German Government Refuses FOI Request By Pointing Out Document Already Leaked

from the well-played dept

Freedom of information requests are a powerful way of finding out things that governments would rather not reveal. As a result, requests are often refused on a variety of grounds, some more ridiculous than others. The Netzpolitik blog points us to a rather unusual case concerning a request by the politician Malte Spitz for a letter from the Chief of Staff of the German Chancellery to members of a commission investigating intelligence matters. The request was refused on the grounds that the document was already freely available (original in German):

The information you requested may be obtained free of charge on the Internet by anyone, in a reasonable manner. The letter from the Chief of the Federal Chancellery, Federal Minister Peter Altmaier, to the chairman of the first committee of inquiry of the 18th legislature, Professor Dr. Sensburg, is publicly available and published in full at the following link:

https://netzpolitik.org/2014/drohung-des-bundeskanzleramtes-wir-veroeffentlichen-den-brief-in-dem-uns-altmaier-mit-strafanzeige-droht/

The Netzpolitik link included there leads to an article that a few weeks earlier had not only leaked the document requested by Spitz, but also noted wryly that the letter from Altmaier threatens anyone leaking documents with legal action.

The German bureaucracy should be applauded for taking the adult view that once a document is leaked, it is publicly -- and officially -- available. This contrasts with the childish attempts by the British government to pretend that Snowden's leaks never happened, and its refusal even to pronounce the name of some of the surveillance programs he revealed.

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

Filed Under: foia, freedom of information, germany, leaks

Senators Hoping To Keep CIA From Destroying Most Of Its Employees' Emails

from the agency-replacing-'delete'-buttons-faster-than-ever dept

The CIA and Senate have found more to fight about. With the "Torture Report" mostly in the hands of the White House at this point, the two are now battling over the CIA's planned alterations to its email retention policies.

Key senators are pushing back against a CIA plan to destroy older emails of “non-senior” agency officials.

The heads of the Senate Intelligence Committee on Wednesday sent a letter opposing the proposal, under which only the highest ranking CIA workers would have their email correspondence permanently saved.

The plan “could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public and the courts to know,” Chairwoman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) wrote to the National Archives...

The senators are asking the National Archives to step up and somehow prevent this from happening -- most likely by declaring "non-senior" emails to be retainable records that must be turned over rather than destroyed. The CIA would prefer to destroy the emails of all but the top 22 employees three years after they leave, or when "no longer needed, whichever is sooner." Unfortunately for the senators making this request, the National Archive has already signaled its agreement with the CIA's proposed retention schedule changes.

In tentatively approving the request, the National Archives noted that the emailed information “is unlikely” to exist in other forms that will be marked for permanent storage.

Any information not found in those other files likely “has little or no research value,” it added.

Senators Feinstein and Chambliss -- in rare agreement with transparency and government accountability activists -- disagree with the National Archives' assessment.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” Feinstein and Chambliss wrote.

Longer retention is needed, especially for an agency as secretive as the CIA. The standard wait period for sensitive document declassification is 25 years. Correspondence related to declassified documents will be long gone by that point.

Even in terms of normal FOIA requests, three years is cutting things close. Rarely does an FOIA-worthy event come to light within days or weeks of its occurrence. It's generally weeks, months or years down the road. By the time documents are requested, ignored by the CIA's FOIA staff and finally pried free by a federal lawsuit*, responsive documents may already have been destroyed. Without a doubt, the CIA knows this is a distinct possibility and any trimming of retention periods only makes it more likely that relevant communications will be permanently removed from circulation.

*YMMV

Filed Under: archives, cia, email, email retention, foia, history, records, senate, torture report

Report Says Customs And Border Protection Shoved 12,000 Unanswered FOIA Requests Into Boxes And Forgot About Them

from the your-tax-dollars-hardly-working dept

The Government Accountability Office has taken a look at the DHS and its handling of FOIA requests, and it doesn't like what it sees. There are plenty of numbers in the report but the most incredible number is this: 23,000 FOIA requests mishandled by a single agency under the DHS's control. [pdf link]

Nonetheless, CBP experienced a large increase in the number of its backlogged requests from fiscal year 2011 through fiscal year 2013—from 4,356 requests to 37,848 requests. According to CBP officials, two problems, in particular, contributed to the higher numbers. First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system. The officials stated that CBP subsequently cleared all of these requests.

