Canadian Politicians Work Towards Transparency Reform By Keeping Relevant Documents Secret

from the the-first-rule-of-open-records-reform... dept

Following in the proud tradition of governments everywhere who believe a push for transparency is best performed under the cover of darkness, the Canadian legislators behind an attempt to update the Access to Information Act have decided to keep their transparency discussions secret.

The Treasury Board Secretariat has chosen to withhold key memos to minister Scott Brison on reforming the antiquated Access to Information Act.

Prime Minister Justin Trudeau’s government has promised to amend the access law so that federal information is open by default.

But Canadians aren’t allowed to see the advice from officials on how to reach that goal.

The Canadian Press used the access law to request recent briefing notes and memos to Brison on possible reforms. However, entire pages were withheld for fear of revealing government advice, consultations or deliberations.

The Canadian Press notes the government didn't have to redact these pages. While there is an exemption for deliberative documents, it's purely discretionary. The good news is that the unredacted portions of the documents seem to indicate a desire to strengthen the public's access, rather than weaken it. It also appears the rewrite will expand the law's coverage to more agencies.

But, for now, all other details are still only known to the public's representatives, leaving the people they represent in the dark. It's tough to mobilize support (or express objections) if voters don't know who's asking for what.

Then there's the fact that this reform effort has been in the works for four years now with very little to show for it. The 1983 law isn't equipped to handle a mostly-digital world and, as in every country with a national open records law, the government has become quite adept at exploiting loopholes to avoid having to turn over documents.

Long-standing problems with the access to information law have prompted calls for a substantive change, something the Conservative government, like previous governments, has been reluctant to do.

For example, instances where requesters got absolutely nothing increased by 49.1 per cent over the last five years. And during the same time period, the number of requests that were extended beyond their original 30-day deadline increased by 18.6 per cent — a slower rate of increase than the growth of requests, but still acknowledged as a problem.

Bureaucracies are never efficient, but it gets even worse when reform efforts target something everyone says they're committed to (transparency) but is actually the last thing they want. Four years and a regime change later, the efforts are still inching forward. Meanwhile, the public is being told indirectly that the best thing it can do is sit on the sidelines and wait for their representatives to decide what's best for them, rather than inviting them to participate in a discussion of great interest to them.

Filed Under: canada, secrecy, transparency

San Francisco Legislators Dodging Public Records Requests With Self-Destructing Text Messages

from the 'this-transparency-will-self-destruct-in-5...-4...' dept

You can call it irony. Or bullshit. But what you can't call it is good government. Cory Weinberg of The Information reports San Francisco legislators [warning: paywalled link] are using one of those infamous tools o' terrorism -- messaging service Telegram -- to dodge open records requests. [Link to a non-paywalled story covering the same thing]

In an interview, a San Francisco government staff member said they were encouraged to use the app by colleagues in City Hall who described it as a way to skirt the city’s public records laws. “That is exactly what it’s being used for,” the staff member said. “It’s caught on.”

[...]

April Veneracion, a top aide to Supervisor Jane Kim and a Telegram user, said one reason officials use the app is because it “self destructs.” She also praised the app’s chat room feature that “allows us to be in touch with each other almost instantaneously.”

Yes, messaging apps are great for instant communications. Self-destructing messages, however, are antithetical to public records laws. Also: possibly illegal. Veneracion loves instachat. Keeping up with her obligations to the public? Not so much.

She said she didn’t know if it violated the city or state’s public records laws. “I should find out though!” she wrote in a message.

Unfortunately, those who are on top of public records laws aren't exactly sure either.

San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force, said the task force’s administrator Victor Young.

Presumably, these discussions are being preserved. (Not that it matters. Most deliberative discussions fall under public records exemptions.)

Whatever the real reason for using self-destructing messages to conduct government business, it's clear those using Telegram really don't want to discuss their actions.

San Francisco supervisor Aaron Peskin, who has been seen by The Information as active on the app, didn’t return requests for comment. One government official said Supervisor Kim also uses Telegram. She didn’t return requests for comment.

