The Government's Antipathy Towards Transparency Has Made FOIA Lawsuits The Default Process

from the gov't-resorting-more-and-more-to-'make-me'-response dept

This is default mode for the Freedom of Information Act.

In a federal FOIA complaint, the ACLU and University of Arizona Professor Derek Bambauer and Associate Professor Jane Yakowitz Bambauer claim that the Department of Homeland Security has failed to respond to requests made in January and February for records that may "shed light on Border Patrol's extensive but largely opaque interior enforcement operations."

The professors seek "records related to U.S. Border Patrol's interior enforcement operations in Tucson and Yuma Sectors, including relevant agency policies, stop data, and complaint records."

The CBP (Border Patrol) operates far inland these days with the blessing of the DHS. To live in states bordering Mexico is to have your freedom to travel within the country needlessly interrupted by uniformed officers inquiring about your country of origin.

The CBP's surveillance technology has also wandered much further inland, far past the so-called "Constitution-Free Zone" that extends 100 miles in from the country's borders. Its drones, which are specifically to be used for border surveillance, have been loaned out to an assortment of federal agencies and local law enforcement.

The CBP has also become a deadlier force, responsible for 27 fatalities in the last three years. This number has increased dramatically, in part because CBP agents seemed to be looking for reasons to open fire -- like standing directly in the path of escaping vehicles.

But this isn't so much about the CBP as it is about the government's betrayal of the ideals behind the Freedom of Information Act.

"We shouldn't have to go as far as filing a lawsuit to get these records," Professor Bambauer said in a statement. "This is public information about a matter of pressing public concern. We cannot allow DHS and Border Patrol to continue operating in our communities without being subject to public scrutiny."

No, citizens shouldn't have to file lawsuits just to get the government to turn over responsive records. And, yet, this has become the expected route to freeing information. Nearly every document handed out by the Office of the Director of National Intelligence has been prompted by a lawsuit. The CBP drone documents mentioned above? Those are also tied to a FOIA lawsuit. Without the court's prompting, it's highly unlikely any of the documents the CBP "failed" to turn up during its first FOIA search would ever have been made public.

This is now the standard process for obtaining information from the government, whether at the federal level or below. There are many agencies that handle requests with few problems. But the agencies leaning towards the law enforcement/counterterrorism end of the spectrum are far from compliant. They resist, stall or simply ignore requests, pushing inquiring entities towards the courtroom.

This is completely wrong. A FOIA lawsuit is a remedy. Now, it's just standard practice. And this goes far past simply unacceptable into sickening territory.

Government agencies are supposed to be accountable to the public that pays for everything they do. The FOIA law is simply a tool of accountability that can be wielded by any citizen. But these agencies have perverted the FOIA system so thoroughly that what was supposed to be a last resort (a lawsuit) is now just another step in the FOIA process.

The DOJ likely has no problem with the DHS, CBP and others blowing off FOIA requests until the judicial system orders them to turn over the requested info. After all, in its ridiculous argument for warrantless cellphone searches, it stated that if people felt the police shouldn't have had access to their cellphone contents, they could always argue for suppression in court. This is the same mentality. Instead of respecting the limitations set by the Fourth Amendment, the DOJ suggests people should use a remedy (suppression) to hold cops accountable rather than expecting the police to police themselves and avoid violating citizens' privacy and civil liberties.

These agencies know that not everyone has the time or money to battle for the release of documents, so their exposure is limited should they choose not to comply. It's extremely hard for a nation's citizens to hold its government accountable if the government is going to use the citizens' own money against them.

ACLU, EPIC and the EFF have gone to court time and time again with no greater goal than getting government agencies to comply with a federal law. This ongoing subversion of the FOIA is completely unacceptable. This government is giving the public the finger, letting it know that it will only be accountable when forced to.

Filed Under: foia, lawsuits, transparency

Court Says DOJ Must Release Memo That Justifies Drone Killing Of US Citizen

from the that's-fairly-big dept

As we've discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release "key portions" of the DOJ's classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What's interesting is that the panel came to this conclusion based on the administration's public discussion on drones:

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”

The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret -- which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority.

