DHS's ICE Group Accused Of Lying To Court About Expense Of Complying With FOI Request

from the but-of-course dept

Having just filed a Freedom of Information Act (FOIA) request concerning documents from Homeland Security's Immigration and Customs Enforcement (ICE) division, you can bet that it caught my attention that ICE is now being accused of lying to a court in claiming massive expenses to comply with a FOIA request for metadata on documents. After some back and forth, a court had ordered ICE to provide the specific data under the FOIA. ICE told the court that it was using a product from a company called Clearwell, but that it ran into technical and monetary hurdles, including having to spend $270,000 in upgrades, and also that it had to suspend security protocols to run the applications.

Apparently, Clearwell's competitors have been having a field day with this, using the filing by the government to bash Clearwell's product, so the company put out a blog post that claims ICE was basically lying to the court:

Neither OPLA nor any other part of ICE paid a dime for upgrades or a new server. In reality, its use of the product for this matter is covered under ICE’s existing license, and we provided an extra server and services for free to help them meet a tight deadline. . . .

In 16 working days, Clearwell was used to process a large volume of information and produce nearly 15,000 pages of Opt-Out Records . . . To help ICE meet its deadline, two Clearwell consultants worked onsite during this period – at absolutely no cost to ICE.

Apparently, it's not a good idea to use such things as an excuse when the company you're claiming was the problem has the ability to speak up itself. Of course, my request isn't for any metadata, so hopefully they can avoid having to spend $270,000 to find the few documents I requested.

Filed Under: foia, freedom of information, homeland security, ice

Techdirt Files FOIA Requests Concerning ICE 'Anti-Piracy' Videos

from the digging-in dept

Earlier today, I filed three Freedom of Information requests concerning the infamous "anti-piracy PSA" that Homeland Security's ICE division started placing on domains it seized. As we noted at the time, the videos were not new and not created by ICE. Instead, they were part of a campaign put together by New York City with the help of NBC Universal and the MPAA. The scripts of the videos were misleading, and I was troubled by the idea that the federal government would be playing corporately produced and funded propaganda, with the imprimatur of the Department of Homeland Security. I asked a series of friendly (non-aggressive) questions to Brian Hale, officially the spokesperson for ICE within the Department of Homeland Security about where they got the video and how much was paid for it. Hale and Homeland Security apparently decided not to comment at all, despite multiple email requests.

Separately, I made requests to the City of New York, to get their side of the story, but after being asked who I was reporting for, what "the nature" of my story was and who else I was talking to (all of which I answered honestly), I received no further response from the City of New York.

Thus, the three Freedom of Information requests -- filed using the new system from MuckRock.com, an open government tool that seeks to publish documents retrieved via such requests and which recently built a tool to make it easier to make such requests (which I'm now testing) -- are as follows:

• A FOIA request to the Department of Homeland Security, concerning the details of any licensing agreement with the City of New York or with NBC Universal directly.
• A request under NY State's Freedom of Information Law concerning details of any licensing agreement with Homeland Security concerning the same videos.
• Separately, a second request to NYC, concerning communications between the Mayor's Office and NBC Universal or the MPAA concerning the details behind those videos as well

The NY State law says that the city must respond to my request within five business days. DHS has a longer period of time to respond. Honestly, it's silly that I had to file such requests. Homeland Security could have easily cleared this up weeks ago by answering my simple questions concerning how the federal government licensed this video. The fact that it has refused to do so necessitated this formal approach, unfortunately.

Filed Under: dhs, foia, freedom of information, new york city
Companies: mpaa, nbc universal

Court Slams FBI For Saying It's Okay For The Federal Government To Lie To A Court

from the who-watches-the-watchers? dept

A few months back, we pointed out how the EFF had discovered that the FBI was extremely arbitrary in how it redacted information on Freedom of Information Act requests. There are specific rules about what should be redacted and what should be allowed. However, the EFF received the same documents from separate requests, and found totally different sections redacted. Not only did this suggest how arbitrary the process was, it also allowed them to see some of what was redacted in the "other" document -- and discover that it never should have been redacted.

