District Court Orders Release Of Another DOJ Drone-Killing Memo, Cites [REDACTED] In Support

from the reading-between-the-deletions dept

New York's Southern District Court -- which has been hosting (along with the Second Circuit Appeals Court) the ACLU and New York Times' long-running, concurrent FOIA lawsuits against the government over its drone killing memos -- has reached a partial decision on some of the embattled documents.

The court's decision was actually delivered on Sept. 30th, but its conclusion and order have spent the last month under seal while the government applied its redactions. An accompanying memo from the presiding judge [pdf link] notes that the court isn't buying all the government's redaction arguments.

I disagree with the Government's redaction of the bulk of the first full paragraph and the second and third paragraphs on page 9, which as drafted by this court contain not a whit of classified material (the Government does not suggest otherwise), and which I do not believe would tend to reveal any classified information. In order to preserve that issue for appellate review, I will release on the public docket the opinion with all the Government's proposed redactions today, along with this cover note indicating my conclusion about this material. Should the Second Circuit agree with the Government that the material was properly redacted, nothing will be lost; should it agree with my view that nothing the Government has redacted on page 9 should be redacted, it will so indicate.

Indeed, page 9 of the order [pdf link] leaves almost everything to the imagination, retaining only a single sentence that really makes you wish the court hadn't deferred to the government's judgement.

The issue raised by the Government's objection to disclosure is potentially fascinating and incredibly complicated.

The rest of the document is the government's proprietary blend of abysmal scanning and heavy redactions. After some discussion about documents the government has already released and information revealed by government officials' own statements, the court drills deeper into the DOJ's redaction justifications. Of course, we can't actually read the government's reasoning or the court's reactions because the government has final cut approval. The DOJ's broad redactions remove a majority of the last 14 pages, leaving behind tantalizing sentences like:

The Government's blithe assertion to the contrary, these waiver issues are not so easily resolved

and:

if that be true, I see no reason why I am even going through this exercise.

The court orders the government to release the contested documents (legal opinions from the DOJ's Office of Legal Counsel) discussed in the order (the remaining documents related to the FOIA requests will likely be discussed next year), noting there is "no just reason for delay" considering both the public's interest in these memos, as well as the fact that it has been more than three years since the documents were requested.

So, another long-running FOIA lawsuit is showing a little return on investment. Unfortunately, the government's lengthy redactions prevent the public from seeing what arguments it's using in defense of its FOIA stiffarm, as well as keeping it from drawing any legal insight from the court's response.

Filed Under: classified, drones, extrajudicial killing, foia, killing, redacted, secrecy, transparency

New York City Court Buys NYPD's Claims Of 'National Security,' Grants It Power To 'Glomar' FOIL Requests

from the don't-have-to-confirm-or-deny-jackshit,-citizen dept

A New York City court has given the NYPD one of the few things separating it from the "big boys" (CIA, FBI and NSA): the permission to issue "Glomar responses" (the infamous "we can neither confirm nor deny...") to FOIL (Freedom of Information Law) requests. Like the audacity of the department itself in pursuing this additional method of keeping the public separated from public documents, the decision is unprecedented.

The decision appears to be the first time that a court anywhere in the U.S. has upheld the use of such a tactic by a state agency. The Glomar response has historically been used only with regard to requests made to federal agencies that involve sensitive matters of national security.

That a New York court would find in the home team's favor is perhaps inevitable. The NYPD, along with various officials, have long portrayed the safety of New York City as inextricably intertwined with the safety of the nation itself -- a view partially justified by the city's position as the epicenter of the 9/11 attacks.

But doing so allows a department with a proven track record of open hostility towards FOIL requests another way to abuse its position. On top of heavy redactions, an in-house classification system that has no apparent legal basis, and plain old stonewalling, the NYPD will now be able to simply claim it can't even acknowledge the existence of responsive documents. This shifts the balance too far in its favor.

At the federal level, use of Glomar responses is premised on the argument that there are certain matters of national security that would result in irrevocably harm if divulged to the general public. It has been criticized by open government groups, including the Reporters Committee, because it allows agencies to deny FOIA requests without giving detailed reasons that the requesters can argue against. Once an agency invokes the Glomar doctrine, courts generally afford it great weight and rarely inquire further.