As we've seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed "legal" with little to no oversight or review -- and no public discourse whatsoever.

Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it's not like the justification is going to be revealed any time soon.

Filed Under: anwar al awlaki, doj, drones, extrajudicial killing, foia, legal rationale

FOIA Exemption B(5) Means Never Having To Let A Redaction Opportunity Slip By

from the government-as-parent:-because-I-said-so dept

We've seen our share of redacted pages here at Techdirt, covering everything from NSA rules violations to GPS tracking to transcripts of court proceedings. Redaction is a way of life for the government, making a mockery of both the Freedom of Information Act AND this administration's claim that the White House is the most transparent place on earth.

This last claim in particular is ridiculous. The Unredacted blog (run by members of George Washington University's research library) has published the following chart, which shows exactly how much sunlight isn't making its way to requested government documents thanks to its favorite FOIA exemption, b(5).

This exemption theoretically covers only the following:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

In reality, it covers all of the following, according to Unredacted's research.

The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request.

The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.”

Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website.

Also included? Henry Kissinger's notes on telephone conversations, which were withheld for seven years under this exemption. DOJ legal counsel opinions, which by law must be released if the stated suggestions have been officially adopted. The State Dept. even argued that this exemption applied to Presidential Policy Directive addressing the Department's need to be more transparent about its aid plans.

This is the next FOIA battleground, according to Unredacted. The expansive reading of this exemption has lead to the government adopting this as the go-to redaction, applied haphazardly to withhold information from the public. The b is for "broad," or as Redacted puts it, "withhold it because you want to."

The blog points to one of the most ridiculous redactions in a sea of misuse -- the withholding of a State Department employee's hand-scrawled "commentary" on a proposed bill to designate Pakistan as a state sponsor of terrorism.

Sure enough, b(5) was cited when redacting the opinion ("What a bunch of crap!"), meaning that this penned commentary somehow was an inter/intra-agency "memorandum or letter" not meant for the public's eye. The fact that it was neither and was written on a copy of a publicly available piece of legislation didn't stop the agency from redacting it. Two years later, it was finally forced by the court to uncover the rogue commentary.

"Because you feel like it" sums it up completely. Someone hoped to head off a microscopic bit of embarrassment by abusing the FOIA exemptions and somehow we're expected to believe other b(5) redactions are done with a sense of purpose and restraint.

Filed Under: foia, redactions

ICE Rejects My Request To Waive FOIA Fees 'Because .' Yes, 'Because .'

from the why?-because. dept

A few weeks ago, I wrote about the troubling reports that Homeland Security's ICE division had teamed up with domain registrar/hosting company GoDaddy to help censor a Mexican political protest site. GoDaddy had suspended the domain, and when the site's administrators asked why, they were sent information saying that it was from a "Special Agent Homeland Security Investigations." Homeland Security Investigations is part of the new branding for ICE, but it's still the same old ICE. The contact email they were told to reach out to was an @ice.dhs.gov email address.

Given all of this, I filed a Freedom of Information Act request via MuckRock, a service I've used many times in the past to file FOIA requests, without issue. A standard part of doing so, is to ask for a fee waiver. Under FOIA, government agencies can charge for the requested work, but they're supposed to waive the fees if the request is for the public interest or reporting. Basically, the only times they're not supposed to waive the fees is when it's for some sort of (non-reporting) commercial purpose (e.g., a company looking to sell a database that it collects via FOIA requests).

So I was a bit surprised to get back a notice saying that ICE had rejected my fee waiver request. There are very limited reasons for why a government agency can reject such a request, and my request should absolutely have received the waiver. So, I read the waiver rejection letter to find out why, and was... well... a bit surprised to see this: Specifically, after listing out the six factors, none of which should exclude me from getting the waiver, it says:

Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .

"Because ." Well, that is kind of useless, no? Either way, the rejection is totally bogus, but to claim that the reason is... " ." is sort of the icing on the cake. They also claim that my "fee waiver request has failed to satisfy each of the required factors."

