New Michigan FOIA Caps Per Page Fees, Drops Costs Further If Agencies Miss Response Deadlines

from the not-perfect-but-still-an-improvement dept

If all goes according to plan, this sort of thing won't be happening in Michigan anymore.

It's not at all clear if the police in Michigan are using the full extent of these [cellphone data-slurping] tools, and that's what the ACLU was curious about. So, it filed a Freedom of Information Act request on the matter... and was told that it would cost $544,680 to get that information. That doesn't sound like "freedom" of information, now does it?

A new state FOIA law [pdf link], signed recently by Governor Rick Snyder (and shepherded through the 2-year process by then-State Rep., now Senator Mike Shirkey), puts a limit on how much government agencies can charge to fulfill requests.

Public records will become cheaper and easier to access under changes to Michigan's Freedom of Information Act.

Government agencies will not be allowed to charge more than 10 cents per page for copies of public records; they can face increased fines for delaying responses, and people seeking the records now can sue if they consider the fees to be exorbitant.

This capped per-page amount should prevent entities like the ACLU being charged a half-million dollars for a records request. Not to single out the Michigan police, but it seems to be one government agency that treats FOIA requests like get-rich-quick schemes.

Case in point is the corruption scandal involving Speaker Jase Bolger (R – Marshall) and Rep. Roy Schmidt (R – Grand Rapids).

The police report was some 2,000 pages of text messages, bank statements, and interviews surrounding the Speaker’s election rigging scheme in Grand Rapids, and the Michigan State Police Post in Ionia told anyone who wanted a copy of that report to pony up $1,896.30, including $73.83 in hourly compensation for a detective to pull the records.

This cap would turn $1800 into about $20.00. This isn't going to sit well with government agencies who have used high fees to reduce their transparency. Expect those to address the "problem" by chalking up more hourly fees to make up for the "lost revenue." This, too, is addressed in the law's language, which forbids the charging of "arbitrary or capricious fees." But at the end of it all, there's nothing in the punishments section that will actually deter agencies from doing exactly that.

The law allows requesters who believe they are being overcharged for records to sue and ask a court to lower the fee. If the court concludes the public body arbitrarily and capriciously charged an unreasonable fee, the court must assess $1,000 in punitive damages.

The new law also increases punitive damages from $500 to $2,000 on public bodies that arbitrarily and capriciously break the law by refusing or delaying the release of public records.

It also requires courts to fine public bodies $2,500 to $7,500 for willfully and intentionally failing to follow the law. The fines are paid to the state.

When the state collects a fine from a state agency, it's little more than money being passed back and forth under the disapproving glare of an overseer. In some cases, the money may transfer from a city to the state, but in no case will it ever pass from the person authorizing the forbidden behavior to the taxpayers. This isn't even a hand slap. It barely rises to the level of a disappointed sigh.

On the other hand, it does work out a little better for the citizens making the requests. If the court finds in the requester's favor, they may be awarded damages. On top of that, the law adds an additional requirement tied to agencies' pockets that should expedite request fulfillment.

If a government misses a deadline for responding to a request, it must discount the fees charged by 5% for each day the response is late. The maximum discount is 50%.

It looks pretty good on paper, but the implementation may not be as smooth. Without a doubt, any request that makes its way into the court system can expect several rounds of challenges and appeals. The same goes for any agency's stalling tactics. While this law does apply a much-needed cap, it still leaves room for abuse and its deterrents will do little to stop arbitrary fees and long, expensive court battles -- the latter of which use taxpayer funds to defend the withholding of taxpayer-funded documents from taxpayers.

Filed Under: fees, foia, michigan

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing

New Senate Intelligence Boss Demands That White House 'Return' CIA Torture Report Copies

from the so-they-can-be-burned dept

We had mentioned in the past, that once Senator Richard Burr took over the Senate Intelligence Committee, it seemed likely that the CIA torture report, prepared by the Committee's staffers, would be buried. That was before the redacted version of the executive summary was released, and it was written to explain why an agreement needed to be reached to release the report before the new Congress took over. However, what we didn't expect was that Senator Burr, upon taking office, would then take the rather unprecedented step of trying to bury the report anyway.