And that's at the federal level, where claims of national security should carry with them a bit more credulousness. The actual "Glomar" in the original "Glomar response" referred to the CIA salvage vessel being used to find a sunken Soviet submarine. These days, it's used to tell FOIA requesters that the NSA can neither confirm nor deny it uses terms like "collect it all," or has compiled any data at all on the requester him/herself.

The NYPD has now been granted a federal power, without having to show its national security claims are valid. If the requested documents do indeed contain information possibly damaging to national security, why isn't there a federal agency involved? It's well known that the NYPD prefers to run a highly autonomous agency -- one that inserts itself into terrorist investigations overseas but openly rebuffs FBI assistance in its own town. But if you're going to claim you may or may not be in possession of investigatory documents with national security ramifications, then you should also be asked to explain why the FBI, DHS or other national agency isn't included on the CC line, and why this federal agency isn't the one kicking out the Glomar response.

Considering the documents currently being Glomared ("...a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque…") are related to the counter-terrorist investigations of the recently shuttered "Demographics Unit," there's a good chance no federal agency would touch them with a 10-foot redaction. The division seemed to pride itself on willful violations of civil liberties, but this methodology turned the (often minimal) fruits of its investigations too toxic for even the CIA to partake in.

So, the NYPD may actually be sitting on something that implicates national security, but it's finding no federal takers thanks to its inability to respect the Constitution or to work well with others. That's a problem. But it's not nearly as much of a problem as being granted a new power to abuse in its quest for law enforcement opacity.

Filed Under: foia, foil, glomar, national security, new york city, nypd

NSA Says Secrets It Leaked To The Press Are Too Secret To Be Disclosed Publicly

from the sorry,-only-anonymous-officials-are-allowed-to-cause-exceptionally-grave-damage dept

Steven Aftergood of FAS Secrecy News went searching for an answer to an almost-unanswerable conundrum. And he got the most nonanswer-like answer imaginable.

As we all know, there are two kinds of leaks: the one the government approves of, utilizing anonymous officials, and everything else. Aftergood wanted to know more about these authorized leaks, in which classified information is handed over to journalists, etc. in response to queries, usually with several stipulations attached. It happens so often there's even a provision in the Intelligence Authorization Act, which gives the NSA and others the funds and permission to keep doing what they're doing.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill.

There's a report out there that details all of the authorized disclosures of classified information to press members who are decidedly not cleared to receive classified documents. This authorized release of classified document generates it own oxymoron.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

Knowing that a.) this happens and b.) a report is generated when it occurs, Aftergood requested a copy of these authorized disclosure reports. The answer he received defies logic in only the way a secretive bureaucracy can. [pdf]

“The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

The stuff we already disclosed is too dangerous to disclose.

And yet, the government -- when it serves its interests -- will "cause exceptionally grave damage to national security" by handing classified information over to press members willing to carry its narrative water.

One of the biggest open secrets in Washington is that, despite officialdom’s intensive efforts to demonize whistleblowers like former NSA analyst Edward Snowden, the vast majority of disclosures of secret information are not “leaks” but “pleaks” — a term Columbia Law Professor David E. Pozen coined to describe something that is more like an official “plant” than a “leak.”

George W. Bush and Dick Cheney were particularly adept at selectively disclosing secret intelligence findings that served their agenda – even while aggressively asserting the need to keep secret the information that would damage them.

We saw evidence of this most recently when the government tried to head off The Intercept's publication of leaked terrorist watchlist documents by leaking its own version to the Associated Press shortly before the Intercept piece went live.

It's ridiculous for the government to claim documents leaked from unauthorized sources are somehow still secret even though the public has access to them. For it to make the same claim for documents it selectively chose to "leak" is preposterous and highly hypocritical. Aftergood and FAS have appealed this decision, stating, “It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA."

Whether or not this will have any effect on the NSA remains to be seen. But so far, the only proven method to obtaining documents from the highly-secretive agency seems to result in Russian exile.

Filed Under: authorized leaks, classified, foia, leaks, nsa

EPIC Sues CIA For Release Of Senate Spying Report

from the FREEDOM-THROUGH-LITIGATION dept

The CIA's spying on Senate staff members during the compilation of the "Torture Report" (last seen delayed until late October) provoked some righteous (but hypocritical) indignation from political figures who were otherwise fans of government surveillance of American citizens. Dianne Feinstein's dismay may have been genuine, but it was also completely tone-deaf.

