FOIA Request On Effectiveness Of License Plate Readers Greeted With A Blank Stare By Virginia Police Department

from the I'm-not-familiar-with-the-sort-of-thing-you're-asking-for dept

Law enforcement agencies are generally pretty happy with their automatic license plate readers. It allows them to harvest millions of plate/location records without having to exit their vehicles, much less slow them down. It also allows them to spring from their cruisers with guns out and force non-car thieves into submissive positions while they perform the sort of due diligence that should have been completed long before the cops/guns exited their respective holders.

What they don't seem to like is anyone asking questions about the massive databases they're compiling or whether they've bothered to institute any minimization/privacy policies. When questioned, they usually talk about what a great tool it is for crime-fighting, even if said tool contains millions of useless photos entirely unrelated to criminal activity. Some even claim that every single photo in the database is integral to ongoing investigations and therefore cannot be subjected to minimization procedures, much less the pesky FOIA requests of surveilled citizens.

And sometimes, these agencies are so sure they like the tech that they can't even be bothered to determine whether it's actually doing anything to assist in the business of law enforcement. Stephen Gutowski at the Capitol City Project recently asked the Fairfax County, VA police about the effectiveness of its license plate photo database and got this 'FILE NOT FOUND' statement in response.

This letter is in response to your FOIA request in which you requested the number of ALPR records Fairfax County currently has on file. This number is constantly fluctuating, but as of 05/20/2014 at 1003 hours there were 2,731,429 reads in the system.

You further requested any available metric the county uses to determine the system's effectiveness. It was found that the Fairfax County Police Department does not possess any such responsive materials based on the information you requested.

The assumption here is that the system works. The Fairfax County PD occasionally posts arrests linked to ALPR database hits and… well, beyond that, the PD draws a blank. Presumably a handful of arrests justifies a multi-million image-and-location photo database. But this lack of self-assessment shouldn't be acceptable, not for an agency that has abused its technology in the past.

It came to light late last year that the Fairfax PD trolled political rallies to grab more plate data, racking up nearly 70,000 photos in five days. This abuse prompted a local lawmaker to push legislation aimed at severely limiting, if not completely eradicating, ALPR readers in his district. Not a bad idea, as far it goes.

Virginia law enforcement agencies aren't going to be happy with this move and they'll be able to mobilize a pretty powerful opposition. But these are the same entities that tried to bury info on plate readers back in 2009, simply because they felt the public might try to get the system shut down if they knew what was going on. But the lack of controls or any gauge of the system's effectiveness shouldn't be allowed to escape unnoticed, because the failure to monitor error rates and hits can result in catastrophic consequences for citizens whose plates trigger false hits -- something this system does at twice the rate of recoveries.

The license plate readers demonstrated a high error rate. Four ALPR vehicles used in Fairfax County over the course of five nights in February 2009 scanned 69,281 vehicles. The camera database produced twelve bogus hits and recovered four stolen vehicles, for a recovery rate of 0.6 percent and an error rate of 1.7 percent.

The technology can be used responsibly, but law enforcement agencies with tough minimization policies are almost nonexistent. And as we've seen twice in the last month alone, officers relying on faulty data aren't making an effort to verify database hits before attempting to effect arrests. Someone's going to be hurt or killed because of bad data, and hardly anyone in law enforcement seems to be concerned. If they did, strict policies on verification and disposal of non-hit data would be the rule, rather than the exception.

Filed Under: alpr, foia, freedom of information, license plate readers, license plates, police, virginia

Court To Government On Attempt To Bury Drone Memo: You'd Have A Case If You'd Bother To Shut Your Mouth Once In Awhile

from the government-loosens-lips,-sinks-own-ships dept

We've discussed the contents of the DOJ's memo detailing its justifications for the extrajudicial killing of American citizens (being mainly that the Authorization for Use of Military Force, which was rushed into existence three days after the 9/11 attacks, says it can). Now, let's take a look at the ruling that finally pushed this long-withheld document into public view.

The court's decision recounts the long history of the embattled document, including the many attempts made by government agencies to bury the memo. But it appears that most of the reasons why the court decided to clear the (somewhat redacted) memo for release were provided by the government itself, which mooted many of its exemption claims with various statements made to the public.

