State Supreme Court Says California Officials Can No Longer Hide Documents In Personal Email Accounts And Devices

from the an-obvious-conclusion,-nearly-a-decade-in-arriving dept

Public servants discussing public business. Should be public records, right? California politicians don't think so. The city of San Jose has spent eight years litigating the issue, hoping for the state's courts to find it permissible for public officials to hide official communications in personal email accounts and personal devices.

In 2009, activist Ted Smith requested records from the city of San Jose, triggering a long-running lawsuit which has only now reached its conclusion. A state appeals court previously ruled for the city, finding records stored in personal accounts/devices to be beyond the reach of the state's public records laws.

Fortunately, as the EFF reports, the state's supreme court has overturned that decision, making it much more difficult for public officials to stay out of the public eye. The decision [PDF] deals with the many arguments the city made -- several of which attempted to rewrite public records laws on the fly by taking certain phrases out of their context -- but the bottom line is this: public records still belong to the public, no matter where they're stored.

CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

The city tried to argue its agencies didn't need to comply with the state's public record law because the statutory language didn't specify records created by employees at local agencies. The court points out this limited interpretation is, at best, deliberately obtuse.

The City draws its conclusion by comparing the Act‟s definitions of “local” and “state” agency. Under CPRA, “ „Local agency‟ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” (§ 6252, subd. (a), italics added.) The City points out that this definition does not specifically include individual government officials or staff members, whereas individuals are specifically mentioned in CPRA‟s definition of “state agency.”

[...]

The City contends this difference shows the Legislature intended to exclude individuals from the local agency definition. If a local agency does not encompass individual officers and employees, it argues, only writings accessible to the agency as a whole are public records. This interpretation is flawed for a number of reasons.

A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf… A writing prepared by a public employee conducting agency business has been “prepared by” the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee's personal account.

The city also tried to claim documents stored in personal email accounts/devices were "inaccessible" to the responding agency -- and therefore inaccessible to public records requesters. Again, the court points out the obvious:

As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails.

[...]

An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." (Competitive Enterprise Institute v. Office of Science and Technology Policy, supra, 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account.

This ruling affects the entire state. It isn't just San Jose being made to comply with the spirit of the state's public records law by having the letter of the law explained to it by the state's highest court. It never was acceptable for public officials to hide public records in private accounts, but this ruling makes it officially wrong. Those looking to keep public discussions away from the public will have to be a bit more creative from now on, like the Sacramento legislators who have turned to self-destructing instant messages to play public records keepaway with their constituents.

Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.

Filed Under: california, emails, foia, public records

Vice President Fails To Demand An FBI Investigation After His Private Email Account Is Hacked

from the investigations-are-for-other-people dept

I can only assume Mike Pence is so self-absorbed he's literally incapable of recognizing his own hypocrisy. Either that or he's completely shameless.

After engaging in a presidential campaign where much was made of Hillary Clinton's private email address/server, Pence went to court to prevent his AOL emails from being released to public records requesters.

I can only assume Pence is now welcoming an FBI investigation into his use of an AOL account.

Clinton routed sensitive documents through an insecure personal server. Pence is doing the same. While Clinton was advised against setting up her own personal email server, it's likely Pence has had an AOL account for a long, long, long time. Sure, there's a difference between taking matters into your own hands and leaving your email security up to a third party, but the end result is no different: both were using private accounts to handle government business -- business that included the classified and sensitive information.

The main difference here is we know Pence's email account has been hacked. There were attempts made on Clinton's email server, but nothing out there suggests any of those attacks were successful. Considering Pence's earlier adamance about Clinton's careless email habits, it's probably time to invite the FBI to take a look at his careless handling of sensitive documents.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence's are typically less secure than government email accounts. In fact, Pence's personal account was hacked last summer.

Politicians routinely have to eat their words. They're rarely shy about casting the first (and several follow-up) stones, even while their own sins run dark and deep. But a guy who has an email investigation to at least partially thank for his new position should be following an own-words-based diet for the next several months. If nothing else, it might (MIGHT!) push him towards the occasional second thought before hitting "tweet."