CIA director John Brennan said no spying occurred while also admitting some spying had occurred. Further details revealed by an Inspector General's investigation noted that spying continued after Brennan finally told everyone to knock it off, using a classified "hacking tool" to peer into Senate staffers' email accounts.

Nothing further has been forthcoming about the subject. The DOJ said it wouldn't investigate the issue and calls for Brennan's resignation have been ignored. The Office of the Inspector General obviously has a deeper read on the tactics used and who was involved, but all the CIA's been willing to part with is a one-page summary. The one-page document points at impropriety but doesn't fill in the blanks.

“That doesn’t give you any information about what actually happened, how purposeful this was, how high-level these people were,” EPIC associate director Ginger McCall told The Hill. “Were these high-level agency officials versus just minions down at the bottom?”

“There’s not a lot of information in this and it certainly doesn’t say anything about what they’re doing to remedy the problem or how these people are being dealt with,” she added. “That’s what we’re interested in finding out.”

EPIC is now suing the CIA over its refusal to respond to a FOIA request for the full report. The lawsuit [pdf link] notes that the group has "exhausted all remedies," which is certainly true if the "responding agency" doesn't bother to respond. EPIC is also asking for several more stipulations to be granted along with the release of the requested document.

WHEREFORE, Plaintiff prays that this Court:

A. Order Defendant to conduct a reasonable search for all responsive records;
B. Order Defendant to promptly disclose to EPIC responsive records;
C. Order Defendant to produce a Vaughn Index identifying any document or portion of a document withheld, stating the statutory exemption claimed, and explaining how disclosure would damage the interests protected by the claimed exemption;
D. Order Defendant to grant EPIC news media status;
E. Order Defendant to grant EPIC a fee waiver;
F. Order Defendant to grant EPIC expedited processing;
G. Award Plaintiff its costs and reasonable attorneys’ fees incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E) (2013); and
H. Grant such other relief as the Court may deem just and proper.

It may seem like EPIC is jumping the gun by pulling the trigger* on an FOIA lawsuit a mere two months after requesting the documents. But look at it this way: it could have waited for six months… or a year… and still have been ignored or denied. Leading with a lawsuit is nothing more than playing the FOIA game efficiently. If the responding agency doesn't bother to respond within the statutory deadlines, you may as fire off a lawsuit to get the process moving.

*Shoutout to Thomas Friedman, yo!

Filed Under: cia, foia, senate, spying
Companies: epic

Ferguson's Strategy Regarding Journalists: Charge Insane Fees For FOIA Requests

from the filing-charges dept

Say what you want, but one thing has become abundantly clear since the whole Ferguson debacle began: the people running and policing that city aren't interested in your concerns. Throughout this entire process, the city and its police force have obfuscated the facts and people involved in the shooting of a civilian, they have cynically released information and videos when it suits them, and they've treated journalists covering the story with the kind of contempt they normally reserve for their own constituents. And now, utilizing a method previously beta-tested by both local and federal law enforcement agencies, they've decided the best way to respond to the ongoing outcry is to try to charge insane amounts for FOIA requests.

Officials in Ferguson, Missouri, are charging nearly 10 times the cost of some of their own employees' salaries before they will agree to turn over files under public records laws about the fatal shooting of 18-year-old Michael Brown. The city has demanded high fees to produce copies of records that, under Missouri law, it could give away free if it determined the material was in the public's interest to see. Instead, in some cases, the city has demanded high fees with little explanation or cost breakdown.

In one case, it billed The Associated Press $135 an hour — for nearly a day's work — merely to retrieve a handful of email accounts since the shooting. That fee compares with an entry-level, hourly salary of $13.90 in the city clerk's office, and it didn't include costs to review the emails or release them.

Allow that to sink in for a moment and marinade in your brain juices: information that could be given for free if it was of public interest is instead being billed at ridiculously high rates. Does anyone seriously want to argue that more transparency out of the Ferguson government isn't in the public's interest? Of course not. This is all about intimidating journalists and trying to put roadblocks in front of likely damning information. Ferguson has a public relations problem in the truest form and their strategy appears to be to freeze out journalists trying to provide information to the public. That won't win them any friends.

And don't think that this strategy is used rarely.