But that's exactly what he's doing.

Specifically, he has freaked out and demanded that the White House return every copy of the full 6,600 page report, saying that Senator Feinstein never should have delivered that full report to anyone in the administration:

Burr, upon taking charge in January, wrote to the executive branch and the federal agencies in receipt of the document, and asked that it be returned to the committee, as he did not feel it was a valid disclosure.

“It gets pretty technical,” Burr said, confirming he sent the letter. The full document, he explained, had been voted complete in the 112th Congress, and the release of the executive summary was voted on by the 113th Congress.

But what wasn’t ever agreed upon, said Burr, was the disclosure of the full report to several arms of the federal government, which prompted his letter demanding all copies be returned.

And, that's not all he's asking for. He's also demanding back the so-called "Panetta Review," which was the internal review, done by the CIA of the torture program, with findings that largely mirrored the Senate Intelligence Committee's report. The Panetta Review had been done, on the orders of then director Leon Panetta, and the CIA insists it was only meant for internal use at the CIA. At some point, however, according to the Intelligence Committee staffers, the CIA gave a draft of that document over to the those staffers. That resulted in then Senator Mark Udall asking the CIA for the final review -- leading the CIA to freak out that a Senator knew of the existence of the Panetta Review in the first place.

That, of course, resulted in the CIA then spying on the Senate staffers' computers to find out how they got the document and the CIA ridiculously claiming that the staffers had violated criminal laws in removing the document from the network and storing it in a safe place. Udall, before leaving Congress, argued that the Panetta Review should be released, but Burr has (not surprisingly) demanded the document back.

Once again, this raises some serious questions about what Senator Burr thinks his role is. Is it oversight of the CIA -- or is he the CIA's protector? Because the demands for both of these reports to be "returned" so that he can more or less destroy them, certainly suggests the latter, rather than the former.

And, as ridiculous as it may sound to demand the return of these reports, it's more than just a gesture of solidarity with the CIA. The ACLU is currently suing the CIA over its refusal to release the Panetta Review under a FOIA request and also the federal government for refusing to release the full CIA torture report. Having that information in other parts of the government make it more likely that a court could order it to be turned over. But Burr seems to be focused on making sure that it's only held by "friendly" parties who might destroy this important historical document, detailing the CIA's abuses. As the ACLU noted in a statement:

“Senator Burr is supposed to be overseeing the CIA, not covering up its crimes. The full Senate torture report was given to Executive Branch agencies to be widely used to make sure that the federal government learns its lesson and never uses torture again. Senator Burr’s attempt to recall the report seems like a bid to thwart Congress’s own Freedom of Information Act, which protects the rights of the American people to learn about their own government. Americans should ask, if Senator Burr isn’t going to serve his role in the Constitution’s system of checks and balances, then why did he want to be chairman of the intelligence committee? This is a poor start to a chairmanship.”

Filed Under: cia, cia torture report, foia, oversight, panetta review, richard burr, senate intelligence committee
Companies: aclu

Convicted 'Eco-Terrorist' Released From Prison After Discovery Of 'Thousands Of Pages' Evidence Withheld By The FBI

from the Build-your-own-terrorist!-Instructions-not-included! dept

Ladies and gentlemen: your Federal Bureau of Investigation.

• Former FBI Guy Lies, Claiming New Mobile Encryption Would Have Resulted In Dead Kidnap Subject
• Court Slams FBI For Saying It's Okay For The Federal Government To Lie To A Court
• New Emails Show That Feds Instructed Police To Lie About Using Stingray Mobile Phone Snooping
• Your Word Against Ours: How The FBI's 'No Electronic Recording' Policy Rigs The Game... And Destroys Its Credibility
• FBI Made Up 'Threats' At Peace Rally, Lied To Congress To Justify Spying Activity

Eric McDavid was sentenced to nearly 20 years in prison for alleged eco-terrorism, becoming the first person ever indicted for ELF (Earth Liberation Front)-related charges. WAS. He's now free to continue his interrupted life, thanks to the FBI's dishonesty.