In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."

What follows this paragraph is two pages of quotes by government officials, including Eric Holder, making public statements about how fully legal and justified the strike on al-Awlaki was. As the court notes, these assertions give a pretty good indication about the contents of the drone memo.

Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated.

The court also explains how the close relationship between a DOJ white paper on drone strikes and the still-unseen OLC-DOD memo further weakens its claimed FOIA exemptions.

Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC-DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret...

After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC-DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

From there, the court takes a swipe at the paranoiac assertions of the Office of Legal Counsel, assertions that seem to infer its clientele is largely comprised of idiots who fail to understand the public records process.

In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur…

Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.

The government also claimed certain other information needed to be withheld, presumably because of the standard terrorism fears. But once again, the information it claims can't safely be made public was made public by government officials time and time again.

One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen.

Again, this is followed by more than a full page of statements by government officials, including the President himself, talking up the great help the Yemeni government was during the hunt for al-Awlaki. The second concern, again undercut by government officials' statements, was the identity of the agency that worked with the Defense Department to eliminate the target.

The other fact within the legal reasoning portion of the OLC-DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency’s identity. The argument comes too late.

Undercutting the government's own arguments here are people like (then) CIA director Leon Panetta and Mike Rogers, head of the House Select Committee on Intelligence. James Clapper himself also confirmed this fact during a televised hearing.

As for the common "sources and methods" claims, the court doesn't think much of these either.

We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government...

With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.”

The government desperately wanted to keep this memo a secret, but couldn't help repeatedly discussing aspects of it publicly. If these officials believed its extrajudicial killings were on firm legal ground, then they could only be helped by releasing the rationale behind them. And if other officials were so concerned about "sources and methods," why couldn't they restrain themselves from congratulating the Yemeni government and bragging about the CIA's role in drone strikes? Maybe this is the transparency so often touted by the administration, albeit one comprised mostly of inadvertent revelations and self-serving statements.

Filed Under: classification, doj, drones, eric holder, foia, freedom of information, secrecy

Judge Tells ACLU It Can't Make The US Government Give Back The Stingray Records It Removed From A Florida Police Department

from the not-even-a-wrist-slap dept

The federal government doesn't want local law enforcement agents turning over cell tower spoofer documents. It has spent a great deal of time behind the scenes advising the agencies to withhold information from requesters, citing "security" and the fear of disclosing "methods" in defense of its actions.

In Sarasota, FL, it took a more overt route, sending US Marshals to seize responsive Stingray documents from the local police department. This time, it claimed it had "deputized" a department detective, making him part of a regional task force. As such, the records now "belonged" to the US Marshals Service and could not be turned over to the ACLU.

The ACLU responded to by filing an emergency injunction seeking to prevent US Marshals from confiscating any more SPD documents, as well as asking it to find that local law enforcement violated Freedom of Information law by handing over requested documents to the federal government.

The judge has now ruled on this motion, and almost everything about it is bad. In his decision, Judge Charles Williams found that his court had no jurisdiction over the federal agency and dismissed the case. But other concerns went unaddressed.

When Sarasota Circuit Judge Charles E. Williams issued his order dismissing the lawsuit, there was nothing about this act by the federal government to essentially abscond with documents to prevent them from potentially becoming public. In fact, the judge did not hold an appropriate hearing on the evidence, even though [Michael] Barfield [ACLU of Florida] had wanted one to resolve key issues.

The ACLU is also “mystified” because Williams included in his latest order a statement that suggests the ACLU did not “challenge as a matter of fact to the representation of the United States government as to the status of Detective Jackson.”

Williams did order the government to turn over Stingray-related applications and orders that have already been filed under seal, but did not offer to lift that seal, meaning the ACLU will be returning to court to attempt to unseal the documents. But this doesn't mean Sarasota's Stingray documents will make their way into the public domain anytime soon.

[A]ccording to Barfield, the federal government “may not comply with the order. They did not seem to think the judge could order them to do anything and even implied they could “remove the case to federal court.”