The Washington Post was told it would need to pay $200 at minimum for its requests, including city officials' emails since Aug. 9 discussing Brown's shooting, citizen complaints against Ferguson officers and Wilson's personnel file. The website Buzzfeed requested in part emails and memos among city officials about Ferguson's traffic-citation policies and changes to local elections, but was told it would cost unspecified thousands of dollars to fulfill.

Inquiries about Ferguson's public records requests were referred to the city's attorney, Stephanie Karr, who declined to respond to repeated interview requests from the AP since earlier this month. Through a spokesman late Monday, Karr said Missouri law can require fees but she didn't address why charges specific to the AP's request were nearly tenfold the lowest salary in the city clerk's office. Karr said searching emails for key words constitutes "extra computer programming" that can bring added costs.

Searching emails by keyword now equals "programming?" Brilliant! Although I suppose it's not as egregious as suggesting shooting unarmed civilians equals "policing."

Filed Under: fees, ferguson, foia, journalism, mike brown, missouri

CIA Can't Let You Know How Much It Paid For A Single Amiga Computer In 1987 [Updated]

from the and-the-closest-without-going-over... dept

Update: After all that, the CIA says this was just "an error" and a new version will be released tomorrow without the redactions. Of course, that raises other questions about how the error happened and how often such errors don't get caught. Original story below.

Steven Aftergood at the FAS (Federation of American Scientists) Secrecy Blog came across this interesting redaction of mundane information while perusing the "Studies in Intelligence" journals recently released by the CIA. In an article [pdf link] touting the purchase of a product that would forever change the world of the CIA's in-house video production department, the actual purchase price has been redacted.

If you can't read/see the picture, it says:

We bought our first Commodore Amiga in 1987, for less than [REDACTED] including software.

Twenty-seven years later, this dollar amount still can only be speculated on. (Aftergood prices it out with Wikipedia's help.) It couldn't have been much, though. The preceding paragraph states:

We did not have a big budget, so we were tempted to buy the system with petty cash.

Does the CIA actually believe some sort of irreparable rift in the National Security Complex might occur if this dollar amount from three decades ago (unadjusted for inflation) was made public? Probably not. Aftergood theorizes that it's a blanket exemption used to redact more sensitive dollar amounts and this innocent cost just became collateral damage during the rush to declassify several dozen documents in response to an FOIA lawsuit court order.

CIA seems to have adopted a declassification rule dictating that all of its expenditures, no matter how trivial, shall be withheld from disclosure, except in extraordinary cases (or the occasional mistake). The Agency might go on to argue that such a rule actually facilitates disclosure by expediting the declassification review process. That’s because instead of needing to pause to consider the potential ramifications of any individual spending disclosure, the Agency can proceed more quickly by simply withholding all such figures.

So, there's the excuse for over-redaction, even if it isn't much of one. Aftergood points out that efforts have been made to scale back overbroad classification and redactions since 1997, but little if anything has come of those attempts -- part of the reason why so many FOIA requests end in lawsuits.

Also of note: the author's adoration of the new technology leads to the innocent Amiga being used for evil.

We are experimenting with photo enhancement and colorization of black-and-white photography. Future Executive Summaries will include "Turnerized" ground photos.

While this CIA doc is good for a few laughs at the agency's overprotective tendencies, it must be noted that these documents stem from former CIA agent Jeffrey Scudder's FOIA request -- a request that ended his career and saw his house raided by the FBI, which seized every electronic device it came across. The CIA destroyed the life of a 19-year employee who had served the agency in Africa, Afghanistan and Iraq in order to withhold things like a three-decade-old computer purchase.

Filed Under: cia, computers, foia, secrecy

Austin Police Officer Tries To Paint Police Accountability Groups As 'Domestic Extremists' In FOIA'ed Emails

from the sovereign-citizens-more-ridiculous-than-threatening,-honestly dept

An activist is a terrorist, at least according to Senior Police Officer Justin Berry of the Austin Police Dept. While the terms aren't mutually exclusive, a person can be one without being the other. In Berry's mind, they're both, and he feeds off the FBI's paranoia to reach his conclusion.

If you can't read it, it basically says that Berry has come across some information on a "national domestic extremism trend" that is echoed by local activist groups. He claims to have found "mirror warning signs" in "FBI intel." From there, his own report follows, naming such unlikely domestic extremists as CopBlock, CopWatch and Peaceful Streets. Also included are sovereign citizens groups and government accountability activists. [pdf link]

A nationwide movement has begun against the United States Government and all government officials including those at the local level and the police officers employed by these agencies (Anonymous, 2012). Locally, numerous activists have combined their programs to work together towards the same agenda, which seems similarly in line with that of the national revolution movement…

Here's the list of groups Berry believes are an imminent threat.

