New Bill Calls For An End To PACER Fees, Complete Overhaul Of The Outdated System

from the pass-this-pls dept

The perennial make-PACER-free legislation has arrived. If you're not familiar with PACER, count yourself among the lucky ones. PACER performs an essential task: it provides electronic access to federal court dockets and documents. That's all it does and it barely does it.

PACER charges taxpayers (who've already paid taxes to fund the federal court system) $0.10/page for EVERYTHING. Dockets? $0.10/page. (And that "page" is very loosely defined.) Every document is $0.10/page, as though the court system was running a copier and chewing up expensive toner. So is every search result page, even those that fail to find any responsive results. The user interface would barely have been considered "friendly" 30 years ago, never mind in the year of our lord two thousand twenty. Paying $0.10/page for everything while attempting to navigate an counterintuitive interface draped over something that looks like it's being hosted by Angelfire is no one's idea of a nostalgic good time.

Legislation attempting to make PACER access free was initiated in 2018. And again in 2019. We're still paying for access, thanks to the inability of legislators to get these passed. Maybe this is the year it happens, what with a bunch of courtroom precedent being built up suggesting some illegal use of PACER fees by the US Courts system. We'll see. Here's what's on tap for this year's legislative session:

Representatives Hank Johnson (D-Ga.) and Doug Collins (R-Ga.) are hoping to drastically change all of the above with their bipartisan reform effort, the Open Courts Act (OCA).

The bill would make online access to federal court records free to the public. It also contains language that would effectively improve upon PACER’s current and wildly out-of-date search functionality, increase third-party accessibility to the entire system, and upgrade and maintain the database using modern data standards.

This is a good bill. It aims for something more than just free access. (To be honest, that would at least offset the frustration of subjecting yourself to PACER's hideous charms in an attempt to talk it out of some filings.) Free access is a necessity. At this point, the presumed openness of the court still hides behind a paywall, separating citizens from courtroom documents under the naive theory that it's impossible to give something away if it costs money to produce. (And that assumption ignores the tax dollars already earmarked for running the court system.)

This bill would also drag the PACER system (presumably kicking and screaming) into the future… or at least a much more recent past. The 1995-esque front end would be updated, along with all the other stuff that doesn't work well… which is pretty much everything.

It would be a bit more future-proofed. The bill [PDF] demands transparent coding that will incorporate "non-proprietary, full text searchable, platform-independent" elements. This means documents will finally be searchable by the text they contain, rather than limited to locating documents by finding the right docket and going from there. And this will hopefully fix another problem with PACER: search issues baked into the system by jurisdiction divisions. Each federal court has its own login page and, while it's possible to search all jurisdictions, it's far more likely you'll be dimed to death by useless searches before you find what you need.

But who's going to pay for this, I hear the US Courts system asking? Well, like any other FTP service, it will be mostly supported by whales.

On its own terms, the OCA would take two to three years to modernize the overall CM/ECF so that all court documents are searchable, readily accessible and machine-readable regardless of an end user’s browser setup. During this period, so-called institutional “power users” would still be subject to PACER fees–if they charge over $25,000 annually.

But not forever.

After that, fees would vanish entirely.

Will this be the bill that sticks? Maybe. Courts are finding the PACER system questionable -- not just the barrier it places between the public and court documents, but the uses of the fees as well, very little of which has actually been spent on improving PACER itself. If there's something almost everyone agrees with, it's that PACER sucks. Being asked to pay for the dubious privilege of using a barely working system is the insult piled on top of the $0.10/page injury.

Filed Under: court records, doug collins, hank johnson, pacer, transparency

The Government Has Been Binging On Classification. Senators Say It's Time To Start Purging.

from the affected-agencies:-hey-if-it's-not-working-don't-fix-it dept

Senators Ron Wyden and Jerry Moran have published an op-ed at Just Security detailing the government's overuse of classification (and distaste for declassification) -- a practice that uses our tax dollars to keep secrets from us. Overclassification is a problem. It has been a problem for decades, but it keeps getting worse. Multiple government agencies spend billions every year marking things "classified" and then forgetting the documents they've classified still exist.

Under the current system, costly resources are used to hold on to records that no longer require classification resulting in an unnecessary waste of taxpayer dollars. The cost of the government’s classification system now exceeds $18 billion annually. Additionally, when records are kept classified for reasons that have nothing to do with national security, historians, journalists, public watchdogs and all Americans are denied their right to research historical events or examine the actions of their government to hold it accountable. As the line between classification for national security and pointless secrecy is blurred, public trust in government erodes.

What should be classified? That's anyone's guess. Most federal agencies err on the side of caution/obfuscation. Back when he was still president, Barack Obama tried to explain this in layman's terms. Unfortunately, his explanation -- handed out after some selective prosecution by the DOJ -- was not the paragon of clarity... although it did inform taxpaying laymen the government alone would decide what the public gets to see.

“There’s classified, and then there’s classified,” the president said.