Then, the government changed its mind, conceding that thousands of pages of evidence that should have been given to McDavid's defense attorney years ago – including love notes to a young woman who turned out to be an FBI plant – had instead been secretly held in an FBI file in Sacramento until recently. The best course of action, the government ultimately decided, was to set McDavid free.

"I've never heard or seen of anything like this," said U.S. District Judge Morrison C. England Jr., who originally sentenced McDavid. The judge ordered him released in accord with an unusual agreement between prosecutors and his appellate attorneys.

The judge demanded answers from the prosecution as to how this could have happened. From what's reported by the Sacramento Bee, it appears those answers -- like the previously-missing evidence -- were nowhere to be found.

"I sat through the 10-day trial of Mr. McDavid," a clearly exasperated England said, sometimes stopping to hold his head in his left hand.

"I know he's not necessarily a choirboy, but he doesn't deserve to go through this, either. It's not fair."

Officials from the US Attorney's office joined Assistant US Attorney Andre Espinosa, but the brain trust came up with nothing.

Espinosa and John Vincent, chief of the U.S. attorney's criminal division, said the documents had remained in the FBI's possession in a file in Sacramento.

"We don't know exactly why they weren't turned over," Vincent told the judge.

Great answer. Even better, the government contends that even if it had managed to turn over the evidence in a timely fashion, it still probably could have secured a conviction. But actions speak louder than this attempt to wedge an undeserved last word in sideways. McDavid is a free man after pleading guilty to a single conspiracy charge. And even that's questionable. From what's been turned over, it appears McDavid was another one of the FBI's "homegrown terrorists."

Despite Thursday's guilty plea, his supporters say McDavid was never guilty of anything more serious than falling for a comely 18-year-old woman he met at an Iowa meeting in 2004, a woman who later prodded him to take violent action against government targets with promises that they would later consummate a romantic relationship.

The woman, named in court documents and at the trial only as "Anna," turned out to be an FBI informant and played a critical role in McDavid's arrest, as well as his release Thursday… Court documents spell out in detail how "Anna" provided money, transportation, housing and food to McDavid and his two co-defendants over an 18-month period, evidence his lawyers say shows the entire case was about entrapment rather than stopping terrorist attacks.

McDavid's lawyer got in his own last word, a bit more deserved than the US Attorney General's office.

"I hope she's not ruining someone else's innocent life."

Keep hope alive. This is has been the main component of the FBI's counterterrorism efforts: plots designed, built and put into motion by FBI informants and undercover agents, utilizing whatever weak-willed or weak-minded individuals they happen to talk into participating. Feeling any safer, America? Self-motivated terrorists roam free while the FBI plays dress-up with the easily-flattered and easily-duped.

The three targeted in this investigation were urged on by "Anna." None of them had previous convictions. The arrests followed the purchase of household chemicals, supposedly for bomb-making. This was the culmination of a two-year "investigation" during which "Anna" repeatedly pushed the three men towards bombing targets in the area. Much of what was presented to the jurors was personal testimony by Anna that could not be corroborated by video or audio recordings (Anna frequently wore a wire and many of the meetings took place in her cabin, which had surveillance cameras installed). So, the FBI presented plenty of hearsay while withholding thousands of pages of evidence. Our words against yours.

In the end, "our word" wasn't enough. McDavid -- more lovestruck fool than eco-terrorist -- is free and the world is no more dangerous than it would have been if he was incarcerated. Any bets that the FBI will be more forthcoming in the future? I'm guessing it won't. Why should it? All it lost here was someone it had groomed for arrest. It didn't lose a threat, or a public enemy. Win a few, lose a few. It will continue to play terrorist charades because it pays as much as real investigative work, but has a much higher chance of success.

Filed Under: criminal plots, eco-terrorism, eric mcdavid, fbi, foia, lies, made up crimes, own plots, withholding evidence

LAPD Body Cam Footage Can't Be FOIA'ed; Used In Court Cases Only

from the and-this-fixes-what? dept

The Los Angeles Police Department is getting ready to deploy 7,000 body cameras. That's (mostly) good news. Body cams have the potential to deter bad behavior both by cops and by those they interact with. It's not a complete fix for police misconduct but it's far better than allowing things to continue to run as they have for so many years.