Legislators and government employees aren't allowed to choose which laws to comply with any more than the rest of us. (Theoretically...) Communications between government employees that are subject to open records requests need to be carried out on platforms where they can be searched and archived. This means no use of Telegram, just like it means no setting up your own private email server.

The irony, of course, is that legislators are currently discussing encrypted communications (including encryption bans) and how law enforcement can no longer obtain communications they used to be able to grab with a warrant. Meanwhile, their own communications are being withheld from the public record... using encryption and automatic destruction. Perhaps the public needs to start issuing statements about how they used to get all these text messages with public records requests but can't anymore, thanks to the efforts of the government.

Filed Under: city council, encryption, public records, record keeping, san francisco, self-destructing, transparency
Companies: telegram

California Legislator Looking To Close Law Enforcement's Open Records Loophole

from the forced-transparency-is-apparently-the-ONLY-kind-of-transparency dept

While other states seem distressingly focused on exempting law enforcement from greater transparency -- whether by crafting new loopholes in FOI laws or deciding body camera footage should remain in the control of police -- California is going the other way.

State Sen. Mark Leno, seeking to tighten accountability amid a national conversation over police shootings and a push for law enforcement reform in San Francisco, introduced a bill that would roll back a 1978 law and subsequent Supreme Court rulings that prompted cities to close police disciplinary cases to the media and the public.

This is Leno's second attempt to rewrite the law that created an accountability shelter for police officers. It must be said this is a much better idea than the San Francisco PD's response to a recent high-profile shooting: limiting officers to firing two bullets each during interactions with citizens. Despite more public support for greater law enforcement transparency, Leno still faces a tough battle to push this legislation through. As in any other push for police accountability, those pushing back are the usual, powerful suspects.

Harry Stern, an attorney who represents officers around the Bay Area, slammed the proposal, linking it to the San Francisco Board of Supervisors’ recent approval of a day of remembrance for Mario Woods, the stabbing suspect whose video-recorded killing by police sparked protests and a federal review of the city force.

Harry Stern works for the deputies' union and, like many other union reps, feels the real problem with today's policing is everyone else.

“No one is against accountability,” Stern said. “But when politicos press an agenda that includes declaring a day in honor of a violent felon, one must consider their motives with a jaundiced eye. ... In today's criminal-friendly, antipolice climate, we need fewer baseless public floggings of cops, not more.”

Actually, it seems pretty clear that some people are against accountability, with a large majority of them acting as police union reps. No one likes "baseless public floggings," but union leaders have made it abundantly clear they're not too fond of justified floggings either, whether performed in public or not.

Another law enforcement union is also looking to block the bill.

San Francisco Police Officers Association officials will be among those fighting the legislation. Nathan Ballard, an adviser for the union, said that while officers support efforts to bring transparency — including having officers wear body cameras — the union will oppose legislation seeking “to undo the California Supreme Court’s ruling that protects police officers’ privacy interests.”

For public figures who act under the color of law and wield an immense amount of power, police officers (or at least their union reps) seem awfully sensitive about their (mostly-imagined) privacy. The public should have access to police misconduct records, including the names of officers involved. The unions pretend this will lead to "public floggings" by those with ulterior motives, like politicians and the media. But the simple fact is that law enforcement remains a revolving door for bad cops, allowing them to move from one agency to the next with minimal effort. Access to police misconduct records will allow outside parties to keep tabs on job-surfing habitual offenders -- an essential aspect of accountability very few law enforcement agencies seem willing to perform themselves.

Filed Under: california, foia, law enforcement, mark leno, police, transparency

Warrant For FBI's Hacking Technique Makes No Mention Of Hacking Or Malware

from the just-a-big-ol'-auto-scoop,-but-delivered-secretly dept

Motherboard has obtained a copy of the warrant used by the FBI to deploy its NIT (Network Investigative Tool) to obtain information about visitors to child porn site "Playpen." This site was seized by the FBI and left running for two weeks while it gathered information.

