just the FBI obfuscating for obfuscation's sake. But its knee-jerk reaction to withhold everything in its entirety also suggests something slightly more troubling. Either the intelligence/investigative arms of the US government have found a way in (by obtaining keys or compromising the RNG) or they're still very actively involved in trying to do so. Neither bodes particularly well for TrueCrypt users.

Filed Under: fbi, foia, redaction, truecrypt

Sacramento Mayor Sues Own City, Local Journalist To Keep Public Records From Being Made Public

from the the-system-fights-the-system! dept

Kevin Johnson: Three-time NBA All-Star. Former (embattled) president of the National Council of Black Mayors. Outgoing (non-embattled) president of the US Conference of Mayors. Frequent litigant. Destroyer of public records. Suer of his own city. Only a couple of these can be considered flattering.

In his latest litigious effort, Mayor Johnson is mounting a multi-pronged attack on both a Sacramento journalist and his city government. At the center of it are documents Johnson claims should be exempt from public records requests: emails sent from his personal Gmail account but which discuss official business.

The suit against Sacramento News & Review writer Cosmo Garvin makes a little sense, at least in terms of disputing the release of documents. But it makes less sense in context. Another newspaper (Sacramento Bee) made a similar request but has not been named in the lawsuit, apparently because it acquiesced to Johnson's lawsuit threat and altered its records request. (The Sacramento Bee denies doing so, instead claiming it withdrew its request while waiting for the city attorney to make a determination as to which emails will be released. It may not be acquiesence, but it still serves Johnson's purpose, seeing as this withdrawal didn't occur until after the mayor's lawyers announced his intention to sue.)

Garvin did not withdraw his, nor did he alter it. The city attorney's office has already agreed to release the disputed emails, which is why it is also named in the mayor's lawsuit. Here's what Garvin is seeking and what Johnson is hoping to sue back into the shadows:

Among the communications the city attorney was prepared to release were emails between Johnson and lawyers from Ballard Spahr, a firm Johnson used during his brief and debacle-filled reign as NCBM president. Johnson’s suit, however, argues that an exemption in the public-records laws for communications between an attorney and client should prevent their release.

Johnson claims these emails are protected by attorney-client privileges and shouldn't be released. He (through his lawyer) claims to be all about transparency and the disclosure of "all appropriate public records." Apparently, he feels these emails are not and maintains it has nothing to do with his highly-disputed, exceedingly brief tenure as the president of the National Council of Black Mayors (NCBM). This assertion would carry a bit more weight if (a) his time at the helm of the NCBM wasn't marked by allegations of abuse of his position to support his wife's business and career, and (b) if he hadn't previously admitted -- on record -- that he had destroyed documents subject to public records requests.

Johnson testified Tuesday in Superior Court on a separate matter, and acknowledged that he deleted text messages regarding a $500 million sports arena partly funded by the city.

Johnson said he deleted the text messages despite being advised by city staff to save all electronic communication regarding the arena deal with the Sacramento Kings.

Garvin notes that the timing of Johnson's public record-blocking lawsuit is catastrophic, at best.

"This is on the day that the front page of the [Sacramento] Bee is about the mayor deleting texts," Garvin said. "It's the same time the city is getting ready to delete thousands and thousands of emails ... which they've never done before."

Adding to the ugliness surrounding Johnson's litigious desires to maintain a murky relationship with the public is his past abuse of his NCBM position. Considering he'd already been dumped by the Council for his questionable actions, the NCBM is far from pleased that it's listed as a co-plaintiff in Johnson's legal fight against transparency. In fact, the two entities are still engaged in plenty of litigation against each other.

Williams and other NCBM board members were also surprised the group was listed as a plaintiff in Johnson’s lawsuit, given how contentious the mayor’s relationship with them has been. Johnson was elected president of NCBM in 2013 under disputed circumstances. The group’s general counsel voided Johnson’s election just two weeks into his presidency, and Johnson sued to have his presidency restored. He and NCBM officials have been suing each other ever since. Williams is personally suing Johnson for defamation.

To combat Johnson's co-opting of whatever goodwill remains towards the organization, the Council has signed a resolution that disavows any participation in Johnson's open records litigation and calls for all disputed emails to be released. Johnson is now learning that allies are like family members: you don't get to choose either one.

While Johnson may have a point about privileged communications, it's completely undercut by his actions. He (and his staff) have used personal email accounts in hopes of skirting public records requests and he has openly admitted that he has destroyed information responsive to records requests against both city policy and direct instructions to maintain these records.