The first 800 cameras have been financed by private donors, including director Steven Spielberg and the Dodgers organization. While traditional public funding would likely have been available, this one-time fundraiser has allowed the process to move much faster than running it through the usual city channels.

This is also good news as 22 donors fronted $1.5 million, showing there's significant public interest in seeing police officers outfitted with body cameras. Now, here comes the bad news.

Privacy-minded groups like the ACLU -- while applauding the move towards greater accountability -- have expressed valid concerns about citizens being caught on camera. It's looking for the crafting of policies that will prevent the distribution of footage to "YouTube and TMZ," as well as safeguards against collected video being passed around departments for the amusement of police officers.

There are also unanswered questions concerning access within police departments. For instance: should officers have access to footage they've captured? -- Being allowed to do so may result in cops aligning their reports with their recordings. While that is a concern, there's no reason to believe officers shouldn't have access to applicable footage when writing reports -- but that does leave the door open for post-incident narrative-massaging. It will be up to those policing the police to determine whether the footage matches the story. That's part of the internal structure, unfortunately, and it's part of what keeps these cameras from being a better solution to the police misconduct problem. Independent reviews will be necessary, but there's been no indication yet that the LAPD is leaning that way.

The really bad news is the fact that the LAPD has opted to almost completely remove the public from the equation.

[LAPD Police Chief Charlie] Beck also said Tuesday that the footage would not be released to the public and would be available only through criminal and civil court proceedings.

And there goes the accountability. It's likely this move was prompted by certain activists in other cities who have placed FOIA requests for all body cam footage in perpetuity. This is an understandable reaction, but there is a middle ground that doesn't seem to have been contemplated. Limitations could be amended into local Freedom of Information statutes that would prevent overly-broad requests such as these. (And, of course, this too has the potential for abuse...)

As it stands now, body cam footage will only be viewed in a courtroom. This provides for almost zero accountability. The deployment of 7,000 body cams loses its deterrent effect if officers know that footage won't be seen unless it's showing their side of the story (criminal cases) or working against them in civil suits. Civil suits obviously aren't a deterrent, considering how many have been filed, how often settlements have been paid and how often officers are granted at minimum partial immunity in civil cases.

The LAPD may be ahead of the curve when it comes to full-blown body cam programs but if this doesn't change, the impact will be negligible.

Filed Under: body cams, foia, lapd, police, privacy

DOJ Secretly Helped Kill FOIA Transparency Bill That Was Based On Its Own Public Policy

from the most-transparent-administration-in-history dept

We've long known the Justice Department's stance on transparency has been hypocritical and disingenuous. But they've really outdone themselves this time. Last week, the agency secretly helped kill a bipartisan Freedom of Information Act (FOIA) reform bill that was based word-for-word on its own policy.

First, a little background: In a surprise to some, the very modest FOIA Improvements Act died in Congress last Thursday, despite virtually unanimous support in both houses. The bill was completely uncontroversial. It merely would have upgraded agencies' ability to accept FOIAs electronically and codified existing policy—mainly President Obama's now infamous January 20, 2009 memo in which he ordered federal agencies to operate under a "presumption of openness."

All Speaker John Boehner had to do on the last day before Congress adjourned for the year was bring the bill up for a vote, and it would've been whisked through to the President's desk. A similar bill had already passed the House unanimously earlier in the year.

Yet for some unknown reason at the time, he didn't. On Tuesday, the Washington Post reported on the inside story behind the last-minute death of the bill, and the blame centers on the Justice Department:

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the "foreseeable harm" requirement as the basis for frequent lawsuits.

The "foreseeable harm" section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause "foreseeable harm" if released. Not exactly a tall order. But what makes the Justice Department's objection so shocking is that this "foreseeable harm" provision would not deviate at all from the Justice Department's own policy. In fact, it was based on it.

In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama's aforementioned transparency order by rescinding the Bush DOJ's more restrictive FOIA rules and designating new ones. From that moment on, Holder declared:

[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

Now read full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to:

An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law

As can be seen, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they're not supposed to be defending those lawsuits in the first place?