Peaceful Streets Project Austin, TX- Leader and Founder Antonio Buehler

Cop Block- Austin, TX

Cop Watch- National and Local

Texans for Accountable Government Austin, TX (State and Local legislative front) - Leader and Co-Founder John Bush

Occupy Austin- Austin, TX (Political)

Lone Star Sovereign Mutual Aid Response Team Austin, TX (legal aid and blanket calling) - Leader and Founder John Bush

Anonymous- Global (Computer Hacking and obtaining of personal and banking information)- Unknown

Oath Keepers- A first responder and military organization supporter group- National (Police Information Source)- Unidentified Members, one known member within the Austin Police Department

Institute for Justice- National. Texas Chapter Headquarters in downtown Austin, TX (Legislative Arm)- Unidentified at this time

His report goes on to say that these disparate groups share common members and acknowledges that the operations themselves are often peaceful -- or at least, not directly violent. But he calls out individual members for social media posts containing broad threats or other antagonistic behavior as being indicative of these groups' latent potential for violence.

Below is several screen shots that show these organizations intentions, statements, and goals that should not be discredited as mere chatter, but considered an active threat until after November 5, 2012...

Unfortunately, the screenshots are not among the documents posted at antimedia.org [which also include discussion of an online impersonation charge that likely went nowhere], but anyone who's perused a few comment threads or Facebook posts can probably imagine what was included. In any group, there are always a few commenters who will advocate for violence in response to police misconduct and abuse. These are generally not indicative of the group in total, but do tend to skew higher in certain activist groups. Rather than address the threats as words of individuals, Berry tries to tie the whole thing together as a revolutionary force composed of sovereign citizens, police accountability activists and Anonymous itself. Then he uses a movie to illustrate the severity of the situation.

A good visual of what they are hoping for can be seen in the movie for V for Vendetta. basically what they are basing all their movements off of. At time marker 1 hour 42 minutes a detective is heard telling the plan which is basically hoping one police officer will make a mistake and poor decision, in the case of the movie killing an unarmed child committing a minor offense. They then used that event to bring out regular people to support their cause. Though in real life they do not have numbers needed to pull anything like that off, which is why they will have to create a problem by claiming one-thing ahead of time, then forcing police to take a certain action. My concern is that John Bush has already stockpiled up weapons…

… and so on. Fortunately, Justin Berry's hysteria (possibly prompted by some recorded run-ins with members of these groups) falls mostly on deaf ears. Much more measured responses are given by other law enforcement officers and supervisors.

Following the notification that Peaceful Streets was planning to hand out free cameras to citizens to record police activity, Lt. Robert Richman had this to say.

Please see Tom's email below. It summarizes a very good approach to use while discussing the recent "video" activist movement with our officers. If our officers encounter any problems with the activists. please have them bookmark the incident via DMAV and send me a copy of the case number.

Although we don't anticipate any issues, officers should always be cognizant of their officer safety and the safety of the citizens on scene. If problems do arise. officers should be well versed on the various tools available within the law that may assist them. A few examples are:

Texas Penal Code 38.15 Interference with Public Duties
Texas Transportation Code. Section 552.006 Use of Sidewalk (Le. Pedestrian in Roadway)

Calming, but with a hint of authority behind it. He references "Tom's email," which is even more forthright in its assertion that recording police officers is perfectly acceptable behavior.

I have reminded my officers that there is nothing wrong with citizens recording us while we work. Don't let someone bait us into a negative confrontation.

The would-be camera-persons are to keep their distance and not interfere with the Incident. I have told my guys that 30' is a fair guideline for acceptable distance, since any closer and the subject becomes a potential immediate threat, which causes an officer to divide their attention. However this will be up to the officer to reasonably articulate if they decide to enforce this. Ultimately, maintain officer safety and if the person attempting to records us legitimately interferes with a police incident, arrest them.

I have encouraged my officers to welcome the recordings and present a pleasant professional image for the cameras. "Smile and wave, gang. Smile and wave" - The less our officers respond to the baiting, the more quickly they will tire of their game.