Once again, we have to ask what's in these documents. The federal government is obviously going above and beyond to ensure the information stays out of the public's hands. Maybe it's just the government's collective paranoia over "means and methods" of surveillance. Or maybe it's something more egregious, like the 200+ times Tallahassee (FL) police deployed Stingray devices without a warrant. Either way, it sends a strong signal to the constituents that the only real right they have is the right to be surveilled.

Filed Under: foia, freedom of information, mobile phone spoofing, sarasota, spoofing, stingray, us marshals
Companies: aclu, harris

NSA Can Neither Confirm Nor Deny It Uses The Phrases It Used On A Leaked Slide

from the NATSEC-shrugs dept

The NSA's ubiquitous Glomar response continues to appear on every FOIA request denial it issues. The entirety of the NSA's systems can neither be confirmed nor denied, no matter how much information has been leaked to the press over the past year.

Investigative reporter Jason Leopold recently filed a FOIA request asking the agency to turn over any documents related to the phrases displayed on the leaked slide pictured below.

Leopold asked the NSA about its variations on the phrase "collect it all" (a.k.a. former NSA head Keith Alexander's personal motto), including "sniff it all," "process it all," "exploit it all," "partner it all" and "know it all." As is its particular idiom, the NSA Glomared all over the response letter. (via Freedom of the Press Foundation's Trevor Timm)

Your request appears to be related to recently published information about alleged NSA activities. Therefore, to the extent that your request seeks any information about NSA intelligence programs, or in relation to any specific methods or means for conducting the programs, we cannot acknowledge the existence or nonexistence of such information.

We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter in accordance with Executive Order 13526, as set forth in Subparagraph of Section 1.4. Thus, your request is denied pursuant to the first exemption of the FOIA which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are, in fact properly classified pursuant to such Executive Order.

Quick question: if the material, in fact, does not exist, is it still "properly classified?"

In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. The third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption.

So, not only are the phrases apparently subject to a variety of FOIA exemptions, even a simple nod of recognition in the direction of the NSA's "collect it all" aspirations is strictly forbidden. It's enough to make you want to drag the NSA into the nearest interrogation room and yell at it while jabbing repeatedly at the slide above, "THIS! THIS! DOES THIS LOOK FAMILIAR?!??"

As mentioned earlier, this is standard operating procedure for the agency, which has greeted this new, forced era of openness with begrudging releases (compelled by court orders) of previously classified documents and an unwillingness to confirm or deny anything about its programs. People who have requested anything the NSA has gathered on them personally are familiar with this response. Even the FBI will cough up its own files if asked, but the NSA can't even let respondents know whether or not it's siphoned up any of their metadata, presumably because doing so allows the terrorists to win.

At the bottom of the response letter, the NSA includes its token spiel about the possible avenues of recourse requesters can avail themselves of should its "neither confirm nor deny" response fail to satisfy, but it's not like anyone believes anything short of a federal lawsuit will loosen the agency's grip. And even then, that's not a sure thing. The best case scenario is a long-delayed, heavily-redacted document that provides little to no insight into the NSA's activities.

Filed Under: collect it all, foia, glomar response, jason leopold, nsa, surveillance

Judge Orders DOJ To Hand Over FISA Court's Justification For Bulk Data Collection On Americans In FOIA Lawsuit

from the this-could-get-interesting dept

Late Friday, a judge in California ordered the DOJ to hand over key rulings from the FISA Court concerning the legality of the bulk records collection under Section 215 of the PATRIOT Act. As you probably know by now, Section 215 is the "business records" provision, that the government claims allows the NSA to collect phone and other records on all communications in the US (despite the fact that the law itself is limited to the FBI and is only supposed to be about records related to terrorism). The FISA Court, however, has broadly (mis)interpreted the law, but done so in secret, such that the NSA now believes it can get basically any phone record (and lots of other kinds of records as well). The EFF filed a lawsuit after its attempt to get access to the relevant FISA Court interpretations (five of 'em) was denied, and the judge is now ordering the DOJ to let them see the rulings in question, after a heavily redacted deposition wasn't satisfying enough. The ruling is worth reading. The judge basically says that the DOJ has very little credibility on these things, having withheld info it should have released in the past.