Unfortunately, the report doesn't contain any further details on how these events occurred. The preceding paragraph notes that the CBP has taken steps (hiring/training additional staff, extending agreement with USCIS to handle FOIA processing) to tackle its backlog of requests, but there's nothing explaining how 11,000 requests were "improperly closed" or how 12,000 requests managed to bypass the FOIA system completely, only to reappear in a stack of boxes located elsewhere.

Part of the problem seems to be the DHS itself. The agency is supposed to be fixing its lousy FOIA response system, which includes every agency under its oversight. But the DHS is too big to do the job properly. When it was formed in 2003, the DHS assumed control of 22 agencies and offices as well as absorbed 209,000 federal employees. By 2014, this had grown to 28 agencies and offices.

The GAO pointed out serious flaws in the agency's FOIA processes since 2008, along with handing down several recommendations. Most of that has been ignored or implemented badly. (Pretty much par for the course for an agency another GAO report bluntly stated "had no project management skills.") For the most part, the "solution" has been to throw warm bodies at the request backlog. In a better system, this might have worked. But the DHS's underling agencies seem to all have different ideas as to what tracking and response system works best, resulting in a snarled "network" of responders that creates more problems than it solves.

Responsibility for processing FOIA requests is decentralized among DHS’s Privacy Office and component agencies...In addition, each of the selected components has its own program and procedures for processing, tracking, and reporting FOIA activities... Further, while the selected components report their FOIA processing costs to the Privacy Office, which then aggregates this data, these reported costs are incomplete, thus hindering accountability for the total costs incurred by the department and the components in managing and processing FOIA requests. Also, duplication exists in the processing of certain requests for immigrant files that are handled by two of the selected components.

This table highlights part of the problem:


Only half of the six agencies are using the same system. ICE is using FileMaker Pro in addition to using FOIAXpress, partially nullifying the interconnectedness of the system it shares with two other agencies. The Coast Guard is using nothing more than off-the-shelf Excel to handle its FOIA requests.

Because of the disparate methods and lack of interagency connectivity, the GAO notes that it is unable to provide a completely accurate picture of the DHS's FOIA processes, both in terms of backlogs and costs incurred.

Due to the non-reporting of particular cost categories and concerns about the accuracy of certain reported cost data, including data with obvious errors and inconsistent accounts of how data were collected, we concluded that, overall, the cost data provided were not sufficiently reliable, based on federal management cost accounting standards, to determine DHS’s total FOIA costs, but that our analysis allowed us to conclude that overall costs were underreported...

In examining reported data on the volumes of FOIA requests made to DHS, we found two data reliability issues of concern. First, we found that a FOIA request may be recorded and counted more than once… Similarly, a request sent to more than one component may be entered separately by each component that responds. Nonetheless, while this double counting may result in an inaccurate number of total requests received by DHS, it did not affect our findings, since we have no findings related to the overall volume of requests handled by DHS.

When it's all said and done, the DHS accounts for nearly half of the government's 95,000-request backlog. Part of it is due to its size, which encompasses some agencies (CBP, ICE) many Americans are seeking more and more information from. But the rest of it is on the DHS itself, which has been informed of its deficiencies since 2008, but has made very little forward progress.

Filed Under: cbp, customs and border patrol, dhs, foia

Small Change To National Archivist's Powers May Keep Government Agencies From Destroying Embarrassing Documents

from the keeping-information-secure-until-it-can-be-freed dept

There may be some better news on the way for those of us who like free-as-in-FOIA information and an accountable government. Professor and attorney Douglas Cox points out that an amendment to the statutes governing the National Archive may give that agency the power to keep records of public interest from being deleted, destroyed or otherwise hidden.