The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to—or have to—comply with its own FOIA rules.

The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed he wanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he's claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter's privilege in the Fourth Circuit

But this most recent development is just beyond the pale.

We had a feeling that the Justice Department was behind the initial delay in getting the bill passed months ago after receiving a tip from a knowledgeable source. In July we filed a FOIA request for emails between the Justice Department and the offices of the FOIA bill's co-sponsors John Cornyn and Patrick Leahy that discuss the agency's position on the bill. We've been waiting six months and still have gotten no response.

Now we know why.

Reposted from Freedom of the Press Foundation

Filed Under: doj, foia, obama administration, transparency

Despite Racking Up Three Consecutive Unanimous Votes, FOIA Reform Bill Killed Off By Rep. John Boehner

from the BEHOLD-THE-SYSTEM-IN-ACTION dept

FOIA reform is now truly dead. Earlier this week, it looked as though Sen. Jay Rockefeller might be the one holding the murder weapon. Despite passing unanimously through the House and the Senate Judiciary Committee, Rockefeller placed a hold on the bill, citing nebulous concerns by two regulatory agencies (FTC, SEC -- neither of which were willing to go on the record about their problems with the bill) and something about "law enforcement agencies" being faced with "needless litigation" that would be a drain on their bottom lines. Of course, this ignores the fact that plenty of litigation involving law enforcement agencies is "needless" (because why be proactive about misconduct and abuse when you can just settle later?) and that any agency fighting the War on Drugs/Terror has generally been able to secure funding and equipment with a minimum of hassle.

Rockefeller's hold provoked a deluge pro-FOIA reform phone calls and emails, leading to Rockefeller releasing his hold and the bill moving on with unanimous Senate consent. This booted it back to the House where it ran headlong into Speaker of the House John Boehner, who immediately tabled it.

Newsweek's coverage of Boehner's "opaque" move concludes with this paragraph:

But these improvements may never see the light of day, as Boehner has tabled the bill. In a press conference on Thursday morning, a journalist asked Boehner about the fate of the FOIA reform bill to which he replied, “I have no knowledge of what the plan is for that bill.” If the bill does not make the House’s calendar by the end of the day, the bill dies.

The guy who made the plan for the bill (1. Do nothing) claimed he had no idea what the plan was. If the plan was to kill the reform bill, mission accomplished. Death by Rockefeller was narrowly averted only to result in Death by Boehner -- despite the fact that the FOIA reform sailed through the House earlier with a 410-0 vote.

The Hill performed a brief autopsy.

Sen. Patrick Leahy (D-Vt.) on Thursday night officially declared reforms to the Freedom of Information Act (FOIA) dead this year as the House gaveled out of session.

And he blamed House Speaker John Boehner (R-Ohio) for its death.

"And Boehner kills #FOIA improvements," Leahy tweeted at a reporter a little before midnight after the House finished its work on the "cromnibus" government funding bill — the last item of its agenda for the year.

The wonders of our political system continue. Something that received unanimous support -- not only on both sides of legislative branch, but on both sides of the partisan divide -- was dismantled by one man. One man who stood in front of a House that had passed the bill 410-0 and said, "Whatever."

Chances are it was one man swayed by the same regulatory agencies and the industries regulated by them. Transparency advocates suggest Wall Street made a last-minute push to thwart the legislation.

The suspicion among transparency groups is that the financial industry is working to fortify federal open-records exemptions for Wall Street which also exist in states and cities across the country. Those groups also fear the financial industry is aiming to prevent government regulators from erring on the side of transparency when faced with open-records requests for information about the financial industry.

“The negotiation process for this bill has been going on for six months now,” said Amy Bennett, the assistant director of OpenTheGovernment.org and the point person for a coalition of transparency groups working to pass the bill. “But the banks only started raising objections in the last week. Wall Street’s lobbyists are going to their allies on Capitol Hill and are asking them to delay it. But Wall Street just wants to kill the bill.”