Here, the Court finds that an in camera inspection of the subject documents is warranted. The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information....

Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern.... In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.

Of course, there's no guarantee that the judge will release the actual rulings, but this is clearly a step in the right direction.

Filed Under: bulk records, doj, domestic surveillance, fisa court, fisc, foia, nsa, patriot act, section 215
Companies: eff

Wisconsin Court Broadens FOI Exception, Allowing Government Agencies To Deny Requests Based On Perceived Motive

from the as-if-government-agencies-need-any-more-excuses dept

An interesting -- and possibly harmful -- ruling on public records requests has just been issued by the Wisconsin Court of Appeals. Although the ruling has a very limited jurisdiction, it could be used to push for similar legal activity elsewhere. Journalism student David Schick (who was last seen drawing the ire of Georgia State Attorney General Sam Olens over the release of public documents) has the story.

In a ruling earlier this month, the Wisconsin Court of Appeals set a precedent of allowing state officials to consider the purpose of a citizens’ public records request before handing over documents…

According the the appeal, “[Korry] Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.

How did Korry Ardell get himself excluded from the "general class of persons?" By being generally abusive and violent, it would appear. The person whose records he was seeking had previously obtained a restraining order against Ardell -- something he had violated in the past, leading to a six-month visit to a local correctional facility.

The decision groups Ardell with others who are denied access to public records -- namely, prisoners. But Ardell's time had been served and he was no longer incarcerated when the request was made. Ardell's previous willingness to violate court orders does seem to give him a higher-than-normal chance for recidivism, something the court also took into account when rendering this decision.

Milwaukee city attorney Melanie Rutledge feels this is just a reaffirmation of current restrictions on FOI requests. Unfortunately, the court goes even further than simply aligning Ardell with those currently being incarcerated by suggesting that past criminal activities may be able to exclude persons from filing FOI requests, even if time has been served.

Ardell disagrees with this conclusion and argues that Levin v. Board of Regents of the University of Wisconsin System, 2003 WI App 181, 266 Wis. 2d 481, 668 N.W.2d 779, stands for the proposition that identity is never a proper consideration when determining whether information should be released under the Wisconsin open records law. Citing WIS. STAT. § 19.32(3), Ardell asserts that the only exception to this hard-and-fast rule is for committed and incarcerated persons.

Indeed, Levin stands for the general proposition “that the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records.” Id., 266 Wis. 2d 481, ¶14. However, as we set forth above, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry that we determine on a case-by-case basis…

Ardell’s violent history with the MBSD employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons. See WIS. STAT. § 19.32(3). Ardell has forfeited his right to disclosure of the MBSD employee’s employment records by demonstrating an intent to hurt the employee, and it would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment.

While the decision does appear to make sense in this situation, it opens up the possibility of future request denials based on the requester's personal background, or the responding agency's perception of the requester's motive. ("Mosaic theory," anyone?) The court states that this will be determined on a "case-by-case basis," but that's a potentially expensive remedy that not every requester will be able to avail themselves of. This has the potential to route more requests through the Wisconsin court system, aligning this state with the US government itself, which seems to prefer legal battles to transparency.

Filed Under: foia, freedom of information, korry ardell, motive, wisconsin

US Marshals Step In To Keep Florida Police Department's Stingray Documents Out Of The Hands Of The ACLU

from the big-brother-protected-little-brother dept

The incredible wall of secrecy erected by law enforcement agencies around their use of "stingray" devices (cell tower spoofers) continues. Harris, the manufacturer of most of these devices, gets the secrecy ball rolling with non-disclosure agreements, which law enforcement agencies have liberally interpreted as a right to refuse public records requests and, in one case, an excuse not to seek warrants before deploying the devices.

In a very surprising move, the US government has inserted itself between a Florida police department and the ACLU by seizing requested documents. The ACLU has been seeking information on the Sarasota Police Department's use of cell tower spoofers, only to find itself being further separated from the relevant documents every step of the way.

The reason the ACLU wanted to dig deeper into the Sarasota PD's files presented itself in the first response.