Having passed every step but presidential approval, H.R. 1233 (Presidential and Federal Records Act Amendments of 2014) [pdf link], makes the following small, but important, change to the Archivist's powers and duties. Here's the portion Cox highlights at Document Exploitation:

DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.

As Cox explains, this single paragraph allows the Archivist to determine what is or isn't a record -- something that must be retained -- and makes it binding across all federal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.

[T]his authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation.

Cox goes on to note that this isn't a theoretical harm. It's something that has happened time and time again over the past several years.

[F]rom the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

The loophole isn't in the "record" language. That's still very broadly defined and (unfortunately) rather malleable. The loophole is which records are "appropriate for preservation," something that has been left up to each agency to determine. And "determine" they did, right up to the point that DC circuit court judges pointed out that government agencies have a "built-in incentive" to destroy records related to "mistakes."

Cox notes that while this amendment is promising, it doesn't fix everything -- especially some records-related circular reasoning that has made its way into the definition of "records" with the assistance of the National Archives and Records Association itself. But it is a step forward.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

Cox recommends the first action it should take with its new powers (should the President sign it into law) is ensure the Panetta Review is designated a permanent federal record to keep the CIA from performing any extra "editing."

Filed Under: archives, documents, foia, history, national archives, public access

Michigan University Claims Its Public Records Retention Period Is Whatever Each Employee Wants It To Be

from the too-much-"freedom,"-not-enough-"information" dept

Michigan University has come up with a novel approach to "complying" with the state's Freedom of Information Act: the Highly-Subjective Document Retention Schedule.

Here's Michigan University spokesman Rick Fitzgerald responding to the Michigan Daily's inquiries.

“It’s our policy that it’s up to individual users to determine their own document retention. The University doesn’t have a set schedule.”

That's right. Anyone employed by the University can hold onto public records (like internal emails) for whatever time period they deem personally appropriate, whether it's one day… or one year… or "aging off" documents the moment they're requested.

This lack of a set schedule runs contrary to state law.

State law stipulates that public records be kept and disposed of in accordance with a formal schedule, which requires that correspondence be retained for two years after the date of its creation before it can be destroyed.

This retention free-for-all explains why the Michigan Daily hasn't had much success in obtaining documents from the school this year during its attempts to investigate the athletic director's forced resignation and the expulsion of a football player over violations of the school's sexual misconduct policies.

The University's spokesman claims the school is exempt from state law because it's not a state agency. But the law says otherwise.

While the penal code does not explicitly define the University as an “office or agency of the state of Michigan,” the Freedom of Information Act does, stating: “All state agencies, county and other local governments, school boards … and public colleges and universities are covered.”

In fact, as the Michigan Daily points out, the University itself has made the same claim spokesman Rick Fitzgerald is now denying.

The University has argued in court multiple times that it is a state agency, including the 1994 case of Moore v. University of Michigan, regarding the firing of a whistleblower in the school’s information technology department. The case centered on “whether (the University) can be characterized as an arm or alter ego of the state,” according to the case brief. The University prevailed in court on the back of an argument that it is “an extension of the State.”

Inquiries sent to other local colleges show that Michigan University is an anomaly in its refusal to adhere to the state's FOIA law. The school's "do what thou wilt" retention policy may result in it being fined. State law provides for a $500 fine plus compensatory damages for "arbitrary and capricious violations" of the Act, as well as an additional $1,000 fine and/or two-year prison sentence if it can be proven that University employees willfully destroyed records. Unfortunately, for a university of its size and wealth, these fines clearly aren't much of a deterrent.

Filed Under: foia, michigan, public records, rick fitzgerald
Companies: michigan university

How Do You Have A Town Of 300 Residents... And 100 Police Officers? You Let Anyone 'Buy' A Job As A Cop

from the another-ISIS-threat-thwarted! dept

Oakley, Michigan has only 300 residents. Up until very recently, it also had 100 police officers. How does a town end up with a police force equal to one-third of its population? To answer that question, you have to go back to when it had a single police officer.