The prosecutions tied to this investigation have been interesting, to say the least. The FBI's short run as child porn site hosts received a judicial shrug -- something courts have done in the past when confronted with disturbing government behavior in service of combating crime. These have also led to the government arguing -- and the court echoing -- that Tor users have no expectation of privacy, as sooner or later, everything comes down to an IP address.

The warrant itself is slightly redacted, but that's hardly a surprise. More surprising is the fact that it has been released at all, as the FBI usually argues for the sealing of documents related to its investigations, especially in cases where law enforcement tech and methods are discussed.

As far as the details contained within, most of what's known about the FBI's NIT has already been discussed. As Motherboard's Joseph Cox points out, there are a few interesting aspects to the warrant request. For one, it makes it clear the FBI will be running a child porn site for the duration of the "search."

“While the TARGET WEBSITE operates at a government facility, such request data associated with a user's actions on the TARGET WEBSITE will be collected,” the affidavit, signed by Douglas Macfarlane, an FBI special agent, reads.

While the document claims the FBI has no other way to ascertain the IP addresses and locations of users connecting to the website, it also goes light on the details of what it plans to do. The NIT is discussed in terms of what it's capable of gathering, but goes very, very light on technical details. Nowhere in the document does the FBI refer to its NIT in terms more applicable to its function, like "malware," "spyware" or "hacking." The FBI describes its NIT this way:

In the normal course of operation, websites send content to visitors. A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, the TARGET WEBSITE, which will be located in Newington, Virginia, in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user's computer successfully downloads those instructions from the TARGET WEB SITE..., the instructions, which comprise the NIT, are designed to cause the user's "activating" computer to transmit certain information to a computer controlled by or known to the government. That information is described with particularity on the warrant (in Attachment B of this affidavit), and the warrant authorizes obtaining no other information. The NIT will not deny the user of the "activating" computer access to any data or functionality of the user's computer.

This lack of details could be problematic.

Critics are worried that the language of NIT applications is too vague for judges to grasp what exactly it is they are authorizing; the words "malware" or "hacking" are never used, for example. (Magistrate Judge Theresa C. Buchanan, who signed off on the NIT, has repeatedly declined to answer questions from Motherboard.) The NIT was used to access computers in the US, Greece, Chile, and likely elsewhere.

Speaking of foreign nations, the FBI apparently had some outside assistance in this case.

In December of 2014, a foreign law enforcement agency advised the FBI that it suspected IP address 192.198.81.106 , which is a US-based IP address, to be associated with the TARGET WEBSITE. A publicly available website provided information that the IP Address 192.198.81.106 was owned by [REDACTED] a server hosting company headquartered at [REDACTED] Through further investigation, FBI verified that the TARGET WEBSITE was hosted from the previously referenced IP address. [...] Further investigation has identified a resident of Naples, FL, as the suspected administrator of the TARGET WEBSITE, who has administrative control over the computer server in Lenoir, NC, that hosts the TARGET WEBSITE.

The fact that documents from sealed cases related to the FBI's Playpen investigation are being released publicly shows that even opposed forces can sometimes arrive at the same plan of actions, even if their motivations are completely different.

In Washington, the lawyer for a defendant captured with the assistance of the FBI's NIT is hoping to put the FBI's apparent overreach on display by requesting the unsealing of documents. The FBI, on the other hand, isn't putting up much of a fight to keep these sealed. The affidavit in this related case contains graphic descriptions of child porn images found on the site. People who generally don't believe the ends justifies the means often make exceptions for more heinous criminal activity like this. The public outing of sealed docs could persuade fence-sitters to come down on the side of the FBI, even if the agency's use of NITs is hardly limited to cases involving crime the public overwhelmingly finds completely repugnant.