Filed Under: foia, kevin johnson, national council of black mayors, public records, sacramento

Twelve Years After Requesting Documents From Government, Prison Legal News Finally Scores Win From Appeals Court

from the so-much-for-simply-waiting-out-FOIA-requesters dept

The DC Circuit Court has revived Prison Legal News' long-running FOIA lawsuit against the federal Bureau of Prisons. "Long-running" tends to describe a lot of FOIA litigation, but this particular case is the ultra-marathon of FOIA lawsuits.

In 2003, PLN filed a Freedom of Information Act (“FOIA”) request with the Federal Bureau of Prisons seeking all documents showing money the Bureau paid in connection with lawsuits and claims brought against it between January 1, 1996, and July 31, 2003.

That's right. Twelve years past its original request and the Appeals Court has reversed and remanded the decision to the district court to finally get it right. At the heart of the decade-plus legal battle is the supposed "categorical redaction" of personal information, which, upon examination by the Appeals Court, appears to be anything but categorical. It could charitably be called "inconsistent," despite the government's claims that it has a right to utilize a blanket exception.

But before we get to that point, we need to take a look at the past 12 years. PLN filed this request in 2003 and received no documents at all until it sued the BOP two years later. At that point, the Bureau suddenly found 11,000 documents -- about a third of which were handed over in redacted form.

Of those, 102 are still being disputed. FISA-famous Judge Reggie Walton (operating in his less-surveillance-oriented district court position) granted summary judgment in favor of the Bureau of Prisons in 2013 -- eight years after the Bureau first started releasing documents to Prison Legal News. The appeal of that decision leads us to where we are today: finally seeing an endpoint to a dispute over public records that is now entering its second decade of litigation and spans three presidential elections.

The Appeals Court disagrees with Walton's concession to blanket personal information exemptions, mainly because the Bureau's careless application of this exemption showed little attention had been paid to the underlying information or truly weighed against the public's interest.

Both the final Vaughn index and the Moorer Declaration lump the privacy interests of all claimants and any perpetrator or witness whose information is redacted into categories based on the type of document in which the individual’s information appears. Both provide only cursory statements such as those described above to justify the redactions.

It's not that the government can't use categorial redactions, the Appeals Court explains. It's that it can't apply this exemption categorically when the redactions cover such a wide variety of information.

The categories, centered as they are on specific types of filed documents, include a wide range of claims covering various degrees of privacy interests. As PLN points out, the privacy interest of tort claimants will be different when they are claiming injury from a slip and fall as compared to a sexual assault. The EEOC claims also present a diverse picture and can hardly be considered a category that “‘characteristically support[s] an inference’ that the statutory requirements for exemption are satisfied.”

But the government has applied this categorical exemption, either due to laziness or a desire to obfuscate. The twelve-year legal battle suggests the latter. This isn't the only "failure" of the categorical redactions. In the disputed documents, the government decided privacy interests outweighed the public interest, no matter the underlying circumstances. The court finds this "inconsistent," at best.

There is another problem with the categorical approach here – it fails to distinguish between redacting the identity of the alleged victim and the identity of the alleged perpetrator. This distinction is significant with respect to the employees’ interest in keeping their information private. But the Bureau has made no effort to distinguish between the privacy interests of employees who are victims and those who are perpetrators. In fact, it has offered little support for redacting information that would identify perpetrators.

Even its inconsistency is inconsistent.

In addition, the Bureau has not been consistent in shielding the names of its employees accused of wrongdoing. While redacting the names of those accused of discriminating in Exhibits 1 (Doc. 110-5) and 2 (Doc. 110-6), it did not redact the name of a Bureau employee who was the alleged perpetrator of a sexual assault on an inmate in Exhibit 3 (Doc. 110-7). Joint Appendix 274, 291, 302. The Bureau never explains its inconsistency. Neither the Stroble Vaughn index nor the Moorer Declaration provides insight into why the names of some alleged perpetrators are redacted while others are revealed.

This arbitrary use of a blanket exemption leads to the ridiculousness of treating a minor injury as no different than five months of improper imprisonment… or alleged sexual assault by a prison employee.

In the scheme of things, one would think that an employee’s eye injury resulting from the throwing of a screw is vastly different from a sexual assault on an inmate and that the privacy interests of the victims and perpetrators in these two cases will be different. These examples are sufficient to show that the privacy interests involved in a given type of claim do not fall within a single category that “characteristically support[s] an inference that the statutory requirements for exemption are satisfied.”