Oakley, Mi. is barely a town at 300 people, only one streetlight and, until recently, one police officer. The one cop was good at his job, reports Vocativ's M.L. Nestel, until he was forced to step down after getting caught stalking a teenage girl.

A new chief, Robert Reznick, was installed. He immediately began hiring new officers. The one officer that had policed the town for several years without incident was replaced with twelve full-time officers. Then Reznick went further, allowing civilians to buy their way onto the police force.

Here's how the chief's program works: The wanna-be officers pay about about $1,200 for a uniform, bullet-proof vest and gun, and some make additional donations to the police department. In return, they get a police badge and the right to carry their gun almost anywhere in the state, including places that people with normal gun permits can't, like casinos, bars, stadiums and daycare centers.

This proved to be very popular, even pulling in a couple of non-resident NFL players as auxiliary officers. Needless to say, running a pay-to-play police force tends to generate problems. Complaints were raised about the heightened police presence at a local event that had run peaceably (if rather rowdily) for years.

The concerns raised echo those stated by Oakley Bike Run President Randy Sutter back in 2011.

"We have successfully held this event in its current location, in this village for 13 years without a single major incident. In past years, the one Oakley Police officer provided the necessary presence for the entire weekend without a problem. This year, we were adorned with 15 police officers, uniformed and undercover, two police cars, a golf cart and a K-9 unit. The view down Main Street looked as if the village had been locked down from some deadly viral outbreak and at any moment the National Guard would be rolling in with personnel carriers to escort us all into a containment zone."

Sutter went on to claim that the number of officers negatively affected participants' perception of event's safety and was causing harm to both his event and the businesses supported by the influx of non-residents.

2014's complaints included further instances of perceived abuse and misconduct.

Brandi Bitterman, a member of the family that owns the Oakley's Family Tavern, claimed her fiance was wrongfully arrested and harassed during bike weekend. The man, who was arrested at the Family Tavern, refused to provide his name.

This wasn't Chief Reznick's first tangle with Bitterman and her bar. In 2013, Reznick was accused of harassing one of the tavern's bartenders.

Reznick has defended his out-sized police force and his actions even as council members have called for his dismissal. Since that point in early September, the police force has been shut down and revived several times.

The police force was suspended due to its lack of insurance coverage. It later put itself back to work -- without a council vote -- after purchasing $500,000 in coverage from a company willing to overlook numerous ongoing lawsuits against the department, as well as its large number of honorary gun toters.

Since that initial shutdown failed to take, the stakes were raised by a county court, which ordered the disbandment of Reznick's ad hoc police force. It also ordered the return of all equipment in use by the numerous auxiliary officers. Chief Reznick refused to comply with the order, resulting in many items being forcibly retrieved by outside law enforcement agencies.

Now, with several news agencies looking to obtain the names of the auxiliary officers "employed" by Reznick, an unlikely person has stepped in to block the release of this information.

Herschel Fink, a longtime First Amendment defender who has represented several Detroit area TV networks (along with some national outlets), is the man standing between the media (and the plaintiff of a lawsuit against Chief Reznick) and the list of auxiliary officers.

Fink, in defending this action, cites both the FBI and Chief Reznick in what has to be one of the most ridiculous defenses of self-serving opacity ever.

In the undated email, Fink cited an Oct. 13 bulletin by the FBI and Department of Homeland Security that ISIS had called for attacks against law enforcement and government workers.

"To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages," wrote Fink.

So, why has Fink decided to argue against the freedom of information? Here's the answer, as noted by M.L. Nestel of Voacitv back in October.

Another guy who bought himself a badge and gun from Reznick is a white-shoe lawyer named Herschel Fink, who serves as the editorial counsel for The Detroit Free Press. Calls made to Fink's office weren't returned.

Fink is for free speech except when his position as a amateur cop is threatened. That's sickening and hopefully the Detroit Free Press will reconsider his employment in light of this hypocrisy.

Despite all the indications that Reznick's inflated police force is a bad idea for Oakley and its residents, the town may have no choice in the matter. Circuit Judge Robert Kaczmarek issued an injunction suspending the force until after last Tuesday's election. That election saw four candidates backed by the auxiliary police force elected, giving them a majority on the seven-member city council.