Both are still classified. In some cases, the sharing of classified information is forgiven. In other cases, it's a prosecution. But the underlying fact remains: the government classifies too much stuff too often. The op-ed notes the Information Security Oversight Office has warned of a "deluge" of classified info in the federal document pipeline. What's already a catastrophe will become cataclysmic as more documents are created more often and classified more frequently.

If it costs us $18 billion a year just to classify documents, imagine the cost of declassifying info once it reaches its expiration date. At this point, the federal government is still saving us a few bucks by ignoring the stockpile of documents slated for declassification. This isn't making the public any more knowledgeable, but it is, in its own way, somewhat efficient.

The Senators say it's time for the declassification system to be overhauled and modernized. Sooner would be better, considering the "deluge" that's worrying the ISOO. They aren't just complaining about an ongoing -- and growing -- problem. The two Senators actually want to do something about it.

Records can be “tagged” so that when information is no longer suitable for classification, the records which include that information are easily identified for release. AI and machine learning can be used to find buried records appropriate for declassification. And when it is time to declassify records that include information from multiple government agencies, those agencies can be connected electronically rather than having to rely on couriers physically walking paper copies around Washington.

But will Congress or whatever president is in office like this solution? The government likes its secrets. So do its many employees, especially the powerful ones who don't like embarrassing or horrifying information coming to light, even if it's years after the fact. But they have an obligation to the public to be more open about the things they're doing -- and have done -- with the implicit blessing of taxpayers via their tax dollars.

Thanks to op-eds like these, we're aware we're paying $18 billion a year to have information hidden from us, sometimes for decades. And we know the government's obligations to the public are being ignored by government agencies more willing to throw money at classifying documents than digging through their archives for stuff that can be released. This needs to change. The fix might not be easy or cheap, but ignoring the problem isn't going to make it go away.

Filed Under: classification, declassification, government, jerry moran, overclassification, ron wyden, secrecy, secrets, transparency

Federal Court Temporarily Extends The NYPD's Famous Opacity, Blocks Release Of Misconduct Records

from the dammit dept

The NYPD barely bothers to punish officers who misbehave. This "misbehavior" often includes violations of rights and extrajudicial killings, but it appears the NYPD feels New York's "finest" should be above reproach. Consequently, NYPD internal investigations often conclude no officers should be reproached, allowing them to remain the "finest" even when they're really the worst.

A new wrinkle in the law fabric might change that. After years of doing nothing (and after years of the NYPD never bothering to invoke the law), the state repealed "50a," the statute that allowed the NYPD to withhold misconduct records from the public. For several years, the NYPD posted the outcome of internal investigations. Then it decided it was no longer going to do that. First, it blamed the high cost of printer ink. Then it cited the law that allowed it to stop posting reports where the press could access them.

Lawsuits followed. And -- as is the case whenever law enforcement opacity is threatened -- the NYPD's unions have intervened. It was too little too late. An injunction was sought and obtained, but ProPublica -- which wasn't a party to the lawsuit over 50a records -- published what it had already received from the NYPD. But the battle continues because future opacity is at stake. Unfortunately, a federal court has decided opacity must win out for the moment.

A federal court has halted the release of police misconduct records until a coalition of New York City’s police, fire and corrections unions can make their case to the United States Second Circuit of Appeals.

The ruling came Wednesday afternoon — just days after Manhattan Federal Judge Katherine Polk Failla ruled on a lawsuit brought by the unions over the repeal of the law shielding police personnel records known as 50a.

That's right. The union doesn't just want records blocked from release. It wants the law back on the books. This is all very procedural so it probably doesn't wipe away Judge Faila's distaste for this lawsuit. Five days prior to this temporary injunction, Faila had this to say about the union's challenge of the repeal.

The lawsuit, brought by the coalition of unions over the repeal of 50a, argued that releasing unsubstantiated or unfounded allegations would put officers and firefighters at risk and would affect their employment prospects if they leave their department.

But Failla said the unions failed to explain why an “officer in charge of hiring would be incapable of interpreting the records” and she had been “presented with no evidence of increased violence or threat of violence.”

The disclosures plaintiffs’ argument also seems to overlook the disclosures that have historically been made,” Failla said, noting that the NYPD had previously published disciplinary records in recent years at NYPD headquarters.

“Any injunctive relief that I would order, could not put that particular horse back in the barn,” she added.

And yet this ad hoc collection of union legal cowboys is desperate to do just that. The horse cannot be re-barned but maybe enough union members' money can be blown delaying the inevitable. This will be the trophy brought back to the rank-and-file. Money was spent in an attempt to thwart transparency. And -- in the absence of any real victories -- this will have to do.

Maybe in the end the courts will decide the repeal of 50a violates the many, many collective bargaining agreements the city has agreed to over the years. If so, New York City needs to let these expire and write new ones that actually give taxpayers a bit more bang for their buck. Accountability is a must. The city's unions continue to insist it's a luxury even the nation's largest city can't afford.