Filed Under: darknet, doj, fbi, hacking, malware, network investigative tool, nit, playpen, tor, transparency, warrants

FOIA Request Results In Details Of Administration's War On FOIA Reform

from the presume-openness,-but-don't-you-dare-act-on-that-presumption dept

Do you like irony? Documents obtained by the Freedom of the Press Foundation (and shared with Jason Leopold of Vice) through an FOIA request show how the Obama administration and various agencies worked together to dismantle FOIA reform efforts. "Presumption of openness," my [REDACTED].

The documents confirm longstanding suspicions about the administration's meddling, and lay bare for the first time how it worked to undermine FOIA reform bills that received overwhelming bipartisan support and were unanimously passed by both the House and Senate in 2014 — yet were never put up for a final vote.

Jason Leopold has also obtained some documents of his own. These show the SEC and FTC were also instrumental in preventing the FOIA reform bill from landing on the President's desk.

It's an annual tradition. Legislators will offer up an FOIA reform bill, usually with broad support, and it will end up going nowhere. Too many agencies would prefer to leave the FOIA as it is -- intermittently useful but far too often reliant on lawsuits and endless appeals to wrest documents out of the government's hands. Exemptions are abused and agencies further contribute to the general opacity by ever-so-slowly upgrading their digital document-handling capabilities and outdated (and incomplete) search systems.

As Leopold notes, the 2014 effort to reform the Freedom of Information Act passed out of the House with a 410-0 vote. And then it was left to die as agencies like the DOJ and SEC stepped in to halt forward progress.

The administration released its own talking points in opposition of the reform effort, claiming that any more openness would throw the machinery of government into disarray.

The White House claimed it would increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests, according to a secret six-page DOJ set of talking points turned over to the Freedom of the Press Foundation along with 100 pages of internal DOJ emails about the FOIA bill.

The DOJ pushed back the hardest. And the administration not only allowed it to do this, but actively supported it in its efforts.

Remarkably, the talking points go on to say that the DOJ opposed the administration's own instructions that called on agencies to act with the "presumption of openness" as stipulated in Holder's guidelines and Obama's presidential memo. The DOJ, they said, would "strongly oppose" any attempts to codify it into law.

Despite its opposition to codifying a "presumption of openness," the DOJ considers itself to be the paragon of governmental transparency.

Last year, in testimony before the House Oversight and Government Reform Committee, Melanie Pustay, who heads the DOJ's Office of Information Policy (OIP), which is supposed to ensure that all government agencies adhere to Holder's guidelines, told lawmakers that the DOJ is doing a great job with FOIA. She graded the agency five out five on "presumption of openness."

A completely laughable assertion. At least someone called out the DOJ for this statement.

"Five out of five, on an effective system in place for responding. Proactive disclosure. Are you kidding me?" Committee Chairman Jason Chaffetz asked Pustay. "The Department of Justice gives themselves a five out of five on proactive disclosure. You really think anybody in the world believes the Department of Justice is the most — they're at the top of their game, they got an A-plus, five for five? Do you really believe that?"

No one believes that. Not even the DOJ. The FBI is more secretive than the CIA. And both the DEA and FBI have a long history of refusing to turn over documents to the DOJ's Inspector General, to say nothing about the general public.

Suspicions of administration intervention were raised after then-Speaker of the House John Boehner simply sat on the bill until the last legislative session of the year closed in December 2014. But no one's been able to obtain any solid information to back up theories or confirm the agencies most instrumental in killing the bill. Legislators aren't talking about it. Administration officials won't discuss it. So, the same tool the administration won't fix was used to find out why it won't -- and which agencies fought back the hardest.

The balance of power in the government is such that it only takes a few recalcitrant agencies and a few cooperative legislators to effectively nullify the wishes of senators and representatives who passed the reform bills unanimously. That the administration had their back is no surprise. Despite its bogus claims of "most transparent administration ever," this administration has done more to decrease accountability and transparency than any other administration to date.