If you're looking for the nadir of terrorism-based rationalizing, this legal battle over the names of those "employed" in Reznick's rent-a-badge scheme is very likely it. No terrorist group would care about a loose collection of imitation cops who chipped in at least $1,200 each in exchange for some extra rights. If anything, they'd point to it as evidence of American corruption and hypocrisy -- and they'd be right to do so.

Filed Under: foia, hershel fink, michigan, oakley, open records, police, rent-a-cop, robert reznick

Homeland Security Ignores Own Guidelines To Make It Prohibitively Expensive For Media Companies To Obtain FOIA Docs

from the say-what-now? dept

I currently have a FOIA request in to the Department of Homeland Security, and the fee waiver request was initially denied because DHS told me that I was considered a "commercial requester" since I was using Muckrock's platform to make the request. We're currently appealing this designation (and DHS seems to be ignoring our appeal, as it's been months...), but in another such situation, DHS has once again, declared Muckrock a "commercial requester" in order to demand fees -- on the basis of the fact that people might actually read the documents, and that somehow advances Muckrock's "commercial" interests.

Now, some background is important here. The whole point of waiving fees for "commercial" requesters is to avoid companies doing things like building up private databases by use of FOIA requests and then selling them. It's not for the purpose of blocking commercial media properties from doing journalism with the documents. In fact, Homeland Security's own FOIA guidelines make it clear that for-profit media operations using FOIA for reporting purposes are not commercial requesters:

A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.

Seems simple enough, but apparently the DHS wants to ignore its own guidelines when it comes to Muckrock. Here's what DHS told Muckrock:

Regarding the "commercial requester" classification, the Agency has also properly determined that the requested records would be used for commercial purposes. Although you assert that any responsive documents would be made available to the public for free on MuckRock's website, the Agency must balance the commercial interest against the public interest. Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes. Your request does not provide any information that would allow the Agency to determine that the public interest outweighs this commercial interest.

But, that kind of argument makes no sense, and would effectively mean that basically all news media organizations who post the relevant source documents from FOIA requests are no longer considered "news media" requesters, but rather "commercial requesters." Because, of course, part of the media function of posting any such document is to "drive traffic." As Muckrock points out in response to this news, there are over 300 media organizations who contribute such documents to DocumentCloud (and we're among them). Many of those organizations are for-profit and clearly media operations. The attempt to claim that Muckrock is a "commercial requester" is clearly ignoring both the clear intent of the commercial requester status and DHS's own guidelines in how to deal with media requests from for-profit media properties.

It's almost as if Homeland Security is looking for bogus excuses to make it prohibitively expensive for media sites, reporting in the public interest, to actually get the documents they request.

Filed Under: commercial requester, dhs, foia, guidelines, homeland security, journalism, media
Companies: muckrock

Federal Judge Says Public Has Right To Know About FBI's Biometric Database, Awards $20,000 In Legal Fees To FOIA Requester

from the more-forced-transparency dept

Another win for the Electronic Privacy Information Center (EPIC) and the American public in general. A federal judge has ruled the public has the right to know certain details about the FBI's facial recognition database.

U.S. District Judge Tanya Chutkan said the bureau's Next Generation Identification program represents a "significant public interest" due to concerns regarding its potential impact on privacy rights and should be subject to rigorous transparency oversight.

"There can be little dispute that the general public has a genuine, tangible interest in a system designed to store and manipulate significant quantities of its own biometric data, particularly given the great numbers of people from whom such data will be gathered."

Not only did Chutkan compel the release of documents related to the FBI's Next Generation Identification (NGI) database, but she also awarded $20,000 in legal fees to EPIC. In the opinion [pdf link], she points out that -- despite its arguments to the contrary -- the FBI was anything but "responsive" to EPIC's FOIA request.