If Pence were intellectually honest, he'd replace Clinton's name with his own in the statement he made to "Meet the Press" last year.

“What’s evident from all of the revelations over the last several weeks is that Hillary Clinton I operated in such a way to keep her my emails, and particularly her my interactions while Secretary of State with the Clinton Foundation governor of Indiana, out of the public reach, out of public accountability,” Pence said. “And with regard to classified information she I either knew or should have known that she I was placing classified information in a way that exposed it to being hacked and being made available in the public domain even to enemies of this country.”

Pence's former office is releasing a small subset of his AOL emails. The Indy Star has obtained around 30 of them, but the governor's office says it's withholding a majority of them because they're either (a) deliberative documents or (b) too damn sensitive to be released publicly.

If the governor's office won't release them, perhaps the hackers will. Sunlight is the best disinfectant, but sometimes an outsider kicking in the door and throwing open the blinds is the only way to achieve the transparency the public deserves.

Filed Under: classified info, emails, fbi, foia, hacked, hillary clinton, mike pence, private servers, public records

Chicago PD Uses Copyright To Refuse Release Of Its 35-Year-Old Deadly Force Training Film

from the public-interest,-private-control dept

When copyright is deployed as a censor, it usually means the removal of content. In the case of Freddy Martinez of Lucy Parsons Lab (instrumental in peeling back the opacity covering the Chicago PD's "black budget"), copyright is the excuse being given to prevent the release of information.

Martinez was hoping to obtain a copy of an instructional film the Chicago PD shows to incoming officers. This video -- made more than 30 years ago -- was highlighted in the DOJ's damning civil rights report. The DOJ noted that the video was outdated and the instructors presenting the film did absolutely nothing to ensure engagement or, you know, provide actual instruction.

From the report:

As just one example, a class we observed on deadly force involved officers’ viewing a video made roughly 35 years ago, prior to key Supreme Court decisions that altered the standards used to evaluate the reasonableness of use of force. The tactics depicted in the video were clearly out of date with commonly accepted police standards of today. Following the video, the instructor spoke for approximately thirty minutes, but did not give detailed information on justified versus unjustified use of deadly force or the standard of objective reasonableness — all essential topics for deadly force training. The training itself was inconsistent with CPD’s force policies, further undermining its utility in teaching recruits their obligations under Department policy and constitutional law.

That's not all the DOJ noticed. It also noticed no one in classroom seemed to care whether anyone got anything out of it.

Several recruits were not paying attention, one appeared to be sleeping, and there was minimal attempt made to engage the students in the lesson. In fact, the instructor arrived to the class ten minutes late and dismissed students twenty minutes early from this critical class on how CPD officers should use deadly force. The impact of this poor training was apparent. At the academy and during ride-alongs, our retained training law enforcement expert asked several PPOs to articulate when use of force would be justified in the field; only one PPO out of six came close to properly articulating the legal standard for use of force.

Naturally, a video on deadly force that puts new cops to sleep is something the public might be interested in seeing for themselves -- especially considering its contents are no longer aligned with Supreme Court decisions. Martinez filed a public records request for the video through MuckRock. The Chicago PD responded [PDF] by claiming copyright prevented the video's release.

Under 5 ILCS 140/7(1)(a) of the FOIA statute, a public body is allowed to withhold "[i]nformation specifically prohibited from disclosure by Federal or State law or rules and regulations implementing federal or State law." The Copyright Act of 1976, 17 U.S.C. §§ 101,et seq., grants only the holder of a copyright an exclusive right to reproduce and distribute copies of his work. [See 17 U.S.C. § 106]. Therefore, since the Department is not the owner of the copyright, CPD cannot reproduce said video.

As Martinez points out in his post for Lucy Parsons Lab, this would appear to be a pretty clear case of fair use. Worth litigating over? Possibly. Martinez initiated a public records lawsuit, but dropped it because the internet always provides.

The video, which was made in 1982, was available for purchase elsewhere on the Internet, however, and after some conversation in our Slack Channel, someone was able to locate the video on the Internet Archive, too. We had begun discussions about suing for the video under Illinois FOIA law because we believe it falls under the “Fair Use” exemption of the Copyright Act but because it is readily available for download, we dropped this prospect.