Filed Under: doj, foia, obama administration, secrecy, transparency, white house

Two Former White House Tech Advisors Tell The President To Actually Be Transparent About Trade Deals

from the what-a-concept dept

Two former Obama tech staffers -- Professor Colleen Chien (who advised the administration on intellectual property issues) and Quentin Palfrey (who worked for years in the Commerce Dept and the Office of Science and Technology Policy on intellectual property issues) -- have written a fantastic opinion piece for The Hill, arguing that the White House has one last chance to actually be transparent in trade negotiations as it moves forward with the TTIP agreement with the EU. The piece notes that part of the reason that the TPP agreement is in so much trouble was its secrecy:

Largely due to the secrecy of the negotiation process, the TPP long bred suspicion. When its terms finally became public last fall, opposition to the process quickly hardened into opposition to the agreement’s terms – which both Democrats and Republicans say need improvement before it can be passed. The text has been 10 years in the making, but only recently did the public get access to its terms. Since multiple leaks made most of the negotiated terms an open secret, why did the Administration wait so long to formally disclose the text?

They admit that the USTR's standard answer -- that trade negotiations rely on secrecy, and you don't want to give up an advantage -- may have some validity, but argue that it's almost certainly outweighed by other factors. They then raise three key points for being much more open and transparent on trade deals (all issues we've raised in the past):

1. Quality suffers when there is no free and open debate.
2. "Exporting U.S. law" is hard and can lead to unintended consequences.
3. Trade policy should reflect our democratic ideals

To be honest, all three of these are basically the same argument phrased differently, but they're all valid points. And they then urge the White House and the USTR to take the (not really that big) step of opening up the negotiating texts of the TTIP agreement. Since it's just between the EU and the US, it's not even as complicated as the TPP where you were negotiating with over a dozen countries. And the EU has been much more transparent in negotiating its trade deals, and has pledged to be on the TTIP as well. So, really, why does the USTR continue to take such an undemocratic, archaic viewpoint in negotiating these deals? The only explanation that makes sense is that it's the best way to sneak in favors for certain industries -- and given the ongoing "revolving door" between the USTR and certain large, legacy industries, perhaps that really does explain most of the issue.

Filed Under: colleen chien, democracy, obama administration, quentin palfrey, secrecy, tpp, trade, transparency, ttip, ustr

Canadian Cablecos Dodge Government Demand For Cheaper TV Bundles -- By Hiding Them From Consumers

from the compliance-tap-dance dept

This week, the Canadian government will begin forcing Canadian cable operators to provide cheaper, more flexible cable TV packages. Under the new CRTC rules, companies must provide a so-called "skinny bundle" of discounted TV channels starting March 1, and the option to buy channels a la carte starting December 1. But while the CRTC's attempt to force innovation on the cable industry may be well-intentioned, it's already clear that Canadian cable operators plan to do everything in their power to tap dance around the requirements.

One of the tricks, apparently, involves companies like Rogers and Bell simply refusing to seriously advertise the new options to consumers. A Bell training document leaked to the CBC clearly tells employees that they shouldn't even bring up the option unless the customer asks:

"The Bell training document states: "Do not promote the Starter TV package. There will be no advertising, and this package should only be discussed if the customer initiates the conversation."

In addition to refusing to advertise the new options, Bell and Rogers employees tell the news outlet that the packages are saddled with a large number of below-the-line fees, so that what appears to be a bargain is anything but once Canadian consumers actually get their bills:

"The Bell document also shows that add-ons to the basic "Starter" pack can become so costly that what was supposed to be a good deal for Canadians could wind up, in some cases, costing more than their current cable bill..."They're making the skinny basic package simply unbuyable," he said. "What's been explained to me is that maybe one per cent of people would be interested in getting it."

So whereas the new option may be advertised (barely) as a discounted tier, once you saddle the tier with restrictions, fees, hardware rental charges and other below-the-line surcharges, consumers won't be getting much of a deal. And, unless the CRTC is willing to police each and every bill and force total pricing transparency on misleading fees (which neither the FCC nor CRTC have much of a history with), the entire effort risks being for naught.