In the end, the case is remanded to the lower court for further examination of the balancing of personal and public interest. The decision points out that this balance must be examined in detail and cannot be simply handed over to blanket exemptions, other than that of a few distinct individuals (medical professionals who treat inmates, inmates who have filed claims against prisons, etc.).

At some point -- even possibly this year -- Prison Legal News may finally receive the final documents it's been seeking for the last twelve years. I guess this shows the system still works, even if it routinely suffers from hard resets and significant downtime.

Filed Under: 12 years, appeal, bureau of prisons, delay, foia, journalism
Companies: prison legal news

Lawsuit Filed After Export-Import Bank Official Swears He 'Accidentally' Deleted All Of His Responsive Text Messages

from the New-Year's-Resolution:-1.-Delete-incriminating-texts dept

Sure, Freedom of Information laws are great, but they have their downsides. For one thing, they clearly signal to agencies which records are being sought. It's unavoidable. To answer a request, an agency needs to know what it's looking for. Once the request is out in the open, efforts can begin in earnest to excise information anyone affected doesn't want made public.

I'm not saying anyone did anything wrong, but it very definitely looks like someone did something deliberately wrong.

A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.

The watchdog group -- Cause of Action -- sought "text messages, Blackberry messenger chats and SMS messages sent or received by top officials during the period of days between November 2, 2014 and November 8, 2014." These would be texts fired back and forth during the mid-term elections by officials of the controversial US Export-Import Bank, which was facing the reality of having its funding halted by House Republicans.

Cause of Action got most of what it sought… several months later. It filed the request on November 20, 2014 but didn't receive a response until May 12, 2015. That response brought with it the following bad news:

[T]he messages for Scott P. Schloegel were accidently deleted on approximately January 1, 2015. Enclosed is signed declaration from Mr. Schloegel attesting to the deletion.

And sure enough, there's Schloegel's attestation that he did, indeed, nearly 45 days after the request was received, "accidentally" delete the relevant text messages. This violation of duties to preserve public records wasn't reported to Cause of Action until its very belated response from the agency itself, four months after the deletion took place.

For what it's worth, there's a sworn statement that says Schloegel didn't do this on purpose. I'm not sure how much culpability that alleviates, but I suppose it's better than a sworn statement claiming Schloegel did this deliberately and what are you going to do about it? But the end result is the same. The messages sought won't be making their way to the requesting entity.

And for what it's worth, Cause of Action is now suing the Export-Import Bank, demanding that the DOJ and/or Congress commence an investigation and work toward the recovery of the deleted messages. Whether or not this will prompt any action remains to be seen, but Cause of Action is still working hard to audit government agencies' FOIA response efforts. This particular request is part of a larger effort, as noted in the lawsuit:

In part due to this concern, Cause of Action has been conducting an investigation into whether federal agencies comply with their obligation to preserve text messages for a period of time. As a part of this investigation, Cause of Action lawfully requested that Ex-Im Bank produce the text message records of five high-ranking agency officials for a one week period in which text messaging likely would have been used to conduct agency business (November 2-8, 2014, or election week).

Because so much official communication now travels on more ethereal channels, the effort it takes to simply make possibly embarrassing documents vanish is practically nil. Any failure to follow up on accusations like these -- or even purportedly innocent "deletions" -- will signal to government agencies that carelessness with the public's information is acceptable. There's really no reason government agencies aren't working with redundant systems at this point. It takes little-to-no effort to ensure pertinent files housed on issued electronics are backed up elsewhere, thus ensuring that this sort of sworn "accident" doesn't result in the permanent removal of requested information.

Filed Under: deleted, evidence, foia, scott schloegel
Companies: cause of action

Court Tells City: No, You Cannot Sue Someone For Making A FOIA Request

from the when-the-government-becomes-the-vexatious-litigant dept

Open records requests and lawsuits go hand-in-hand. Agencies obfuscate, stall, perform deliberately inadequate searches and fail to respond in a timely manner. These actions frequently result in lawsuits, which are notably almost always filed by the requester.

The Hamilton Township of New Jersey isn't like other government agencies. It's far more proactive.

In March, a private citizen named Harry Scheeler Jr. sent a request to Hamilton Township for surveillance footage of the town-hall and police-department buildings, making the request under the state Open Public Records Act (OPRA) and the state common law right of access to public records. A few weeks later, instead of responding to the request, the township sued Scheeler and asked a local court for relief from any obligation to respond, then or in the future. The township also asked for attorney’s fees.