Except that's not true. I actually satisfy all of the factors. Let's take a look.

Whether the subject of the requested records concerns "the operations or activities of the government."

Why, yes it does. I'm trying to find out why the US government requested GoDaddy censor a political protest site.

Whether the disclosure is "likely to contribute" to an understanding of government operations or activities.

Again, yes, of course it will, because I'll be reporting on the results, contributing to the understanding of why ICE felt the need to try to censor political speech in Mexico.

Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understand of the requestor or a narrow segment of interested persons

Again, since the request is for reporting purposes, and I'll be reporting on the results, this should once again be in favor of the waiver.

Whether the contribution to public understanding of government operations or activities will be "significant."

I would think it would be. After all, we're talking about a government agency censoring a foreign website for no clear reason. That seems rather significant.

Whether the requestor has a commercial interest that would be furthered by the requested disclosure

Nope. And, honestly, this is the main one that they normally use to reject fee waivers. It clearly does not apply here.

Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.

Again, I have no commercial interest here, but a journalistic one. And, for those who claim that there's a "commercial interest" as a news site, that is specifically exempted from the FOIA definitions of commercial interest. The DHS's own rules note that, when it comes to journalists: "a request for records supporting the news-dissemination function of the requestor shall not be considered to be used for commercial use." And, again, I've done a bunch of FOIA requests and never had a single fee waiver rejected before.

In other words, none of the conditions set forth as reasons why ICE can reject my fee waiver request have been met, and yet ICE still rejected the request -- and rather than explain why (perhaps because they can't), they said "because ." Yay, government.

I'll be appealing this decision shortly, but it hardly inspires much confidence in the FOIA department at ICE to actually be of any help at all in this matter.

Filed Under: dhs, fee waiver, foia, homeland security investigations, ice, rejections

Utah State Records Committee Orders City Of Bluffdale To Reveal Data On NSA's Water Usage

from the water,-water-everywhere,-and-nary-a-drop-publicly-accounted-for dept

The NSA's new home in Utah is increasingly looking like a bad idea. While local politicians were likely delighted to have a federal money funnel set up shop in state, that initial euphoria has faded in the wake of the Snowden leaks.

Multiple legislative attempts have been mounted by various states to basically nullify the NSA's programs, either directly or indirectly. In Utah, the leverage point has been the public utilities. There is no doubt that the NSA's new data center consumes massive amounts of electricity. But it also goes through water like… water. Not much is known about how much the data center uses (estimates place it at about 1.2 million gallons a day), but one fact that has emerged so far is that the NSA is paying far less ($2.05 vs. $3.35) per thousand gallons than other high-volume businesses.

The Tenth Amendment Center has been pushing for the adoption of legislation aimed at cutting off public support (meaning "public utilities") for the NSA's domestic surveillance programs. While this legislative battle has been moving forward, attempts to gain more insight into the NSA's utility usage have been stonewalled by both the City of Bluffdale and the NSA itself.

Fortunately, the state has stepped up and ordered Bluffdale to release the NSA's water usage records.

This month, the Utah State Records Committee ruled that the City of Bluffdale must release water records pertaining to the massive NSA data center located there.

Salt Lake City Tribune reporter Nate Carlisle pursued the information, and his success shows how a series of small, seemingly insignificant actions can lead to a major victory.

The committee voted unanimously to require the city to make details of the NSA’s water use public last week.

The City of Bluffdale was a major combatant, insisting on collecting a $45/hour fee for compiling responsive documents. All told, the total stood at $767.45 when the reporter brought this to the attention of the State Records Committee.

The agency itself was no better. It refused to release info on its water usage by relying on the same excuse it uses for everything: terrorism.

By computing the water usage rate, one could ultimately determine the computing power and capabilities of the Utah Data Center. Armed with this information, one could then deduce how much intelligence NSA is collecting and maintaining, and this clearly relates to one of NSA's core missions, which is the collection of foreign intelligence.

Robert McMillan at Wired calls bullshit on this argument.