The other problem is that even if cable operators are forced to offer better, cheaper, TV options, they'll just turn around and recoup any lost revenue on the broadband side of the equation. In Canada, that historically has involved hitting uncompetitive broadband markets with usage caps and overage fees -- just like Comcast's efforts here in the States. Given the TV sector is ripe for disruption from Internet video either way, it may make more sense for regulators to focus their attention solely on boosting broadband competition, letting traditional, expensive television continue its slow but steady death spiral.

Filed Under: a la carte tv, canada, crtc, transparency, tv bundles
Companies: bell, rogers communications

NYPD Says It Has No Record Of Asking Disney To Use Copyright To Shut Down Times Square Characters, Despite Public Admission

from the FOILed-again dept

It's hard to imagine in the depths of this frigid New York winter, but last summer the city seemed to be in the grips of a Times Square Problem. Costumed characters -- and the relative newcomers, painted topless women -- were declared a public enemy, begriming the otherwise idyllic tourist mecca of midtown. But the NYPD, tasked with enforcing this mandate, had a problem: with only about one crime reported per day in Times Square, there's not a lot to actually enforce.

So, as Techdirt and others reported at the time, the Department tried to get IP law to step in. Posessed of a legal theory that wouldn't have survived much scrutiny, Commissioner Bill Bratton (or one of his employees) approached Disney and Marvel, asking them to sue the costumed performers for copyright infringement. The companies declined. We know all this because Bratton confirmed it to media outlets last August. In CNN:

The NYPD confirmed to CNNMoney that Commissioner Bill Bratton asked Disney and Marvel to sue for copyright infringement. But according to the NYPD, the companies aren't biting.

And in the Daily News:

The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.

The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.

Lest you think, "But how would this all fit with the First Amendment?", later in the same interview Bratton gives a remarkable quote that shows exactly how much respect he holds for freedom of speech:

Bratton also took a shot at Times Square artists like Andy Golub, whose specialty is using naked people as his canvas.

"What he is effectively doing is flaunting the first amendment," he said. "Well, it may be an artistic expression, but it repulses the average person, and this is what we’re dealing with."

Given that stance, the copyright requests of Disney and Marvel seemed like they might be extraordinary. So just after these news reports were published, late last August I made a public records request for the communications -- or records of the communications -- under New York's Freedom of Information Law (FOIL).

I should not have expected much. After all, NYPD was given an "F" grade for its FOIL compliance by then Public Advocate Bill de Blasio in a 2013 survey of New York agencies. At least at that time, nearly a third of FOIL requests to NYPD simply went unanswered. Over a quarter took more than 60 days to process.

And when my request was acknowledged, I was told a review for the records would take 90 business days. Already, that's an outrageously long time for an agency to take. FOIL allows some flexibility in response times, but 90 business days is about four months -- too long for the records to be useful to a follow-up story, and far too long to allow me to refine my request and send in for more information.

Alas, this wasn't a top priority for me, and I accepted the 90-day timeline without appeal. So a little more than three months later, I got the word: "this unit is unable to locate records responsive to your request." In other words, no responsive documents; I get nothing.

What could this mean? As I see it, there are just a few possibilities.

• First, maybe I phrased my request in a way that doesn't describe the records they do have. I think I was pretty accurate with my description, but you be the judge:

  Communications and/or records of communications from January 1, 2012 to August 28, 2015 between the New York City Police Department and representatives of Disney, Marvel, The Jim Henson Company, Sesame Workshop, Sanrio, Viacom, Nickelodeon, DC Comics, Warner Brothers, Lucasfilm, or Nintendo of America, pertaining to or addressing the use of costumed characters in or around Times Square. Such communications, in the form of encouragement to Disney and Marvel to initiate copyright litigation, have been acknowledged by the NYPD to CNN in an August 28 story titled, "NYPD to Disney and Marvel: Get Minnie Mouse and Spider Man out of Times Square"

• Maybe there are no communications at all, despite Bratton and Disney confirming there were to the media. I don't really see what anybody has to gain by doing this.