Now, the EFF is pointing to a recent ruling that shows the FBI apparently feels it's free to go much further than just arbitrary redacting. In a different case, a district court has slammed the FBI for both lying about what records it actually had in response to an FOIA request by pretending certain records did not exist (even though they did) and then redacting portions of the document, claiming that they were outside the scope of the request... when they were not. The court is clearly not pleased. It also did not buy the government's silly claim that revealing that the FBI lied would be a threat to national security or that it's fine for the federal government to simply lie to a court, in the name of "national security."

After court ordered the FBI to submit full versions of the records in camera, along with a new declaration about the agency’s search, the FBI revealed for the first time that it had materially and fundamentally mislead the court in its earlier filings. The unaltered versions of the documents showed that the information the agency had withheld as “outside the scope” was actually well within the scope of the plaintiffs’ FOIA request. The government also admitted it had a large number of additional responsive documents that it hadn’t told the plaintiffs or the court about. Id. at 7-8.

If these revelations weren’t bad enough, the FBI also argued FOIA allows it to mislead the court where it believes revealing information would “compromise national security.” Id. at 9. The FBI also argued, that “its initial representations to the Court were not technically false” because although the information might have been “factually” responsive to the plaintiffs’ FOIA request, it was “legally nonresponsive.” Id. at 9, n. 4 (emphasis added).

The court noted, this “argument is indefensible,” id. at 9-10, and held, “the FOIA does not permit the government to withhold responsive information from the court.”

It really does seem like our federal government tends to believe that there should be no oversight of it at all. It's almost as if they feel that the basic principles of checks & balances within the government is a nuisance which it can ignore.

Filed Under: fbi, foia, freedom of information, lies

Uncensored Previously Censored FOIA Documents Reveal DHS Officials Found Politically Censoring FOIA Requests CRAZY

from the a-big-helping-of-meddling,-with-nuts-and-bananas dept

When President Obama first took office, one of his first acts was to tell government employees to be a lot more open in responding to Freedom of Information Act requests. The key paragraph:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

Unfortunately, as we've noted, the administration has quite frequently failed to live up to this promise. Last fall, we noted the particularly troubling news that Homeland Security had basically ignored the very basis of the above paragraph, and instead instituted special new processes to give FOIA requests extra political scrutiny to avoid embarrassing officials. In fact, they singled out certain groups, including the EFF, as requiring extra political scrutiny, rather than the basic scrutiny that is only supposed to make sure that classified/confidential info doesn't get out.

Amazingly, the FOIA requests that revealed this info... turn out to have been politically censored as well through that same process. The same documents have been released again -- this time without the extra redactions -- and we discover that a bunch of folks within Homeland Security were quite angry about the politicization of the FOIA process, with Chief Privacy Officer Mary Ellen Callahan, who was in charge of the FOIA process, complaining that this politicization was "CRAZY." Other emails show that DHS officials declared the politicized process to be: "meddling," "nuts" and "bananas!"

It's nice that all of this is coming out now, but it's immensely troubling that Homeland Security tried to politicize the FOIA process, and got away with it for a while as well. It's also unclear if similar politicization has taken place elsewhere in the administration. If the President really believed in that memo that he sent out when he first took office, why isn't he taking a stand against the fact that DHS specifically appeared to go against the very basis of that memo?

Filed Under: censorship, foia, politics

Supreme Court Says AT&T Has No Right To 'Personal Privacy'

from the don't-take-it-personally dept

Last year, we wrote about an important case in which AT&T bizarrely claimed that it had personal privacy rights over information the FCC collected in an investigation concerning AT&T overbilling the government. An organization had made a Freedom of Information Act (FOIA) request on the info, but AT&T protested that, as a corporation, it had a personal right to privacy. As we noted, that seemed like a pretty ridiculous claim, but the appeals court accepted it. We were therefore happy to see the Supreme Court pick up the case last fall, and now it has unanimously ruled against AT&T (8 - 0, with Kagan not taking part, since she filed the original brief for the federal government in support of the FCC). Considering the complaints some have made about the Supreme Court taking the idea of "corporate personhood" too far, I think plenty of people (who don't work for AT&T) will agree that this ruling makes plenty of sense. A corporation has a right to keep certain information secret and confidential, but the idea it has a "right to privacy" makes no sense.