While the video remains live, plenty of people will have the opportunity to view a video plenty of Chicago cops slept through. Peter Falk narrates it, so it's not completely terrible. And viewing it from the comfort of your own computer is preferable to the option the PD extended to Martinez in lieu of sending him a copy:

You may contact the FOIA Division of the CPD to discuss a viewing of the requested video.

Granted, the CPD's copyright excuse is better than others we've seen offered by government agencies hoping to keep information out of the public's hands. The video was produced by a completely separate company and rights are apparently held by the Phoenix Learning Group. It's at that website that you'll discover this "training" film isn't actually a training film, but rather trimmed from a one-hour documentary that was produced to give TV viewers a little insight into police decision making, not provide cops with information they need to make solid use-of-force decisions. That explains the presence of Peter Falk. This also explains why CPD officers seem to know very little about deadly force and how to deploy it.

That's absolutely the point of public records requests like these: to let the public know why services they pay for -- like the city's policing -- are such a mess. This is just a small part of it, and it was nearly thwarted by copyright.

Filed Under: chicago, chicago pd, copyright, deadly force, fair use, foia, freddy martinez, police, public records, training

Court Says Location Of FBI's Utility Pole-Piggybacking Surveillance Cameras Can Remain Secret

from the OPERATION-REMORA dept

Last June, the FBI engaged in a public records lawsuit on its own behalf, seeking to prevent the city of Seattle from disclosing the locations of cameras the agency had mounted on city-owned utility poles. At the center of the case (for a short while) was privacy activist Phil Mocek, whose public records request for this information had spurred the FBI into action.

In its arguments against the city's disclosure of this information, the government posited the novel theory that revealing the cameras' locations would violate the privacy of those the FBI was actively surveilling.

Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged.

It made several related arguments in hopes of keeping this info from being revealed, including a modified "mosaic" theory and that, while all surveillance cameras are nominally created equal, the FBI's were more equal than others.

The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s).

The FBI presumably doesn't use its cameras to troll for criminal activity, at least according to its courtroom assertions. The City of Seattle, however, didn't feel particularly compelled to protect the location info of the FBI's parasitic contributions to its utility poles. Phil Mocek was removed from the FBI's suit, leaving the city to defend its proposed disclosure against the FBI's claims of a future full of unsurveilled criminal activity.

The FBI's lawsuit has now wrapped up with the agency coming out on top. In a short order, federal judge Richard Jones finds the location of the FBI's publicly-mounted cameras to be deserving of ongoing secrecy. From the court's order [PDF]:

The United States contends, and the Court is persuaded, that the requested information is (1) protected by the federal law enforcement privilege; (2) federal property, subject to the FBI’s right to control and prohibit the disclosure of the information by the City, absent the express authorization of the FBI; and (3) expressly protected from disclosure by the PRA. The Court is further persuaded that the disclosure of the requested information by the City will cause irreparable harm to important federal interests, namely, the ability to carry out effective investigations of criminal violations and national security threats.

The order includes an injunction that prevents the city from releasing this information for the rest of forever, no matter the underlying circumstances.

The City of Seattle, including any officers, agents and employees thereof, are hereby permanently enjoined from disclosing, in response to any request under the Washington PRA, or otherwise, the… information that it has received from the FBI, absent the express authorization to do so by the FBI…

This includes information that seemingly would have no further law enforcement use, like those used in closed or fruitless investigations. Unless some of these cameras are located in sparsely-populated areas of the city, it's highly unlikely anyone could work their way backward from the camera's location to determine the identity of the surveillance targets. But the court sees it the way the FBI sees it: that anything it declares to be protected by "law enforcement privilege" should remain that way indefinitely.

Filed Under: fbi, phil mocek, public records, seattle, secrecy, surveillance, utility poles

Chicago Mayor Promises To Turn Over Emails From His Private Accounts Following Courtroom Losses

from the getting-right-in-on-the-eighth-or-ninth-floor-of-the-inevitable dept

Not only is the use of private email accounts to route around public records requests a common practice, it's also an accepted practice. Politicians aren't going to sell out their own in the name of transparency, so there's likely as many private email accounts handling official business as there are government employees. Everyone from former New York City mayor Michael Bloomberg to Gen. Colin Powell has used private email accounts to handle government communications they'd rather not be made public.