• Maybe the department has responsive records and chose not to give them to me. The agency didn't cite an exemption or provide any indication that this was the case, but we're talking about an agency that made up its own bogus "classification" scheme. It may be in violation of FOIL, but it doesn't seem beyond the pale for the NYPD.

• Finally, it's possible NYPD conducted these communications in a way that did not generate any records. This is just speculation, but if this is the case, it's hard to imagine this happening by accident. The NYPD asking Disney and Marvel to bring lawsuits, and there's no paper trail at all?

Unfortunately, the nature of frustrated transparency efforts is that we don't really have the answers. If the NYPD had promptly responded that it had no such records or would be withholding them according to a particular exemption, or even if it had given me a limited set, we could close this case. As it stands, we don't really know anything more about the NYPD's bizarre efforts to jam its "quality-of-life" issues into an ill-fitting copyright enforcement box.

Filed Under: copyright, costumes, foia, nypd, transparency

The Need For Deep Pockets And Lawyers Means The FOIA Process Benefits Corporations The Most

from the and-the-general-public-gains-nothing dept

FOIA reform is (yet) again working its way through the bowels of Congress. Unfortunatley, the FOIA process is resistant to fixing because there's very little in it for the government. Agencies are supposed to err on the side of openness and transparency, but a stack of broadly-written exemptions makes it's far too easy for them to operate in opacity.

One of the major problems with the FOIA process is that it takes a lawyer on retainer and lots of money to get the most out of it. For most FOIA filers, an agency's refusal to respond in a timely fashion or release requested information is the end of the line. Unless they're working in conjunction with a major journalistic enterprise, the FOIA ball is completely in the government's court.

Over the past few decades, this has led to only certain components of the American public being able to make the most of the FOIA process. And these entities aren't interested in dragging the government's secrets out into the open. They're more interested in acquiring information on other private entities via the government's transparency tool.

Prawfsblog, by way of Scott Greenfield, noticed something about some FOIA stats. The "people" making the most requests aren't "people" in the generally accepted use of the word.

Margaret Kwoka of Prawfsblog notes the law isn't really serving the purpose it was intended to.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

This is something that has been noted here before. FOIA requests roll in from journalists when hints are dropped (usually by anonymous government officials) about something not previously exposed. In response, government agencies quite often stonewall requesters until Issue X fades from the public eye. And there's not much any requester can do to expedite the process other than file a lawsuit -- which isn't an option for many people. Scott Greenfield points out what happens to the average (read: non-corporate) requester.

Make a FOIA request, wait your ten days, and get . . . nothing. Complain and get . . . nothing. Maybe you get a response years later. And when you do, maybe it’s responsive, or maybe it’s ten pages, fully redacted, out of 473, the rest of which is refused. Or maybe you get . . . nothing.

Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request. Maybe you get notification that they would be thrilled to respond, if only you would send them $71,493.27 to cover the cost of your ten pages. And they will still get back to you when they’re good and ready, if at all.

What you gonna do about it?

The government knows this. And it likes it this way. FOIA reform is a perennial effort, but the law remains greatly unchanged. No one wants to shift too much power to the people and make the letter of the law approach the spirit of the law. But, as is the case with much of the government, it finds itself relatively powerless in the face of deep-pocketed corporate interests.

Large corporations have the staffing, money and lawyers to make the law work the way it's supposed to work. And the government is more than happy to oblige them. First off, these entities have the power to compel the government to produce requested documents. Secondly, the information being turned over to requesting corporations has very little to do with the government's secrets. As long as well-lawyered corporations are asking for little more than info on their competitors, the government is all too happy to reply to their requests.

There’s gold in government documents, and these are the documents that the government doesn’t care enough to keep private, mostly because what they reveal isn’t any of the government’s deep, dark secrets, but ours.

What's more, the information requested by these corporations goes into their private stock. It's very rarely offered up for public consumption. The government doesn't mind making its secrets someone else's secrets. But it certainly doesn't care for its secrets being made public knowledge.