As Jonathan Peters at the Columbia Journalism Review points out, this isn't the first time this has happened, but it is incredibly rare and it almost always ends badly for the agency instigating the legal action. This case is no different, although it did manage to survive long enough for Scheeler to narrow his request in hopes of having the lawsuit dropped. The township was very persistent, unfortunately. But unfortunately for the township, the presiding judge recognized how truly effed-up it would be to allow this suit to continue or otherwise encourage government agencies to sue open records requesters.

Scheeler asserts that the Township has no authority to seek relief from the records request in court; that only the requestor has such a right. Consequently, before reaching the merits of the request, the threshold issue that the court addresses in this opinion is whether a government agency, such as the plaintiff, may file a lawsuit against a person requesting public records, or whether the right to institute a lawsuit determining the validity of the request belongs solely to the requestor. The court concludes that the right to bring the issue to court belongs exclusively to the requestor, not the government agency.

New Jersey's open records law -- like those everywhere in the US -- provides for the filing of legal complaints against unresponsive government agencies. What the law doesn't provide for is the township's actions. In lieu of a response, it sought an injunction barring not only this request, but any future requests for similar information by Scheeler. As the court points out, this is about as far-removed from the intention of open records laws as anyone can get.

To allow a government agency to file a lawsuit against someone who has submitted a request for government records would undoubtedly have a chilling effect on those who desire to submit such a request, undercutting the public policy previously described.

A government agency's lawsuit against document requestors subjects them to involuntary litigation with all of its concomitant financial, temporal, and emotional trimmings. A public policy that gives a government agency the right to sue a person who asks for a government document is the antithesis of the policy underlying both OPRA and the common law to provide citizens with a means of access to public information to keep government activities open and hold the government accountable.

Now, not only has the temporary restraining order against Scheeler been lifted, but the township will be paying his legal fees as well. The court notes that not doing so would basically allow government agencies to trap citizens in "quixotic battles" against entities with "almost inexhaustible resources." Because Scheeler was "trapped" by a lawsuit he didn't initiate and one that pertained to the government's obligation to turn over requested documents, the presiding judge reads the fee-shifting provision of the state's open records law as applicable to legal fees. To do otherwise, the court points out, would be reward the township for violating open records laws.

Filed Under: foia, hamilton township, harry scheeler, lawsuit, open government, open records, opra

City Claims It Will Take 9,000 Hours And $79,000 To Fulfill Gawker's Request Emails Related To Abusive Police Officer

from the we'll-open-our-records-if-you'll-open-your-wallet dept

The McKinney (Texas) Police Department is under lots of outside scrutiny, thanks to the racially-tinged antics of its police force -- namely the since-departed Officer Eric Casebolt, who barrel rolled into infamy in a cell phone-captured video that culminated in him pinning down a 14-year-old girl while waving a gun at two teens.

Since that point, multiple entities have filed public records requests with the police department. An interim response given to MuckRock's Shawn Musgrave lists 61 requests as of June 19th, a number that has certainly increased since that point. One of the early requesters was Gawker's Andy Cush, who sought "[Officer Eric] Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees."

Cush just received a response from the city's legal representatives claiming it will cost nearly $80,000 to compile this information.

The city arrived at that extraordinary figure after estimating that hiring a programmer to execute the grueling and complex task of searching through old emails would cost $28.50 per hour, and that the search for emails about Casebolt would take 2,231 hours of said programmer’s time. That only comes to about $63,000; the bill also includes $14,726 “to cover the actual time a computer resource takes to execute a particular program.” In other words, the operating cost of the computer used to search the emails is nearly 15 grand on its own.

Perhaps in an effort to make this stratospherically-high fee appear more reasonable, the law firm broke it all down in table form.


According to the city's lawyers, this exorbitant estimated fee is due to the police department switching over to a new email system on March 1, 2014. Apparently, every email created before then can't be searched without hiring a programmer to create a new program from the ground up. Whatever email software the city used prior to this apparently created email in an "unsearchable" format.

This estimate reeks of… well, several things (arrogance, obfuscation...), but mainly of bullshit. I find it hard to believe city personnel are unable to search older emails, especially considering "older" only means "slightly more than a year old," rather than "stored on punchcards." It boggles the mind that a move to a new email system would cut several years of emails irrevocably adrift from the rest of the city government's computing system -- or that the city would be fine with a lack of basic search options post-upgrade.

The city is claiming it will take a year of 40-hour work weeks for a programmer to create a search system for pre-2014 emails. Worse, it claims the same even if "an existing system" is used. That may just be boilerplate language for fee estimates, but it also could be closer to the truth than its "one year of programming" claim. No matter which system is used -- the "existing" or the bespoke -- the city still claims it will still take an unreasonable amount of time to search the system. According to the estimate, it will take roughly three years of 40-hour work weeks to "execute a particular program."