The actual ruling (embedded below) is quite interesting in noting, while corporations may be "persons," that does not automatically afford them "personal" rights.

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002); "corny" can mean "using familiar and stereotyped formulas believed to appeal to the unsophisticated," id., at 509, which has little to do with "corn," id., at 507 ("the seeds of any of the cereal grasses used for food"); and while "crank" is "a part of anaxis bent at right angles," "cranky" can mean "given to fretful fussiness," id., at 530.

Even in cases such as these there may well be a link between the noun and the adjective. "Cranky" describes a person with a "wayward" or "capricious" temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a "crank" takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC's argument that "personal" does not, in fact, derive from the English word "person," but instead developed along its own etymological path, Reply Brief for Petitioners 6, simply highlights the shortcomings of AT&T's proposed rule.

"Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, we typically "give the phrase its ordinary meaning." Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). "Personal" ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word "personal" to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that's personal." A company spokesman, when asked for information about the company, would not. In fact, we often use the word "personal" to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view.

Justice Roberts, who wrote the decision, then goes on to pick apart each argument made by AT&T as to why it should be allowed "personal" privacy, leading to the rather obvious punchline that you have to think the Justices had in mind to use from the very beginning:

We reject the argument that because "person" is defined for purposes of FOIA to include a corporation, the phrase"personal privacy" in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Filed Under: corporations, fcc, foia, personal privacy, personhood, privacy, supreme court
Companies: at&t, fcc

Rep. Issa Wants List Of Everyone Who's Filed FOIA Requests; Increasing Transparency Or Chilling Future Requests?

from the depends-on-how-you-look-at-it dept

Rep. Darrell Issa, the new head of the House Oversight Committee recently requested that all of the various federal agencies give him all sorts of data about everyone who's sent a Freedom of Information Act Request for the past five years. He claims that this is to review how the agencies respond to such requests, and hopefully make the process work even better. And, in fact, many transparency advocates are hopeful that this will lead to greater transparency, if the somewhat flawed FOIA process can be made better. However, others are viewing the whole exercise in a much more nefarious light, suggesting that Issa is creating chilling effects, by looking closely at who's filing such requests.

It seems like the latter response may be a bit of an overreaction. The government already has this information and is it really problematic for someone to compile all the info to see who's filing such requests? There obviously could be some serious concerns if there's any form of retaliation, but there's no indication of that happening (or being likely to happen). While it should be watched, if this process really is about getting the government to really be more open, then that sounds like a good idea.

Filed Under: chilling effects, darrell issa, foia, freedom of information, transparency

Massachusetts Threatens Website For Publishing Info It Gave The Site After A FOIA Request

from the locking-up-of-information dept

An anonymous reader sends over the news that the website MuckRock.com -- an open records website -- has received a threat letter from the Massachusetts Department of Transitional Assistance, concerning some food stamp data that MuckRock had published. How did MuckRock get the data? It had filed a Freedom of Information Act request to the Massachusetts Department of Transitional Assistance, who gave it to them. Apparently, the department now realized that it released the data in error and is trying to erase the mistake by ordering the site to delete the info.

I am writing to inform you that certain information found on the website http://www.muckrock.com, which lists individual retailer redemptions for the Supplemental Nutrition Assistance Program (SNAP), is posted in violation of federal law.. [sic] This information was erroneously released by the Department of Transitional Assistance to Spare Change News. Federal law prohibits release of such information under 7 U.S.C. 2018(9)(c), and 7 CFR 278.1(q).

Failure to remove this information may result in fines or imprisonment. 7 U.S.C. 2018(9)(c) (“any person who publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by Federal law (including a regulation) any information obtained under this subsection shall be fined not more than $1,000 or imprisoned not more than 1 year, or both).

The Department has told the press that it was the federal government which alerted it to the mistake and the department decided to inform the MuckRock owner that he might face potential legal problems from the federal government, but didn't intend the letter to be a direct threat from itself. Of course, now that the news of the demand has been made public, the original information will only get that much more attention...

Filed Under: foia, freedom of information, massachusetts, threats