The same goes for Chicago mayor Rahm Emanuel. For years, journalists and government transparency groups have been trying (and suing) to get the mayor to turn over city-related emails contained in his personal accounts. To date, the city of Chicago hasn't budged.

But we're living in a "new" era of Chicago-brand transparency -- the aftermath of the city's concerted cover-up of police recordings of the Laquan McDonald shooting. The mayor pledged the city would be more open and forthcoming in the future -- not a difficult promise to make considering there was nowhere to go but up.

Roughly a year after that announcement, one layer of opacity has been peeled back by the mayor's office. Given that it was prompted by multiple lawsuits and unsympathetic court rulings, it's probably best to hold any applause until something more proactive is witnessed.

As a result of a BGA [Better Government Association] investigation and legal action, The City of Chicago and Mayor Rahm Emanuel have agreed to release all of Emanuel's private emails related to city business—subject to any applicable legal exemptions—and institute a new policy that will ban city employees and officials from using their private email accounts to conduct city business.

The city's change in practices comes in response to Freedom of Information Act requests and lawsuits filed by the BGA, and separately by the Chicago Tribune, and follows more than a year of hard-fought litigation and rulings by two Cook County judges that public officials’ emails are not outside the scope of FOIA simply because they are on a private account.

If this clenched-teeth transparency sounds familiar, it's probably because Mayor Emanuel -- like the president he briefly worked for -- has promised unheard of levels of transparency…

Emanuel claimed from the start of his tenure at City Hall in 2011 that his leadership would be among the most transparent in the nation.

and delivered almost none of it.

But accessing public records at City Hall—especially documents about hot topics of those pertaining directly to the mayor himself—has often been met with delays, obfuscation or court battles.

And so it goes. This is an important victory for the public, moved along by court rulings stating pretty much the same thing Chicago's administrative branch is only now conceding: official business is official business, whether it's carried out on official email accounts or not. The new policy prompted by lawsuits and court losses orders city employees to push any work-related emails received on personal accounts to their city of Chicago accounts or face whatever form of discipline the city deems appropriate. The latter half of this sentence will dictate the success of the first half, so it's up to city employees to keep other city employees honest. Considering this is Chicago, birthplace of the mobbed-up politician, I expect it will be several more years before the city even begins to approach the lofty transparency goals its own mayor has shown no interest in attaining.

Filed Under: chicago, emails, foia, private emails, public records, rahm emanuel

Florida PD's Stingray Documents Oddly Don't Mention Stingrays Once

from the pen-registers-all-the-way-down dept

Curtis Waltman, filing his public records request through MuckRock, has obtained several hundred pages of documents related to IMSI catchers/Stingray devices from the Sarasota (FL) Police Department. There are a handful of interesting aspects about this haul, not the least of which is the fact that US Marshals basically raided the Sarasota PD's office in 2014 to remove Stingray-related documents ahead of the ACLU's scheduled examination of the files.

What's been obtained by Waltman is presumably part of the stash the Marshals didn't take. The other interesting fact is that there is no reference whatsoever to Stingray devices or IMSI catchers in the documents, despite that being specifically what was requested.

Here's Waltman's request:

To Whom It May Concern:

Pursuant to Florida's Sunshine Law (Fla. Stat. secs. 119.01 to 119.15 (1995)), I hereby request the following records:

Documents concerning IMSI catchers or any of the following words: "Stingray", "cell site simulator", or "dirtbox". including:

-Contracts with the Harris Corporation regarding the acquisition of their Stingray or KingFish IMSI catchers

-Department policies and procedure regarding the use of IMSI catcher technology

-policies and procedures on the keeping of statistics about the Department's use and acquisition of IMSI catchers

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

Whatever search the Sarasota PD performed was in response to these search terms. But as Waltman points out in his post about the document haul, none of those terms are found in the hundreds of pages returned.