The FOIA process is broken -- hopefully not irrevocably. There are moments where it works brilliantly, but mostly due to operator error on the respondent side. Things slip through that were obviously meant to be kept buried. Inconsistent redactions allow one requester to access what another couldn't, etc. But, on the whole, the "presumption of openness" urged by the administration is never going to take hold without serious reform of the existing law.

As Greenfield notes, the presumption of opacity is still in full effect, even when that opacity is patently ridiculous.

As of this date, the FOIA website still lists Eric Holder as Attorney General, even though he has been replaced by Loretta Lynch. When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.

Filed Under: deep pockets, foia, government, lawsuits, transparency

First Report From Inside Germany's New TAFTA/TTIP Reading Room Reveals Text's Dirty Secret

from the 24-seconds-a-page dept

Last week we wrote about the only place that German politicians are currently allowed to view the latest texts of TAFTA/TTIP: a tiny room, guarded at all times, and involving all kinds of humiliating restrictions for visitors. Katja Kipping was one of the first to enter, and she has written up her experiences for lesser mortals like you and me, who are not permitted to besmirch this sacred place with our unworthy presence. Even though she is -- of course -- forbidden from speaking about what she read there, a translation of her account, made by War on Want, nonetheless contains some interesting new details:

Once I'd registered, I was sent the instructions on how to use the room. The first thing that I noticed was that the terms and conditions had already been the subject of negotiations between the European Commission and the USA. Get your head round that: TTIP isn't even signed yet, and already individual countries have lost the right to decide who gets to read the texts, and on what terms.

Here's how the actual visit went:

A guard took me in through security and asked me to lock away my jacket and my bag. He checked that I wasn't taking any camera or mobile phone into the reading room, and then knocked on a door. The heightened level of secrecy made me all the more excited as to what I was going to find, but the room itself was nothing special. There were eight computer work stations, and I was only allowed to sit at the one designated for me. A friendly woman sat in the room. She got me to sign the visitor rules -- if you don't sign, you don’t get in, so I signed. There was a thermos of coffee and a plate of biscuits in the corner. Yet no amount of caffeine or blood sugar would have made it possible to get through the 300 or so pages of text in the two hours I had available to me.

Even though this reading room for German politicians has finally been opened -- two and a half years after the TAFTA/TTIP negotiations began -- numerous obstacles are placed in their way to make that opportunity as inconvenient as possible. First, the texts are only available in English -- imagine if US politicians were only allowed to read the French version of the negotiating texts. Moreover, the German visitors to the room are completely on their own: they cannot take even security-cleared specialists with them in order to decode the highly-abstruse wording of the documents. Finally, as Kipping notes above, she had just two hours to get through 300 pages -- roughly 24 seconds per page.

Even racing through the pages made available to her, Kipping says that she was unable to find anything that allayed her concerns about the proposed agreement. And despite the blanket prohibition on giving things away, she does reveal one dirty secret about the TAFTA/TTIP texts:

the documents are simply crawling with typos. The word 'and' is regularly written 'andd' and 'the' often appears as 'teh'. Either the negotiators are really shoddy workers or this is one of those famous security measures we've heard about.

She is doubtless right that these errors are fairly unsubtle attempts to create unique copies so that any leaks can be traced back to their source, since visitors to the reading room are directed to a particular computer when reading the text. And she is also correct in her conclusion:

Anyone who was going into these negotiations to enhance environmental protection, consumer protection and labour standards would have nothing to fear from transparency. Anyone who's engaged in selling out democracy, on the other hand, is obviously going to want to avoid public scrutiny. If [Germany's Minister for Economic Affairs] Sigmar Gabriel and the negotiators are really so convinced of the benefits of TTIP, why don't they just make the text available to everyone online?

It will be interesting to see what other snippets of information escape from the little room as the negotiations proceed, and as more German politicians visit it -- and whether they, too, still encounter texts that are crawling with highly-suspicious typos.

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Filed Under: eu, eu commission, katja kipping, secrecy, tafta, transparency, ttip, ustr