The reality is that Sherman's argument requires a pretty big leap of logic. Data center engineers can get rough ideas of compute power based on how much power a building consumes, but figuring this out on water is another matter. Some data centers, like Facebook's facility in Prineville, Oregon, use custom-made swamp coolers to mist the air and cool down servers. Others push hot air into evaporative cooling towers, which are kept cold by running water.

"There are many different ways to cool a data center," says Jonathan Koomey, a research fellow at the Steyer-Taylor Center for Energy Policy and Finance at Stanford University."Without knowing more about the actual facility then I don't think anyone's going to give you solid [computing capability] numbers."

Without access to all of this water, the NSA's shiny new home can't function. That it consumes over a million gallons a day (at least) should be of concern to Utah's residents, especially considering the ongoing water management issues the state is facing. Early in 2013, water experts met to discuss the problems inherent in the nation's second-driest state -- one which also sports the nation's highest birth rate.

Among the many suggestions were removing the tax subsidies from water that kept prices artificially low and starting to meter secondary usage. Nowhere in the discussion was a suggestion to funnel 400+ million gallons a year into a surveillance agency's data center.

This cut rate on top of an already artificially low water price would explain the attractiveness of the locale to the NSA, but in the end, it's the rest of Utah's citizens who will be screwed. When its water usage details are finally revealed, one can safely expect there to be more public support for the Tenth Amendment Center's attempt to literally drain the agency of resources.

Filed Under: bluffdale, foia, nsa, surveillance, utah, water

Judge Tells Private Prison Corporation It's A Government Agency As Far As Public Information Requests Are Concerned

from the another-obvious-conclusion-that-took-a-lawsuit-to-reach dept

Prison Legal News has been battling with the largest private prison corporation in the US, Corrections Corporation of America, over the control of records requested through a Texas Public Information Act request. The organization took CCA to court last May in hopes of kicking loose records pertaining to a now-closed prison.

Fortunately, almost a year later, a Texas judge has ordered the corporation to release the pertinent records.

A state judge ruled Wednesday that the nation's largest private prison company, the Corrections Corporation of America, is a "governmental body" for purposes of the Texas Public Information Act, "and subject to [the] Act's obligations to disclose public information."

The corporation had argued that it was exempt from public information requests because it was not a government agency. As Prison Legal News noted in its May 2013 filing for summary judgement, this distinction was meaningless on several levels. It pointed to the Fifth Circuit Court's "Kneeland test," a list of three specifications that, if met, would redefine a private corporation as a public entity due to the extent of its interaction and reliance on government bodies.

An entity that receives public funds is treated as a governmental body under the PIA:

1. unless the private entity’s relationship with the government imposes a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser;

2. if the private entity’s relationship with the government indicates a common purpose or objective or creates an agency-type relationship between the two; or

3. if the private entity’s relationship with the government requires the private entity to provide services traditionally provided by governmental bodies.

As the filing noted, CCA met all three requirements. The corporation receives public funds to run its prisons, receiving a certain amount of money per prisoner housed. It is also instructed to maintain critical systems, etc. at all times, despite a fluctuating inmate count, for which it also receives public funding.

Quite obviously, Texas and CCA are also reliant on each other ("agency-type relationship") in other ways. The state prosecutes criminals and needs somewhere to house them, which CCA provides. This also satisfies the third stipulation, that being that CCA provides a service normally provided by the government.

In a one-page ruling, the judge granted summary judgement, ordering the company to hand over records to Prison Legal News. This is one small victory against the increasingly privately-owned prison system in the US. By turning over imprisonment to private corporations, the US government has both perverted incentives (by making imprisonment a profitable enterprise) and allowed public records to be hidden away behind FOI exemptions meant to shield private companies' trade secrets from their competitors.

Filed Under: foia, prisons, private prisons, public information act, texas
Companies: corrections corporation of america

Even With Its 'Public Facing' Tumblr Blog, The Intelligence Community Is Still Avoiding The Surveillance Discussion

from the IC-begrudges-the-record dept

We've discussed this several times before, almost always as a preface to any document release by the Office of the Director of National Intelligence. NSA-related documents are now being declassified and handed over to public. James Clapper, the Director of National Intelligence, delivers each document dump with a canned statement that almost always includes this sentence:

These orders are available at the website of the Office of the Director of National Intelligence (http://www.dni.gov), and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the Government (IContheRecord.tumblr.com).