The Sarasota Police initially told us that they had responsive records, including applications filed by and orders issued to a local detective under the state“trap and trace” statute that he had relied on for authorization to conduct stingray surveillance. That raised the first red flag, since trap and trace orders are typically used to gather limited information about the phone numbers of incoming calls, not to track cell phones inside private spaces or conduct dragnet surveillance. And, such orders require a very low legal standard.

Trap and trace/pen register statutes are routinely being abused as a way to route around warrant requirements. The NSA's bulk record collection was partially "justified" by a very liberal reading of pen register statutes. What once was a warrantless, targeted, limited-time collection has now become a catch-all for stingray surveillance and NSA programs.

The Sarasota Police set up an appointment for the ACLU to view its stingray files (as is required under Florida law), but that meeting was cancelled shortly before it was supposed to take place.

[A]n assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.

This interdiction by the US government to lock up documents the ACLU is seeking is astounding enough, but what every other entity involved did is even more so.

Nathan Wessler at the ACLU points out that, US Marshals or no, the police department is required to hold onto any documents requested for at least 30 days. Instead, it allowed the US Marshals to move the records off-site to an undisclosed location. With those files out of reach for an undetermined amount of time, the ACLU approached the court which would have signed off on trap and trace orders requested by the Sarasota Police only to find out that no such records exist.

The court doesn’t even have docket entries indicating that applications were filed or orders issued. Apparently, the local detective came to court with a single paper copy of the application and proposed order, and then walked out with the same papers once signed by a judge.

Another breach of records requirements and, again, tied to the Sarasota PD's stringray usage.

The ACLU has now filed an emergency motion seeking to block the Sarasota PD from turning over any more files to the US Marshals Service. It also asks the court to find that the department violated state law by turning over the requested documents to the US government.

The obvious question here is why both of these agencies are so reluctant to turn over these documents. If they're willing to break state records laws (the local court being complicit in this activity), the information contained must be pretty damaging. What has been discovered already points to the department's deliberate avoidance of a paper trail, what with the single document requests and the misuse of the trap and trace statute to avoid filing warrant requests.

If you've got nothing to hide, then you have nothing to fear, as the saying goes. The government expects us to live by that adage as it deploys warrantless surveillance, but it seems unable to hold itself to the same standard.

Filed Under: federal government, florida, foia, public records, sarasota, sarasota police department, state secrets, sting ray, transparency, us marshals
Companies: aclu

County Government Pays Out $40k To Seattle Newspaper For Violating Public Records Laws

from the what-part-of-'public'-do-you-not-understand? dept

There seems to be nothing more feared by government agencies than transparency. They seem to like the concept, as incoming officials are always proclaiming the new regime to be the "most transparent yet." But when it comes to execution, they suddenly find a million reasons to withhold responsive documents. Poynter reports that King County, Washington will be paying a Seattle newspaper $40,000 for its violations of public records laws.

More than 1,900 pages of e-mails and documents help tell a story about what’s happened to people with mental health issues in King County in Washington, and what the county’s doing about it — not bad for a collection of documents the county couldn’t seem to find.

The Seattle Times has more details on the county's attempt to bury its involvement in allowing potentially dangerous people to wander the streets (literally, in some cases) by not performing timely mental health evaluations. Reporter Brian M. Rosenthal had discovered that the county's mental health facilities were allowing people deemed a threat to themselves or others to walk free simply because they were either unable or unwilling to perform evaluations within the state-mandated time limit: 12 hours for those brought in by third parties or 6 hours if brought in by a family member.

The law is potentially a good one, preventing anyone (like say, the police) from simply dumping someone into an extended stay at a mental health facility simply because they didn't want to deal with the person anymore. Clearing people not deemed harmful for release within a short period minimizes the chance of wrongful detention. Unfortunately, the King County mental health system is short on qualified examiners and long on potentially harmful people.

“There are people who are psychotic, in need of help, and they get off on a stupid technicality, which essentially means that this poor person walks out barefoot and is in the middle of the street,” said Arpan Waghray, mental-health director at Seattle’s Swedish Medical Center, adding that, “You’re just waiting for someone to fail.”

Waghray isn't offering conjecture here: this actually happened, and the following wasn't an isolated case.