The FBI’s explanation for its delay in producing the requested documents is not unreasonable; the Court is well aware that compliance with FOIA requests can require significant agency time and resources. However, after EPIC narrowed the scope of its Second Request—at the behest of the FBI—the FBI had no further contact with EPIC for six months, until after EPIC filed this lawsuit. The FBI has not advanced any colorable legal reason why, after indicating that it possessed responsive documents and asking for a revised request, it simply ceased all communication with EPIC in October 2012, until EPIC sought recourse in this Court in April 2013.

Despite the FBI being more motivated by lawsuits than FOIA requests, Chutkan softens this blow by stating she saw "no evidence" that the agency behaved "recalcitrantly or obdurately." This is its standard m.o. of many government agencies, FBI included. If it wasn't, there wouldn't be nearly as many lawsuits.

The good news is that courts are recognizing (at least, now and then) that there's a very asymmetrical collection of information going on here. Agencies like the FBI gather up tons of data, much of it personally-identifiable, and then refuses to grant the public even the tiniest bit of access. When members of the public ask to see the data gathered on them (by requesting their own records), they're told that doing so would compromise law enforcement operations and methods.

The public does have a right to know what's being collected and distributed to law enforcement agencies around the nation. The public cannot simply rely on the (limited and often ineffective) oversight of its legislators. True accountability comes from outside the government, not from within it, and FOIA laws are supposed to facilitate that. A few more wins for the public will increase the effectiveness of the accountability tool, something that has been blunted tremendously by government agencies' willful opacity over the past several years.

Filed Under: biometric database, facial recognition, fbi, foia
Companies: epic

County Prosecutor Looking To Arrest Housing Official After Agency Demands $16,000 To Fulfill FOIA Request

from the a-bandwagon-worth-jumping-on dept

This may be about 60% stunt and 40% forceful nudge, but I'm still behind it 100%. For far too long, public officials have treated Freedom of Information laws as an annoyance... at best. In many cases, information designated as eligible for freedom has to be pried out of officials' hands using lawsuits, needlessly-protracted appeals processes or crowd-sourced tenacity.

Pulaski County Prosecuting Attorney Larry Jegley said he will issue an arrest affidavit today against Rodney Forte, the executive director of the Metropolitan Housing Alliance in Little Rock, for a violation of the Arkansas Freedom of Information Act.

First off, you can be arrested for violating this act. In Arkansas, any violation of its FOIA law can result in this penalty.

Any person who negligently violates any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars ($200) or thirty (30) days in jail, or both, or a sentence of appropriate public service or education, or both.

It's nice to see someone following the letter of the law. Not following the letter of the law (and steamrolling its spirit) is what put Forte in the prosecutor's sights. Forte had decided to greet a FOIA request he didn't want to fulfill with the time-honored anti-FOIA tactic of pricing his agency out of the market.

The action comes after the Metropolitan Housing Alliance sent an invoice to the Arkansas Democrat-Gazette late Tuesday,charging more than $16,000 to hire outside workers to help the agency comply with a records-release request -- a practice the Little Rock city attorney and other Arkansas Freedom of Information Act experts say is illegal.

It may be illegal, but plenty of agencies do it without suffering anything more than a loss in the court of public opinion. Sure, they may eventually face lawsuits, but that's really just public money being spent in defense of a publicly-funded agency's desire to keep the public separated from public documents. It's about as painful to the offending agency as being punched in someone else's wallet.

This particular form of enforcement is rarely (if ever) deployed, although Arkansas seems to be more aggressive than most states when it comes to punishing violators. In Jegley's 23 years as a county prosecutor, he's never seen this happen. Usually some sort of compromise between requester and requestee is reached before it gets to this point. But that hasn't happened in this dispute, which has been ongoing for several months now -- even involving Little Rock's mayor's intervention on behalf of the requesting party, the Arkansas Democrat-Gazette.

Little Rock Mayor Mark Stodola contacted Forte on Wednesday in an attempt to intervene in the latest dispute over records. Stodola is a former Little Rock city attorney and Pulaski County prosecutor.

"I am not familiar with any request for payment for such a large nature as this and based on my interpretation of the Freedom of Information Act, the computer systems that the agency has are required to make this information readily available," Stodola said.