But the ODNI's website isn't necessarily as dedicated to this cause as Clapper's introductory statement makes it appear. As we've pointed out before, nearly every document released has been the result of court orders in FOIA lawsuits pursued by the ACLU, EFF and EPIC. Others have been compelled by executive orders (Obama's surveillance reforms) or are nothing more than official statements and press releases. There's no transparency here, no intrinsic effort to "foster greater public visibility." The agency has been forced out of the shadows and its awkward embrace of openness is nowhere more apparent than at its Tumblr blog.

The fact that a national security agency is operating a public blog that's more than just press releases and help wanted ads is very unusual. But underneath the talk of connecting with the public, there's very little going on here that isn't self-serving or fulfillment of legal obligations.

The Guardian notes, however, that a recent post finally did what no other post to date had done: acknowledge that the documents in question were forced out of the NSA's hands.

Amie Stepanovich was doubly rewarded when she won her transparency lawsuit against the US government. Not only did Stepanovich, formerly a lawyer for the Electronic Privacy Information Center, receive some of the surveillance documents she sued to obtain, but the office of the director of national intelligence credited her effort on its Tumblr.

Here's the ODNI's official release statement:

On Friday, the Attorney General through the Department of Justice, declassified and released 24 documents that were responsive to a portion of a Freedom of Information Act request by the Electronic Privacy Information Center. These one-page documents, titled “The Attorney General’s Report on the Use of Pen Registers and Trap and Trace Devices under the Foreign Intelligence Surveillance Act,” are reports to the Congressional intelligence and judiciary committees that identify how many applications the U.S. Government filed with the Foreign Intelligence Surveillance Court (FISC) seeking authorization to use pen registers and/or trap and trace devices, and how many the FISC authorized, during specific time periods. The documents cover the time period from 2001 through 2012.

Will this sort of acknowledgement accompany future releases? It's hard to say. While the short intro points out that the documents' release was compelled, there's nothing that indicates this sudden burst of honesty was. Did someone finally explain to Clapper's office that "fostering public visibility" means identifying the impetus behind the document releases? Ultimately, as long as the documents are freed, those compelling the releases aren't too concerned about the ODNI's opaque (and lightly self-aggrandizing) statements.

“As far as we’re concerned, the government can explain the disclosures however they’d like to. The important fact is that most of this information should never have been secret in the first place. We’ll continue to press the government to disclose more,” said ACLU attorney Alexander Abdo.

“EFF’s number one priority is making sure this information is provided to the public, whether or not the government wants to give us credit for it,” said EFF lawyer Mark Rumold.

Hopefully, this is the process going forward. The NSA isn't really making itself a part of the surveillance debate. It's only fulfilling obligations. The public should be aware of how little it's actually doing to increase visibility. Just using the blog-platform-du-jour isn't enough. The fact is that the US government's legal reps did all they could to block the release of these documents, which means the administration itself is just as complicit in the agency's effort to avoid the debate.

Filed Under: foia, icontherecord, intelligence community, james clapper, odni, transparency, tumblr

Judge Tells FBI To Explain Its Overly-Broad Use Of FOIA Exceptions

from the Occupy-J.E.-Hoover dept

As we recently covered, a judge had ordered the CIA to explain its ridiculous FOIA response tactics. The CIA had, with a straight face, first claimed it could ONLY produce hard copies of digital files from an internal security journal. Then, it said the only way it could create digital files was by printing out the files and re-scanning them. The judge noted in her order that Congress recognized government agencies would be reluctant to hand over documents to the public, which is why it directed agencies to make every reasonable effort to accommodate requests. This, of course, was not what the legislators had in mind when they crafted the Freedom of Information Act.