At 10:40 p.m. the night [Gregory] Benson was released from Fairfax, his parents heard a single knock on the door, a long pause, then another knock.

Their son stood on the porch, disheveled and shivering in 30-degree darkness. He had walked from the Kirkland hospital to their Redmond home, some seven miles.

The parents were relieved, confused and angry.

“We had been waiting almost two years to get him into a facility so he could get help. We kind of thought, ‘This is our chance,’ ” Maria Benson said. “I couldn’t understand what happened.”

Hospital records show it clearly: Benson was admitted to Overlake at 7:47 p.m. on Jan. 28 but not formally ordered to be detained by an evaluator until 20 hours and 41 minutes later, far more than the 12-hour limit for patients brought in by police.

But when Rosenthal went looking for more information on how often this deadline was surpassed, he was stonewalled by the county. First off, everyone he spoke to on record denied there was a problem, or even being aware such a time limit existed. Those who actually worked with the patients told a different story. Not only that, but there was evidence the rule was only selectively enforced -- some were sent out into the night to wander seven miles home while others were involuntarily held for days or weeks before being evaluated.

Rosenthal then attempted to obtain public records from the county.

A few weeks later, he was told there were no responsive records. Maybe he’d asked for the wrong phrases, he thought, so he tried again, requesting all communications between the head of the involuntary committment system and the head of the prosecuting attorney’s office.

“And the response was, we have no responsive records.”

So, he submitted another request. This time, documents began to appear. At that point, his employer stepped in.

In March, the Times’ lawyer, Eric Stahl, sent a demand letter and “threatened to sue the agency unless it explained the failure, conducted a thorough search and paid for legal costs and penalties…"

This seemed to work. By the end of the next month, the Seattle Times had obtained over 1,900 documents, many of which showed the problem was far more pervasive than country officials admitted. According to Rosenthal, this situation -- the release of someone potentially dangerous -- was happening on nearly 200 times a year. What the documents didn't show was any attempt by the county to acknowledge the problem, much less discuss how to fix it.

Now, with everything forced out into the open, legislators are finally aware of the issue and working towards fixing the law and its unintended consequences. But to get anyone to move on the issue, the newspaper had to threaten a government agency with a lawsuit, something few journalistic entities are willing to do. Not only are there costs to consider, but there's also the chance access will be severely stunted or cut off.

That a newspaper has to threaten its own existence in order to obtain documents a government agency improperly withheld is more than disappointing. It's a travesty. Publicly-funded entities have the financial means to outlast many private entities. And even when they concede and cough up damage awards, the money comes out of the public's pockets. As has been noted here before, government entities are swiftly turning the former last resort -- a court battle -- into just another step in the public records process.

Filed Under: foia, journalism, king county, public records, seattle

If DHS Boss Has A Staffer Write Her Emails... Does It Count As Her Email Under A FOIA Request?

from the if-an-email-falls-in-a-forest... dept

In 2012, we pointed out how ridiculous it was that then Homeland Security boss Janet Napolitano, who self-described herself as a Luddite, admitted that she didn't use email at all. This seemed troubling, given that DHS was ostensibly in charge of cybersecurity, and you'd hope that the boss would understand the basics of email. Of course, she later admitted to the real reason why she didn't use email: it created a paper-trail that would make her too accountable.

In the wake of the recent (and absolutely ridiculous) story about DHS inspector general Charles Edwards and his litany of misdeeds, Shawn Musgrave, over at Muckrock, decided to file some FOIA requests for any emails between Edwards and Napolitano. In response, DHS gave a "no responsive records" answer, noting that (as many had reported), Napolitano didn't use email. However, as Musgrave points out, that's not actually true. There are multiple examples of emails "sent" by Napolitano that have been previously released -- it's just that it's clear they were actually sent via a DHS staffer, rather than Napolitano herself. This is known because of another FOIA request from Musgrave, concerning any emails about Napolitano's resignation from DHS, which turned up (ta da!) an email sent by a (redacted) staffer on behalf of Napolitano: And, it turns out that this is not the only example of an email "from" Napolitano. Others have been discovered as well. So, that raises a serious question: when filing a FOIA request with DHS for Napolitano emails, shouldn't the emails that were sent using her "signature" count, even if sent by a staffer? As Musgrave notes:

There are two critical issues at play here. First is the guesswork this kind of email-by-proxy requires. Since emails like these didn't originate from an account assigned to Ms. Napolitano, watchdogs would have to skim through an indeterminate number of inboxes to ferret out misconduct by the Secretary.