These documents are the result of Joint Law Enforcement Operations Task Forces (JLEOs) that the SPD participated in from the years 2008 to 2014 with various local departments in their area, and also the DEA and the Marshals. Considering that South Florida has been designated as a High Intensity Drug Trafficking Area, or HIDTA, it’s not surprising that they are engaged in high level operations with federal law enforcement agencies.

What is surprising is how often they resorted to pen register and trap and trace court orders to be officially permitted to use their Stingray. Referring to cell site simulators as “trap and trace devices” is common, even by the DOJ.

Obviously, the Sarasota PD engaged in the same obfuscatory tactics other law enforcement agencies have, urged on by the FBI's omnipresent demands for secrecy. The PD was either using its own devices or those belonging to the US Marshals service, but the outcome was the same: court orders and subpoenas for dialing data covering up the use of cell tower spoofers to obtain this information in real time.

What is left in documents left behind by the Marshals seems to indicate the Sarasota PD has at least one device of its own. A DEA communication with the agency says a task force would be using "SPD's equipment" and a "Pen Order" to cover up this deployment.

Also of note is the fact that the US Marshals service seems to enjoy using the Sarasota PD's personnel and equipment, but is a bit more reluctant to pay its tab.

This is part of an ongoing response to Waltman, so there will be more documents on the way. What's arrived so far shows the PD is actively engaged in hiding its Stingray usage from courts by generating a misleading paper trail filled with redundant pen register orders. What may never arrive, however, is the documents the Marshals removed from the PD's office shortly before ACLU reps were supposed to meet with the PD to discuss the release of this information.

In any event, there's still plenty of secrecy enshrouding law enforcement's use of "secret" technology that honestly isn't that much of a secret anymore.

Filed Under: curtis waltman, florida, foia, public records, stingray

Government Agency Says It Will Cost $1.5 Million To Compile Birth/Death Data, Then Refuses To Release It At All

from the ain't-no-sunshine-when-she's-withholding dept

The easiest way to thwart a public records request is to demand a ridiculous amount of money up front. The McKinney Texas Police Department tried to chase away a request for records on a controversial cop by asking for $79,000 to fulfill it. Florida's state attorney's office stiff-armed a mother requesting official documents related to her own daughter's suicide by telling her it would cost at least $180,000 to round up the records. Even the federal government gets in on this action, with the FBI telling MuckRock it would cost more than a quarter-million dollars to deliver its records on government contractor Booz Allen.

Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request.

Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015.

The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.”

The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost.

A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million.

Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%.

A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease.

If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed.

At that point, the DHSS decided it was no longer interested in working with Reclaim the Records.

A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether.

I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us."

Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business.

Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.”

“By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated.

Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission.

What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it.

Filed Under: foia, missouri, missouri dhss, public records
Companies: reclaim the records

Following Public Records Request, State Legislature Votes To Make Government Contracts Secret

from the but-thanks-for-asking dept

A public records request is seemingly behind the Mississippi state legislature's speed decision to make even more legislative documents exempt from public records laws.

Mississippi Today asked for copies of the state's already-signed contract with EdBuild. The nonprofit company was handed $250,000 to begin working on an overhaul of the state's "Adequate Education Program" [how inspiring!], which determines school funding. Seems like the sort of thing that would be of interest to the public.

The state legislature doesn't agree its constituents should have any background information on something affecting the schools they send their children to.

Faced with a public records request from Mississippi Today for the state’s contract with EdBuild, a legislative committee voted Tuesday to adopt a new policy mandating that all contracts it approves be confidential.

The House Management Committee, which approves contracts entered into by the House of Representatives, used a voice vote to pass the policy, which states “All contracts entered into by the House Management Committee shall be confidential and shall not be released to any person or entity, except as specifically directed by the House Management Committee only when the committee deems necessary for the execution of the contract.”

Apparently just knowing its money is being spent should be good enough for the state's residents. All other details are best left in the hands of those deciding how the public's money will be spent. The public is being thrown a belated bone with a comment period that arrives after the contract has already been approved. Comments at the one-hour meeting are limited to three minutes each and commenters will have zero information work with.