Now, it's the FBI being asked by a judge to explain its overuse of FOIA exemptions to withhold documents. This time, it's the (in)famous Ryan Shapiro suing our government for access to information. Shapiro is well-known by the FBI, which has attempted to shut down the prolific requester by simply refusing his FOIA requests. It justifies this violation of the FOIA by claiming (somewhat accurately) that Shapiro is utilizing a "mosaic" method to gain access to information the FBI clearly wants to keep hidden. The theory is that with enough overlapping requests, responses will turn up either different documents or inconsistent redactions, thus revealing potentially sensitive information.

Shapiro currently has six open FOIA-related lawsuits (five vs. the DOJ and one vs. the CIA). This one, originally filed in April of last year, centers on Occupy Houston-related FBI documents.

Specifically Shapiro asked for FBI records about "a potential plan to gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles..."

Shapiro said he wanted the records for his doctorate work, and that he intended to release urgent info about Occupy Houston to the public.

The FBI found 17 pages of pertinent records, gave Shapiro five of them, with some information redacted, and withheld 12.

The FBI has filed to dismiss, stating that it did a "thorough" search for responsive documents and released all non-exempt papers. But the judge didn't buy every argument the FBI made, questioning its use of an exemption that excludes "records or information compiled for law enforcement purposes." ("Law enforcement" being #2 on the FBI's To Do List [following "national security"] would seemingly make every document the FBI "compiles" exempt if given a broad enough reading.)

"(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.

Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."

Now, the FBI will need to prove to the judge that its exemption claim isn't overly broad, possibly in an in-camera session considering the claimed sensitivity of the withheld documents. But as This Anonymous Coward pointed out on Twitter, a better question might be why the FBI was so interested in protecting the banks from Occupy protestors, rather than investigating the assassination threats against Occupy leaders. Chances are, that question will go unanswered by the FBI, whether or not these documents are finally freed.

Filed Under: exemptions, fbi, foia, mosaic, redactions, ryan shapiro

Court Says FBI's Secret GPS Tracking Memos Can Stay Secret

from the government-states-black-toner-shortage-as-primary-motivator dept

Back in January 2013, the ACLU managed to pry loose two secret memos on the FBI's GPS tracking from the DOJ with a FOIA request. The only problem was that the request didn't actually free much information. The responsive documents consisted of a few scattered paragraphs … and 111 pages of black ink.

The ACLU objected to this mockery of the words "freedom" and "information," noting that secret interpretations of existing laws is exactly the sort of thing the Freedom of Information Act was designed to discourage, not protect. So, the ACLU sued the government in hopes of being given something a little less redacted.

That legal battle is now over. And no additional information will be freed.

Yesterday, a federal district court ruled that the Justice Department does not need to disclose two secret memos providing guidance to federal prosecutors and investigators regarding the use of GPS devices and other location tracking technologies…

The Justice Department drafted the memos to address those open questions, but it claimed in court that it should not have to turn them over because they contain attorney work-product and sensitive law enforcement information. The district court disagreed in part, holding that government guidelines for the use of GPS tracking do not qualify as sensitive law enforcement information, because “Law enforcement’s use of GPS tracking is well known by the public.” But it concluded that the government may nevertheless keep the guidelines secret, on the ground that the results of DOJ’s reasoning “will be borne out in the courts.”

The documents apparently contain the DOJ's arguments for warrantless GPS tracking, but the American public won't be allowed to find out anything about the government's justification. Instead, the court has decided to take a hands-off approach and "allow" defendants to "discover" these arguments as they're presented in court. Or not, if the government decides its arguments are too super-sensitive to be released and pushes to present these justifications under seal.

As the ACLU notes, it's only because the FBI's general counsel spoke of these two documents during a panel discussion at the University of San Francisco that anyone even knows the secret memos exist and what they're comprised of. Until these arguments are tested in court, the government is free to determine how much privacy Americans are entitled to in regards to GPS location tracking. Fortunately, there are a few legislators exploring other options.

Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) have asked Attorney General Eric Holder to release the documents, reminding the attorney general that “there is no room in American democracy for secret interpretation of public law…" And if you want to skip right over interpretations of the law and get behind a strong Congressional fix, you can support legislation mandating a warrant for all location tracking here.