Both Sen. Tim Johnson (who argued against the bill before its last-minute Senate passage) and John Boehner have received large amounts of funding from industries tied to Wall Street, according to information gathered by OpenSecrets.org. Boehner stopped the bill in its tracks by keeping it out of Congress' hands during the final moments of the lame duck session. Boehner's implicit message is that the good of the special interests outweighs the good of the many. Thanks to this, government agencies are still free to abuse FOIA exemptions and force the truly tenacious to take their chances in the federal court system if they hope to get their hands on documents the government would rather keep buried.

Filed Under: foia, foia reform, john boehner, patrick leahy

Seattle Privacy Activist Attempts To Kill Accountability With Transparency

from the it-was-the-requester-in-the-basement-with-the-gmail-address dept

You'd think that accountability and transparency would never get this screwed up. But theoretical good can sometimes become a practical nightmare.

The Seattle police department -- one of several police departments around the nation to have spent some time under the DOJ's microscope -- is only weeks away from starting their body cam pilot program. This is good.* Or was, right up until the unlikeliest of wrenches was thrown into the works: a Freedom of Information request.

*Caveats apply.

Now that plan may get put on ice, due in part to an overly broad public records requests. The Seattle Times reported this morning that an anonymous man, known only by the email address policevideorequests@gmail.com, has made an official request for "details on every 911 dispatch on which officers are sent; all the written reports they produce; and details of each computer search generated by officers when they run a person’s name, or check a license plate or address."

The requestor also wants all video from patrol car cameras currently in use, and plans to request video from body cams once they are implemented. He has requested the information "every day, in spreadsheet form."

Look, I'm one of the biggest fans of freedom of information laws and police accountability, but what the anonymous requester is demanding creates a massive logistical headache. The problem is the request can't necessarily be denied because the state law doesn't provide a legally-sound escape hatch to use to turn down overly-broad requests. Faced with this request, the city created it own exit strategy: pulling the plug on the body cam program.

Not that the requester's intentions were pure. The unnamed requester (who is in his 20's and lives with his parents, according to the Seattle Times) has an ideological ax to grind.

“I think what we need is some sort of balance between transparency and privacy,” the requestor said.

The man, who runs a YouTube channel of police video and audio, also spoke to Reuters, stating his belief that "state law is simply too liberal when it comes to privacy."

The requester is hoping to make the city realize that body cams create potential privacy problems, presumably by posting as many unredacted recordings as possible. Audacious, if a bit disingenuous. Fortunately, the city and the privacy activist have reached an agreement.

The programmer agreed to drop his requests if given videos in a deal that would then see him advise the department on thorny tech issues related to public-records requests for videos, such as how to more quickly redact footage and how to store it online for easy access by the public, media and lawyers.

"Under the law, they get requests regardless of whether or not I go away, and they view what I do as part of the solution," the programmer, a man in his 20s, told reporters at a joint news conference with police in which he declined to reveal his identity.

With this agreement in place, the body cam pilot program is back on track. The comfort level of Seattle citizens may not be where it once was, however, not after watching the city being extorted into handing the control of body cam footage over to someone who still lives with his parents.

In the long run, this will probably result in less information and less accountability. Someone has given legislators a pretty good reason to patch holes in their freedom of information laws, and given them every excuse to load up on additional restrictions and exemptions. The anonymous requester may have made a point about privacy, but the end result will likely be more secrecy.

Filed Under: body cameras, body cams, foia, police, privacy, seattle

Sen. Rockefeller Sitting On FOIA Improvement Act, Despite Two Unanimous Votes In Favor Of Passage

from the bipartisan-support-meets-gov't-agency-resistance dept

A FOIA reform bill that sailed through both the House (410-0) and the Senate Judiciary Committee (again with a unanimous vote) is currently stalled, having gone nowhere for the past two weeks thanks to Sen. Jay Rockefeller.

The Freedom of Information Act Improvements Act (hereinafter cited as "FOIAIA") helps put the "freedom" back in the FOIA -- something that has a chance to trim down the number of requests that result in fully-redacted pages or federal lawsuits. Rockefeller has expressed some concerns about the openness of the open records law improvements.

"I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses," Rockefeller said in a statement Friday. "According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill."

The two agencies offering up the most resistance to the bill appear to be the FTC and the SEC, both of which apparently feel the law creates a playground for targets of its investigations.