"These kinds of document requests are routine, and when I was prosecutor, virtually all of this kind of information [at most agencies] is kept in an electronic format that can be downloaded quite easily."

Forte claims proprietary software is involved and all documents would need to be printed and scanned before they could be released, but has failed to detail what software the agency is using or released any other technical details. He has also hasn't discussed his agency's failure to comply with another section of the state's FOIA law.

Arkansas Code Annotated 25-19-105 (g) states that any software acquired by an agency "shall be in full compliance with the requirements" of the Freedom of Information Act and "shall not impede public access to records in electronic form."

So, Jegley has answered Forte's obfuscatory power play with one of his own. At this point, Forte's arrest is in the hands of a judge. Jegley still needs to turn his affidavit into a warrant, at which point it may expand to include others involved in the Metropolitan Housing Authority's $16,000 fiasco.

Hopefully, this move will force the documents out of the agency's hands. Clearly, there's something in there it wants hidden -- something likely related to agency's addition of a $92,000/yr deputy executive director during a period when it was shedding nearly a third of its staff and reducing pay to non-salaried employees.

Even if this goes nowhere, it's still incredibly refreshing to see public servants acting to hold other public servants accountable. Other states should take a good look at Arkansas' FOIA law and think about giving their own a few teeth by making violations an arrestable offense.

Filed Under: arkansas, arrest, fees, foia, journalism, larry jegley, little rock, prosecution, rodney forte

Documents Obtained By The ACLU Show NSA's Inability To Prevent Collection Of US Persons' Data And Communications

from the sued-into-translucence dept

The ACLU has freed up more NSA documents -- again as the result of a FOIA lawsuit. Some of what's been obtained provides a few more details on the NSA's reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. There's no FISA court involvement or input from Congressional oversight committees. The NSA relies almost exclusively on the good graces of the Executive Branch -- something that has worked out in its favor for the past two presidencies.

The NSA's Office of General Counsel issued a memo discussing the agency's SIGINT (signals intelligence) work in 2007 as a response to questions from the executive branch. As is par for the course, the memo expresses its concerns for the rights of "US persons," as well as the agency's strict compliance with the Fourth Amendment. All well and good as far as that goes, which isn't very far.

[W]e conclude that compliance with NSA's Attorney General-approved minimization procedures, which are required by Executive Order 12333 and are rooted in Fourth Amendment privacy protections, constrains NSA from granting to employees of other intelligence agencies widespread access to NSA content databases.

Which is true, more or less. Agencies like the UK's GCHQ are given broad access to raw, unminimized data and communications collected by the NSA, all without a warrant. The built-in argument is that the NSA doesn't release unminimized US person data or communications to its Five Eyes partners. But this distinction makes very little difference in practice.

As a practical matter, metadata from electronic communications such as email cannot be similarly shared at the moment under the same theory, because it is not possible to determine what communications are to or from U.S, persons nearly as readily as is the case with telephony, and often is not possible at all.

As a "practical matter," nearly nothing the NSA collects should be shared, considering the untargeted manner in which it's collected. The NSA can't guarantee anything about the composition of its bulk collections, but that doesn't stop it from disseminating unminimized data/communications to its foreign "customers." In fact, the document clearly states that the agency feels there are zero protections inherent in "meta data," which means the sharing of identifying information (like phone numbers) with foreign intelligence agencies is perfecty acceptable.

A more recent memo -- issued in 2013 -- notes the further expansion of its powers under EO 12333. The document describes the 2008's modification of the 1981 Order, which consolidated signals intelligence programs under the Director of the National Security Agency. This also brought the Director of the CIA onboard as the head of Human Intelligence. The FBI was also brought in under the expansion of this directive, which added a new layer of middle management -- "functional managers" -- to the mix. These positions are in place to "weigh" the effectiveness of the interconnected agencies' programs against the "National Intelligence Priorities Framework," something that has rarely worked out in favor of privacy or civil liberties.

Filed Under: 4th amendment, eo 12333, executive order 12333, foia, nsa, privacy, surveillance, us persons
Companies: aclu