But the spirit of the Freedom of Information Act and transparency also requires government officials to conduct a good faith search for documents responsive to a particular request. Since Napolitano's email aversion is common knowledge, particularly within DHS staff, a good faith search for emails "from" the Secretary requires more effort than reiterating that Napolitano declined to set up an email account during her tenure.

I have appealed the adequacy of DHS FOIA staff's search to that effect, and intend to continue pressing for release of documents that outline the extent of improper contact between Edwards and senior DHS officials.

Allowing this kind of thing to happen without pushback will present an easy blueprint for other government officials to avoid having their own emails easily FOIA'd, and that would be a big problem.

Filed Under: charles edwards, dhs, foia, homeland security, janet napolitano

Yet Again, A Freedom Of Information Act Request Results In LESS Information Being Freed

from the the-ODNI-will-be-around-shortly-to-redact-your-brain dept

Intelligence agencies seem to make some very un-intelligent decisions. Just last month, James Clapper told NSA employees they were no longer free to talk to the media in an extremely misguided attempt to head off future leaks.

Now, the Office of the Director of National Intelligence (ODNI) has seen fit to issue a redacted document, which in itself is not an unusual event. The problem here is that the unredacted version, originally published by the ODNI itself, has been in the public domain for years now.

Last month, ODNI issued a heavily redacted version of its Intelligence Community Directive 304 on “Human Intelligence.” The redacted document was produced in response to a Freedom of Information Act request from Robert Sesek, and posted on ScribD.

The new redactions come as a surprise because most of the censored text had already been published by ODNI itself in an earlier iteration of the same unclassified Directive from 2008. That document has since been removed from the ODNI website but it is preserved on the FAS website here.

So, why would it do this? Steven Aftergood at FAS Secrecy News suspects it might be the ODNI caving to the CIA's desire to keep everything a secret.

A comparison of the redacted and unredacted versions shows that ODNI is now seeking to withhold the fact that the Director of the Central Intelligence Agency functions as the National HUMINT Manager, among other things.

The CIA is only rivaled by the New York Police Department in terms of unresponsiveness to FOIA requests. That it would demand information related to its "super-secret" HUMINT (human intelligence) work be redacted isn't a surprise. That it would have no idea that this information is out in the open is a bit more surprising. But considering the government's extremely scattershot approach to overclassification, it is not entirely unexpected.

The entire document is marked as "Unclassified," which means there's very little reason to have any of this redacted, especially considering its previous official, unredacted release. The CIA isn't the only agency to have its information withheld, although that is probably more a product of what the redacted statement says, rather than an indication of the other agencies' desire for secrecy. The sections for both the FBI and the Defense Department have this sentence blacked out.

Collects, analyzes, produces, and disseminates foreign intelligence and counterintelligence information, including information obtained through clandestine means.

Apparently, the ODNI would prefer that no one know (enemies or citizens) these agencies secure information through "clandestine means," which is something everyone expects the CIA to be doing, if not the FBI.

The exemption stated [b(3)] is bit strange itself. It's supposedly limited to information that is subject to other statutes prohibiting the information's disclosure. Whatever that unnamed statute is, it must have gone into effect at some point between 2009 (the latest date on the unredacted version) and last month. Or, more likely, the exemption was just a handy excuse for blotting out the CIA's involvement in this particular form of intelligence gathering, one the ODNI won't have to explain until the end of the year when it (like all government agencies) must list the statutes used to justify b(3) redactions.

This is just another example of the greatest irony of the FOIA Act. The ODNI publishes a completely unredacted version on its own site but when a citizen asks for a copy, it redacts half the document. A Freedom of Information Act response creates an information deficit. That makes sense.

Filed Under: foia, james clapper, odni, redactions