Lt. Tom Sweeney's advice is sound, although he's a bit wrong to belittle recording police officers as a "game." To some, it undoubtedly is, but to many others, it's one of the only forms of officer accountability available to average citizens.

As to Justin Berry's breathless statements that activists are endangering police officers by posting their personal information online, Lt. Richman chills his heated assertion with obvious facts.

Additionally. some officers have complained about the activists posting links on Face Book tothe officer's pay and other personal data. Officers should be reminded that our pay is actually public record and easily found as is many other bits of information via a simple Google search. Officers should be reminded to lock down the security settings on their Face Book accounts and to cleanse any personal data they find on the internet by contacting the site which shows the data.

Antimedia.org portrays this as a wholesale libeling of these activist groups, but what's released here appears to be nothing more than the fruits of one officers' personal, um, vendetta. As was briefly mentioned earlier, Berry has had multiple run-ins with one of these activist groups -- Peaceful Streets -- and appears to be hoping to find a "legal" way to mute their presence (note how it's listed first and explained in the greatest detail). The other cops in the thread appear to be much more pragmatic, even up to the point of feeling citizen recordings are a "game" that activists will tire of if officers refuse to rise to the "bait." Berry's inferences are objectionable but he seems to be finding little support. Without that, there's not much he can do.

Filed Under: accountability, austin, extremists, foia, texas

Ferguson PD Lies About Why It Released Videotape Of Store Robbery, Lies Some More When Confronted With The Facts

from the worst.-wagon-circling.-ever. dept

In the wake of the shooting of Michael Brown, the Ferguson Police made several ill-advised moves. The biggest was the paramilitary force that greeted protests, looking for all the world like a unit flown in from Kabul, followed shortly thereafter by the detainment of several journalists. The decision to withhold the officer's name was also received poorly, but this was complicated by one baffling move -- the release of a store surveillance tape that appeared to show Brown stealing cigarillos from a local store shortly before he was shot dead.

This tape's release was purely self-motivated. Even the Dept. of Justice -- which had stepped in shortly after everything went to hell in Ferguson -- advised against it. The only conceivable reason for the release was a post-facto "justification" of Officer Darren Wilson's decision to shoot an unarmed man several times.

But the Ferguson PD tried to cover up this motivation. Matthew Key at TheBlot has dug into the events surrounding the release of the surveillance tape and found nothing but Ferguson PD lies.

The chief of police for the Ferguson Police Department misled members of the media and the public when he asserted that his hand was forced in releasing surveillance footage that purported to show 18-year-old resident Michael Brown engaged in a strong-arm robbery at a convenience store minutes before he was fatally shot by a police officer.

The tape -- released on the same day the PD belatedly revealed the name of the officer who shot Brown -- was supposedly released as the result of "multiple" FOIA requests from journalists and other citizens.

“We’ve had this tape for a while, and we had to diligently review the information that was in the tape, determine if there was any other reason to keep it,” Jackson said at the press event. “We got a lot of Freedom of Information requests for this tape, and at some point it was just determined we had to release it. We didn’t have good cause, any other reason not to release it under FOI.”

But another FOIA request exposed this claim for what it is. TheBlot used a FOIA request to obtain all FOIA requests sent to the Ferguson PD. And it couldn't find a single one that specifically requested that tape.

Last month, TheBlot Magazine requested a copy of all open records requests made by members of the public — including journalists and news organizations — that specifically sought the release of the convenience store surveillance video. The logs, which were itself obtained under Missouri’s open records law, show only one journalist — Joel Currier with the St. Louis Post-Dispatch — broadly requested any and all multimedia evidence “leading up to” Brown’s death on Aug. 9.

With that lie uncovered, the Ferguson Police decided to double down. A statement issued to TheBlot claimed that multiple other FOIA requests were made orally, due to heavy traffic to the city's website and email server. Possibly believable, but was anyone logging these verbal requests? And could this be where the multiple requests for the surveillance video originated? The answers are "yes," "well, actually no," and "shut up."

The first response:

City of Ferguson attorney Stephanie Karr said that “many requests were made verbally due to the fact that the City’s website and email were down at several points during that week” and that “city personnel cataloged all requests and treated them in the same manner as it would any Sunshine Law request.