This wasn't the vote the committee was supposed to engage in. The session in which the new restriction was passed was originally supposed to be used to discuss whether or not the legislature would release the contract to Mississippi Today. Rather than decide the fate of a single set of documents, the legislature granted themselves a broad exception to public records law.

In Mississippi, that's something the legislature is allowed to do.

Before the policy was passed, the Legislature essentially controlled its own rules about which records are public and which are not. The Mississippi Public Records Law says nothing in the law “shall be construed as denying the Legislature the right to determine the rules of its own proceedings and to regulate public access to its records.”

So much for transparency and accountability. Instead, Mississippi residents are asked to blindly trust their representatives. According to one legislator quoted in the piece, the only thing the state's public records law actually can pry loose from representatives is travel records.

Many legislators seem to prefer an uninformed electorate. This allows them to push their own agendas, rather than those of their constituents. Every few years, an appearance of caring is projected as voters are courted, but as soon as they're back in office, the only input they appear to want is monetary.

Contract information -- especially on awarded contracts -- should not be considered a de facto secret. The public deserves to know how its money is being spent. As it stands in Mississippi, the public is only going to be told its money is being spent. Everything else is just none of their business.

Filed Under: contracts, mississippi, public records, transparency

Updated! Massachusetts Police Dept. Files DMCA Takedowns On News Stories Using Mugshots Taken By Police

from the copyright-as-censorship dept

Update: We've written up a followup to this post, noting that the Chief of Police in Burlington insists that this was not done by them, and they have no problem with the press using these images. It would appear that someone else is abusing copyright law to try to block these stories -- and since the stories are about people being arrested, it's not hard to put together a list of people with motives to abuse copyright law in this manner. Please read the follow up post, before reading this original post below.

Here we are with yet another example of copyright as censorship. This one comes from the Shooting the Messenger blog, which dug up a fascinating story of how the Burlington, Massachusetts Police Department appears to be abusing copyright law to try to censor articles written about people they've arrested. Specifically, a representative from the police department has filed a bunch of DMCA notices with Google, targeting around 30 news stories, claiming the Police Department holds the copyright on the mugshots used in those stories. You can see one of the notices over at the Lumen Database, and you'll quickly notice that it's not like they're targeting fly-by-night websites, but all sorts of big name press outfits, including CBS, the Boston Herald and the Denver Post. The explanation given is pretty silly too in that it's barely comprehensible:

Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us.

Now, as we've discussed in the past, works of the federal government are simply not subject to copyright law. When it moves down to the states, it's either not entirely clear or subject to specific state laws. And in Massachusetts, the rule is that "records created by governments are not copyrighted and are available for public use." Separately, in Massachusetts, it's been determined that mugshots are public records, meaning that the police department has even less control here. And of course, even if these images were subject to copyright protections, their use in reporting would clearly be fair use.

Assuming that Mike Ferrell actually represents the Burlington Police Department, it appears that he and the police department are flagrantly violating the law in an attempt to censor news stories in the public interest. If he doesn't represent the Burlington Police Department, he's also misrepresenting himself, and potentially committing perjury, as an official DMCA notice requires stating, under the penalty of perjury, that you're authorized on behalf of the copyright holder.

No matter what... something not good is happening here, and it's yet another in an increasingly long list of examples of censorship by copyright.

Filed Under: burlington, censorship, copyright, dmca, massachusetts, mike ferrell, mugshots, public records

Another Court Says Personal Email Accounts Still Subject To Public Records Requests

from the not-the-way-that-works dept

Another decision has been handed down that should further discourage public officials from utilizing private email accounts to conduct public business. Certainly public officials are welcome to use any email account they wish, but they shouldn't expect the use of a non-government account to shield their communications from the public. (And, if that's the case, why bother using a private email account while working for the government? All it really does is give the impression you're trying to hide something.)

In this case, a Puyallup, Washington councilman (Steve Vermillion) set up his own personal website and email address to use in conjunction with his state congressional run. He continued to use it after this effort had ended, and frequently received emails from constituents and city employees at the private email address. For the most part, Vermillion handled city business through a city account, but still answered questions and engaged in communications related to public work through his private account.