[S]ources said the agencies' concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.

There also appears to be a law enforcement contingent pushing for death of this bill as well.

"The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that 'the agency reasonably foresees that disclosure would harm an interest protected by' the exemption invoked," said a Rockefeller aide who asked not to be named. "Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes."

Transparency advocates point out that privileged attorney-client communications will remain privileged even with the passage of the bill and that government agencies will still retain the power to redact information and withhold documents -- they'll just need to start providing better explanations for these actions. As for the concerns about the new "forseeable harm" requirement? That requirement isn't even new.

"Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton's term. It was only during President George W. Bush's term of secrecy that this standard was rolled back," [Patrice McDermott of OpenTheGovernment.org] wrote.

So, it appears Rockefeller is hoping the whole thing just goes away. The reform bill had already been watered down post-House passage and additional concerns raised by Tom Coburn had been addressed, resulting in him releasing his hold on the legislation late last week. Now, it's up to Rockefeller to do the same. If he doesn't do it by the end of the day on Monday, the bill dies.

As it stands now, Rockefeller is standing alone among his fellow senators and representatives. Two unanimous votes -- one in the House and one in the Senate -- are being negated by a single Senator. Supporters of FOIA reform are urging people to contact his office and make it clear that Rockefeller alone shouldn't get to decide whether this bill lives or dies, especially considering its path to this point.

Sen. Jay Rockefeller
Phone: 202-224-6472
Fax: 202-224-7665
Email: Sen.Rockefeller@opencongress.org
Twitter: @senrockefeller

Filed Under: foia, ftc, hold, investigations, jay rockefeller, sec, transparency

USPTO Acts Like A Three-Letter Agency, Redacts A Bunch Of Stuff About Its Kid-Friendly 'T. Markey' Character

from the the-Mickey-Mouse-of-government-trademark-office-mascots dept

Before the 2009 National Trademark Expo, an event most of us have marked on our calendars EVERY YEAR, the US Patent and Trademark Office (USPTO) decided to design a kid-friendly trademark mascot to act as an ambassador to all the future Kleenex and Xerox designers nestled within America's younger demographics.

What the office came up with was a Poochie for the IP wonk crowd (10 and under division). Here's T. Markey doing something approaching rad in celebration of the 2012 National Trademark Expo. There's also a QR code on the poster, which probably does whatever it is that QR codes do. Trendy as hell.

Parker Higgins -- EFF member and IP wonk in his own right -- FOIA'ed any documents related to the skateboarding, hang gliding, hot air ballooning mascot and received not only several pages of badly-scanned mockup art, but several pages of badly-scanned redactions [pdf link]. Because the USPTO is nothing if not extremely secretive about its… searches for existing design elements?


The USPTO drops the dreaded b(5) exemption all over its internal emails, withholding stuff seemingly just to be withholding stuff, which is what the b(5) exemption does best. Supposedly this exemption is limited to memos or letters that would not be available to anyone but a "party in litigation with the [responding] agency," but in this case, seems to cover information otherwise in the public domain.

Here's another redacted set of search results, covering variations like MARKY or MARKEY appearing on clothing. Hopefully, the two pages of black ink are covering up images rather than words. Otherwise, it would appear that the MARKY/MARKEY market is incredibly overcrowded.


Why the agency decided to black out these search results is a mystery, considering the USPTO's site itself allows anyone to search for registered word and image marks. Maybe the USPTO just wanted to be like its big brothers (pun possibly intended), the FBI and the NSA, and just redact something, no matter how insignificant.

And then there's this, in which bad scanning meets a third- or fourth-generation copy to create a murky, impressionistic nightmare in which Mickey Mouse is slowly consumed by a malevolent but iconic 70s-era smiley face that oozes all-encompassing blackness.


Possibly a metaphor for something, but more likely just another piece of roadkill at the intersection of Technology and Bureaucracy. You can never be too safe when releasing responsive documents, it would appear, even when your biggest secret is how examiners maintain straight faces when approving certain patent and trademark applications.

Filed Under: foia, redactions, t. markey, trademark, uspto