So, if they were logged, there'd be some record of a bunch of people asking for the release of the surveillance tape, right? Cue backpedal #1:

Karr responded to a request for comment Saturday afternoon by denying the City of Ferguson had a log of verbal records requests.

“You assume that the Custodian of Records, somehow, logged every single question, statement or request for information, verbal or otherwise, made to every single police officer, city employee, consultant, appointed official or elected official,” Karr told TheBlot by e-mail. “That assumption is, quite simply, wrong and unrealistic.”

Actually, TheBlot didn't "assume" anything. It simply took Karr's first statement at face value. Apparently, everything about the first statement was a lie. On top of that, the Ferguson PD may have violated the Sunshine Law by not logging requests it filled or denied. TheBlot has a request in for the logged verbal FOIA requests and in the meantime notes that the PD is still withholding both the incident report for the shooting (which may not even exist) as well as the incident report for the robbery.

Just a little more evidence pointing towards the unreliability of public officials, especially when caught in the middle of misconduct. Not only has the PD apparently lied about its reasons for releasing the tape, but it continues to withhold information about its involvement in the shooting of Michael Brown. Earlier, it claimed Officer Wilson suffered injuries -- possibly severe -- during his "interaction" with Brown. Those have proven false as well, with Wilson's own post-shooting text messages saying nothing about sustaining an injury as well as citizen video showing Wilson standing around the shooting scene for several minutes without seeking medical attention.

Odds are, no one directly requested this video. The release of the video coincided with the forced release of the officer's name in a blatant attempt to provide justification for his actions. While undoubtedly true that the city's website and email server have been hit pretty hard during the past few weeks, that's no excuse for city employees to fulfill or deny FOIA requests without documentation -- especially when its track record so far shows an urge to bury and obfuscate.

Filed Under: ferguson, foia, lies, mike brown, missouri, police, release, videotape

Government Agencies Can Come After Your Paycheck If You Don't Pay Your FOIA Fees

from the we-used-your-money-to-make-it-and-now-we're-taking-your-money-to-print-it dept

The struggle to force the government to behave in a transparent fashion often runs through the FOIA process. When the government responds, it often takes out meaningful information by abusing FOIA exemptions. When the government doesn't respond, the "free" request becomes a rather expensive trip through the nation's courts.

Even when the government responds, it may decide not to waive fees, leaving the requester to come up with anything from several hundred to several thousand dollars in order to see documents created with taxpayer funds by federal employees. Entities like MuckRock deal with this obstacle through crowdfunding. But not every requester has access to this sort of support. If the documents are delivered without full payment (some just require a first installment of a certain percentage), the government can come after you for the uncollected fees.

But the government's collection efforts go beyond series of increasingly angry letters. According to information compiled by indispensable blog Unredacted, the government has the option to start docking your paycheck.

In a letter to the FOIA Advisory Committee, Michael Ravnitzky points to an article at Washington-focused blog The Hill that indicates that some government agencies are willing to use this method to collect unpaid FOIA fees. [pdf link]

I would like to bring the following issue to the Committee’s attention: application of Administrative Wage Garnishment to fees assessed for Freedom of Information Act requests.

Federal agencies have begun exploring and instituting a new weapon to use against FOIA requesters: wage garnishment. Here is a link to an article that mentions two agencies: one that is implementing wage garnishment and one that has decided not to do so after receiving some unfavorable feedback.

http://tinyurl.com/FeeGarnishment

In this case, two agencies have already sought permission to use wage garnishment in FOIA cases for unpaid fees. A number of other agencies have established rules implementing the Administrative Wage Garnishment - AWG - provisions of the Debt Collection Improvement Act of 1996 - DCIA, but do not mention FOIA specifically. Other agencies are in the process of such rules, or are planning to add such rules.

As he cautions, the use of this collection method will only further encourage onerous and abusive fees.

Agencies often impose disproportionate fees that have the effect of deterring certain types of requests. For example, requesters frequently receive large fee letters without benefit of a preliminary call or note from the agency to discuss the possibility of a narrowed or more specified request, or to help clarify fee status.

Agency staff often charge review fees to noncommercial requesters, despite the fact that such fees are inapplicable. Agency staff frequently seek to charge search fees to newsmedia requesters, again despite the fact that such fees are inapplicable.