On a related note, the FBI has filed a motion for summary judgement in its legal battle over NGI (Next Generation Identification) documents requested by an EFF FOIA request. The agency is trying to keep more privacy-related information out of the public's hands, including more details on its facial recognition program and biometric database. The arguments deployed are largely familiar (release of more info would allow criminals/terrorists to circumvent the new technology), but the end result (if the motion is granted) will be the same -- more secrecy for the government and less privacy for millions of Americans.

Filed Under: doj, fbi, foia, gps, secrecy, tracking, transparency
Companies: aclu

CIA Tells FOIA Requester It Can Only Make PDFs By Printing Out Electronic Documents And Re-Scanning Them

from the no-tactic-is-too-stupid-when-it-comes-to-dodging-FOIAs dept

The Freedom of Information Act was supposed to make the government more transparent and responsive to its employers: the American public. The Act has indeed provided a level of transparency that wasn't present before its enactment, but the law is also loaded with a ton of exemptions that make it easy for government agencies to dodge requests.

The Obama administration itself -- the supposed "most transparent administration in history" -- is one of the worst offenders. As Mike covered earlier, administration-directed agencies have abused these exemptions hundreds of thousands of times in the last five years. Even when the agencies have been "responsive," they've still been mostly unresponsive. The FBI's documents on warrantless GPS tracking were handed to the ACLU with 111 pages redacted entirely.

Many other documents are now the subject of ongoing lawsuits against the government for its refusals and redactions. Nearly every document cut loose by the Office of the Director of National Intelligence has been the result of a lawsuit brought by the EFF against the government for violating the Freedom of Information Act.

Secrecy News brings us the story of yet another lawsuit being brought against the government for FOIA-related ridiculousness. Jeffrey Scudder, a 23-year veteran of the intelligence community, is seeking 419 articles from the CIA journal "Studies in Intelligence." He has specifically requested these be provided as "softcopy" (i.e., electronic files), which would only make sense, considering the amount of responsive documents. However, the agency has gone deliberately pants-on-head stupid to make this simple request an annoyance for everyone involved.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff "as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located."

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons.

Citing "security," the CIA decided it would only comply if it could fell a small forest. Obviously, this route is a complete inconvenience for everyone involved. I'm sure the CIA would have preferred Scudder simply drop his request after being confronted with the agency's insistence on performing this task in the least efficient way possible. (Government agencies often tend to less efficiency, especially when it's in service of sandbagging FOIA requesters, who are expected to pick up the tab for the agency's wasteful tactics.)

Scudder refused to take boxes of paper for an answer and requested again that the CIA keeps associated costs down by grabbing the electronic files and burning them to a CD-ROM or two. The CIA responded to Scudder's insistence by hitching up the belt on its head pants.

"The defendant [CIA] avers that if it were ordered to honor the plaintiff's [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media," Judge Howell summarized.

Scudder politely called the CIA's convoluted response process an "administrative gimmick" designed to frustrate the requester and impose "unreasonable financial burdens." Judge Howell sides with Scudder on this.

"Congress anticipated that recalcitrant agencies would resist being responsive to requesters' format choices," wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make "reasonable efforts" to accommodate requesters' preferences.

She called the CIA's process "Rube Goldbergian" and pointed out that, while the law requires responding agencies to make "reasonable efforts" to fulfill requests, that should not be taken to mean that agencies can simply employ convoluted processes in order to make responding suddenly "unreasonable."

Scudder has also pointed out (via Howell's opinion) that he has used the CIA's classified system in the past to create PDFs, something the agency claims is beyond its capabilities. Despite this clearly being an issue of government agency stonewalling, Judge Howell hasn't granted summary judgement to either side, citing both parties' allegations of "bad faith." However, she has granted Scudder's motion for discovery, which means the government will once again appear in court to defend its refusal to follow its own laws.

Filed Under: cia, foia, jeffrey scudder, pdfs, printing out, reasonable, secrecy