These emails were requested under the state's public records law. Vermillion claimed emails contained in this account were not subject to the law. His legal theory -- backed up by the city itself -- was that any emails contained in this account were his "private papers." The denial of the records request resulted in this lawsuit. A lower court found in favor of the records requester and the city immediately appealed it to the state's Supreme Court. The Supreme Court dumped it back down a level to the Appeals Court, forcing the line-jumping defendants to exhaust their other options first.

Unusually (for a public records lawsuit), Vermillion theorized his constitutional rights were violated by the records request. These theories failed to persuade the lower court. From the decision [PDF] (via FourthAmendment.com):

The superior court denied the City’s motion, but granted West’s motion in part, ruling that (1) the Fourth Amendment’s protections against search and seizure were not implicated because Vermillion had no reasonable expectation of privacy in communications “related to the public’s business”; (2) the privacy protections under article I, section 7 did not apply because West was not seeking private information; (3) the First Amendment was not implicated because West was not asking for political activity records; (4) Vermillion was not subject to the City’s policy prohibiting City employees and volunteers from performing city business on personal or third-party “technology resource[s],” which include electronic or digital communications and commingling of City and non-City data files; and (5) the public has a right to inspect public records located on a personal computer unless the records are “highly offensive to a reasonable person and are not of legitimate public concern.” The superior court then ordered Vermillion “under penalty of perjury [to] produce records that are within the scope of [p]laintiff’s records request.”

The Fourth Amendment claim is especially interesting because I have yet to see this raised in conjunction with a public records request. The argument so completely misconstrues these protections it's amazing the city stepped in to help support it. Then again, most government bodies will take any pitch-black port in a transparency storm, so pushing an argument that posits that a government entity searching for government documents somehow violates a government employee's Fourth Amendment protections is one of those things you do just in case it might provide a blueprint for future opacity.

Fortunately, the court makes it clear that personal email accounts cannot be used to route around public records requests.

Appellants argue that the superior court erred in ordering Vermillion “to produce e[-]mails from his personal e[-]mail account and swear under [penalty of] perjury that he had complied.” Specifically, Vermillion argues that the PRA does not “authorize an agency to require an elected official to search a personal e[-]mail account.” We reject Vermillion’s argument. Nissen squarely addressed this argument and held that an agency’s employees or agents must search their own “files, devices, and accounts,” and produce any public records, including “e-mails,” to the employer agency that are responsive to the PRA request. The Nissen court also held that affidavits by the agency employees, submitted in good faith, sufficient to satisfy the agency’s burden to show it conducted an adequate search for records. Thus, we hold that it was proper for the superior court to require Vermillion to produce to the City e-mails in his personal e-mail account that meet the definition of a public record under RCW 42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy of his search for the requested records.

The city raised another interesting argument on appeal. And by interesting, I mean novel. The city (and Council member Vermillion) attempted to push the brand new theory that Vermillion's specific position within the city government somehow made his communications unreachable through records requests. The court found this theory equally unpersuasive.

In reply, appellants argue, for the first time, that the result must be different as applied to them because Vermillion was an elected legislative official, rather than an elected executive official. Appellants contend that this distinction is important because “unlike an elected executive official such as a county prosecutor, an elected legislative official has no legal authority to act on behalf of the city through e[-]mail, or to take any unilateral action on behalf of the City at all.” We disagree.

A record subject to disclosure under the PRA is not contingent on its possessor’s ability to take unilateral action on behalf of the agency. Instead, a record is subject to disclosure under the PRA if it is “a record that an agency employee prepares, owns, uses, or retains in the scope of employment.”

Despite there being very little legal precedent to support these obfuscatory tactics, government employees still hold out hope that the use of private email accounts and personal devices will allow them to skirt their obligations to the public. Sometimes it works simply because the public is unaware of these accounts or devices. You can't FOIA what you don't know exists. But even when the public is aware, it far too often requires going through the time and expense of a lawsuit to force the government to turn over these documents.

Filed Under: email, personal email, public records, puyallup, steve vermillion, washington