This appears to be nothing more than an attempt to dissuade requesters from pursuing information about Eric Casebolt or the McKinney Police Department. This "make 'em pay" strategy is as old as open records laws themselves. The city of Ferguson hit a number of journalists with exorbitant fees in the wake of the Michael Brown shooting. The Florida State Attorney's office told a requester seeking information on the alleged (and highly suspicious) suicide of her daughter that it would cost nearly $180,000 to fulfill her request.

Gawker's options here are pretty limited. It can either limit its request to post-March 2014 emails as suggested by the city's lawyers (pretty much useless if seeking a full representation of Eric Casebolt's career) or it can petition the state attorney general to take a look at the city's claims.

A person who believes the person has been overcharged for being provided with a copy of public information may complain to the attorney general in writing of the alleged overcharge, setting forth the reasons why the person believes the charges are excessive. The attorney general shall review the complaint and make a determination in writing as to the appropriate charge for providing the copy of the requested information.

This particular avenue of recourse has been used frequently in the past. A 2012 examination of Texas open records requests by the Center for Public Integrity found McKinney ranked highest in the state in the number of fee complaints to the state attorney general (per 100,000 residents). Not all of these were fee-related, but the ratio of referred requests suggests the local government is more reluctant to turn over responsive documents than its neighbors. A spokeswoman for the city notes in the article that requests related to the police department are treated with "an overabundance of caution." This response to Gawker, however, seems not so much cautious as confrontational -- a "shut up and go away" response in the form of a thoroughly ridiculous $79,000 price tag.

I have reached out to the city employees listed in the letter to Gawker, asking for details on the current and pre-2014 email systems, as well as any methods used by city employees to access older emails. I'm not expecting an answer, but if one should materialize, it will be passed on.

Filed Under: eric casebolt, foia, mckinney, records, texas
Companies: gawker

UK Officials Hoping To Change Freedom Of Information Law To Include Less Of Both

from the information-wants-to-be-withheld dept

The UK's short-lived, awkward relationship with its Freedom of Information law appears to winding its way towards an acrimonious divorce. Not fully implemented until 2005 and disowned by its co-creator (former PM Tony Blair) in his memoirs only five years later, it has apparently now reached the point of irreconcilable differences: those being the public's interest in what their representatives are doing and their representatives' extreme disinterest in sharing their feelings emails and documents.

Not that it ever was a fully-functioning Freedom of Information law (it was pre-sabotaged by automated email deletion programs before it ever went into effect), but it was at least somthing. But, sadly, it appears the UK government's "embrace" of transparency is every bit as sincere and warm-hearted as its embrace of free speech.

Michael Gove, the justice secretary, is considering making it more difficult to procure information from government bodies, including allowing officials to count “thinking time” when calculating how much it costs to retrieve information. One plan is to make it easier for ministers to veto publication of certain documents… Another is to change the way the cost of finding information is calculated so that officials can more readily turn down requests.

The first aspect would hand final veto power over to acting prime ministers. This is viewed by Gove and others as "needed" because the government was unable to prevent Prince Charles' correspondence from being released to The Guardian. As is almost always the case with contested open records requests, some embarrassment resulted from the publication of the released documents -- which showed that member of royalty pushing his personal perspective on issues like defense spending… or homeopathy... on a variety of legislators.

The second aspect is more related to Michael Gove's own FOI problems. Gove has previously been investigated for using personal email accounts to conduct official business. The 90-day automatic email destruction policy the UK government instituted is somewhat helpful in keeping the public uninformed, but what if someone wants to retain these official records longer for personal reasons, but doesn't feel particularly compelled to share them with FOI requesters? Well, that's where the discussion of fees comes into play.

Currently, citizens can request anything as long as the costs incurred by government bodies doesn't exceed £600. Considering many files are stored electronically, can be easily searched and resulting documents sent electronically, costs of fulfilling requests continue to decrease. So, Gove and others are suggesting a couple of changes: lowering the £600 cutoff point and/or padding invoices. The latter would see such intangibles as "considering" potential document releases billed at an hourly rate. Redaction efforts would also be billed.

If these changes are put into effect, FOI releases will slow to a trickle and some requests will meet with an almost un-challengable refusal, thanks to executive veto power. David Cameron promised a "complete revolution in transparency" during his term. Depending on your opinion of Cameron, this is either the antithesis of his goal, or exactly what he had in mind.

Filed Under: foia, freedom of information, michael gove, secrecy, transparency, uk