Noncommercial requesters are subject to search and review fees when responses are not provided within the statutory deadlines, even though the law precludes such fees, agencies asserting that all or nearly all the records requests they receive are subject to unusual and exceptional circumstances. Agencies even have imposed large page by page duplication fees, even when supplying electronic copies of records that already exist in electronic form.

As Ravnitzky notes, this form of collection is particularly intrusive and can have adverse effects on requesters. For the citizen on the receiving end, this can adversely affect current and future employment, as well as possibly prevent them from obtaining housing or vehicles. For those already employed, it informs employers of little more than the fact that their employee owes the government money -- which implies all sorts of unseen dishonesty.

Ravnitzky calls it the "nuclear option," one which certain agencies might deploy as further discouragement for future FOIA requests. Every government agency has many other options to resolve this issue (blocking of further requests and withholding of remaining responsive documents, to name a few) that this fee extraction method shouldn't even be on the table.

The most disgusting aspect of this is that certain agencies (and I imagine there will be more who warm to the idea) feel entitled to take funds (well, additional funds) right out of citizens' paychecks to pay for documents created, stored and distributed by taxpayer-funded agencies and taxpayer-funded employees. This isn't like a federally-funded school loan where the government has spotted a member of the public the money to finish their education. This is the government extracting fees for information it won't release until asked and charging ridiculous amounts for it. The fact that this method is available to government agencies is its own chilling effect, running directly contrary to the spirit of the Freedom of Information Act.

Filed Under: foia, garnishing wages, wages

City Of London Police Turn Down Torrentfreak's FOIA Request Because It Would Take Too Long To Fulfill

from the too-hard,-won't-try dept

The City of London Police (notably, not the London Metropolitan Police and you will rue the day you ever make that mistake) have been both a law unto themselves and the UK's foremost copyright cops… which would make them a copyright law unto themselves… or something. Name another law enforcement agency that has single-handedly done more to pursue the Pirate Bays of the world. I follow this sort of stuff pretty closely and no one else even comes close. Here's a very brief rundown of the City of London's efforts in the service of King Copyright.

- Ordered registrars to shut down websites (without a court order) and threatened to strip registrars' accreditation if they didn't comply

- Created a secret "pirate site blacklist" for advertisers

- Inserted banner ads on "pirate" websites stating the sites had been forwarded to the police for "review," all without any legal basis to do so

- Arrested the creator of an anti-censorship proxy service, basically because Hollywood told it to

- Claimed Tor is "90% of the internet" and a "risk to society." Also: "bitnet."

Torrentfreak (which follows this sort of stuff extremely closely) sent a FOIA request to the City of London police seeking correspondence with "representatives of the creative industry regarding the pirate bay also known as TPB, thepiratebay.se, thepiratebay.sx, thepiratebay.org, or Pirate Bay."

Forget all the nice things I said about the UK's more relaxed attitude towards Freedom of Information requests. (Well, not all of them. This is a police force that serves the copyright industry, not the UK government itself.) The response to Torrentfreak basically says that it would require making an expenditure of time and as such, falls outside the expense guidelines for FOIA responses.

“In order to establish the existence of any correspondence of this kind it would be necessary to examine all mail systems, all call logs and all files/documents held by the force,” the reply read.

“The cost of completing this work would exceed the limit prescribed by the Secretary of State in accordance with powers contained in Section 12 of the Freedom of Information Act. The limit is currently set at £450 and the hourly rate is set at £25.”

If so, then any request that might require 18 hours of work will automatically be tossed out. On one hand, this almost seems like an admission that the City of London Police communicate frequently with representatives of creative industries. On the other, it seems like an easy way to blow off a request for information it's in no hurry to release.

This sends Torrentfreak back to the drawing board and raises serious questions about the City of London's computer system. (Then again, the assertions about "bitnet" and "the internet is 90% Tor" raise a few technology-related questions of their own…) Any correspondence system utilized by governments should be searchable, including anything archived. It's not as though this sort of technology is obscure and limited to entities with unlimited budgets. It's fairly basic stuff. But the City of London police maintains it's a job that would exceed the time budget and, therefore, Torrentfreak gets nothing.

Torrentfreak will be revising its requests in hopes of finding something that's not too time-consuming for the City of London police to tackle. If and when these are released, I'm sure they'll make for entertaining and enlightening reading, provided they aren't redacted into complete uselessness.

Filed Under: city of london police, foia, uk
Companies: the pirate bay, torrentfreak