Filed Under: 50a, katherine polk failla, new york, nyc, nypd, police misconduct, police unions, transparency

A Paean To Transparency Reports

from the encouraging-nudges-are-better-than-beatings dept

One of the ideas that comes up a lot in proposals to change Section 230 is that Internet platforms should be required to produce transparency reports. The PACT Act, for instance, includes the requirement that they "[implement] a quarterly reporting requirement for online platforms that includes disaggregated statistics on content that has been removed, demonetized, or deprioritized." And the execrable NTIA FCC petition includes the demand that the FCC "[m]andate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers."

Any person providing an interactive computer service in a manner through a mass-market retail offering to the public shall publicly disclose accurate information regarding its content-management mechanisms as well as any other content moderation, promotion, and other curation practices of its interactive computer service sufficient to enable (i) consumers to make informed choices regarding the purchase and use of such service and (ii) entrepreneurs and other small businesses to develop, market, and maintain offerings by means of such service. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.

Make no mistake: mandating transparency reports is a terrible, chilling, and likely unconstitutional regulatory demand. Platforms have the First Amendment right to be completely arbitrary in their content moderation practices, and requiring them to explain their thinking both chills their ability to exercise that discretion and presents issues of compelled speech, which is itself of dubious constitutionality. Furthermore, such a requirement itself threatens the moderation process on a practical level. As we are constantly reminding, content moderation at scale is really, really, hard, if not outright impossible, to get right. If we want platforms to nevertheless do the best they can, then we should leave them to be focused on that task and not encumber them with additional, and questionable, regulatory obligations.

All that said, while it is not good to require transparency reports, they are nevertheless a good thing to encourage. With Twitter recently announcing several innovations to their transparency reporting (including now having an entire "Transparency Center" to gather all released data in one place), it's a good time to talk about why.

Transparency reports have been around for a while. The basic idea has remained constant: shed light on the forces affecting how platforms host user expression. What's new is these reports providing more insight on the internal decisions bearing on how platforms do this hosting. For instance, Twitter will now be sharing data about how it has enforced its own rules:

For the first time, we are expanding the scope of this section [on rules enforcement] to better align with the Twitter Rules, and sharing more granular data on violated policies. This is in line with best practices under the Santa Clara Principles on Transparency and Accountability in Content Moderation.

This data joins other data Twitter releases about manipulative bot behavior and also the state-backed information operations it has discovered.

Which bears on one of the most important reasons to have transparency reports: they tell the public how *external* pressures have shaped how platforms can do their job intermediating their users' expression. Historically these reports have been crucial tools in fighting attacks against speech because they highlight where the attacks have come from.

In some instances these censorial pressures have been outright demands for content removal. For instance, the Twitter report calls out DMCA takedown notices, and takedown demands predicated on trademark infringement claims. It also includes other legal requests for content removal. For instance, in its latest report covering 2019, it found that

[i]n this reporting period, Twitter received 27,538 legal demands to remove content specifying 98,595 accounts. This is the largest number of requests and specified accounts that we’ve received since releasing our first Transparency Report in 2012.

But removal demands are not the only way that governments can mess with the business of intermediating user speech. One of the original purposes of these reports was to track the attempts to seek identifying information about platform users. These demands can themselves be silencing, scaring users into pulling down their own speech already made or biting their tongues going forward – even when their speech may be perfectly lawful and the public would benefit from what they have to say.

We've written many times before, quite critically, about how vulnerable speakers are to these sorts of abusive discovery demands. The First Amendment protects the right to speak anonymously, and discovery demands, that platforms find themselves having to yield to, can jeopardize that right.

As we've discussed previously, there are lots of different discovery instruments that can be propounded on a platform (ex: civil subpoenas, grand jury subpoenas, search warrants, NSLs, etc.) to demand user data. They all have different rules governing them, which affects both their propensity for abuse and the ability of the user or platform to fight off unmeritorious ones.

Transparency reports can be helpful in fighting discovery abuse because they can provide data showing how often these different instruments are used to demand user data from platforms. The problem, however, is that all too often the data in the reports is generalized, with multiple types of discovery instruments all lumped together.

I don't mean they are lumped together the way the volume of NSL letters can only be reported in wide bands. (But do note the irony that all of these Section 230 "reform" proposals mandating transparency reports do nothing about aspects of current law that actively *prevent* platforms from being transparent. If any of these proposals actually cared about the ability to speak freely online as much as they profess, their first step should be to remove any legal obstacle currently on the books that compromises speakers' First Amendment rights or platforms' ability to be protective of those rights – and the law regarding NSLs would be a great place to start.)

I mean that, for instance, multiple forms of data requests tend to get combined into one datapoint. In this aggregated form the reports have some informational value, but it obscures certain trends that are shaped by differences in each sort of instruments' rules. If certain instruments are more problematic than others, it would be helpful if we could more easily spot their impact, and then have data to cite in our advocacy against the more troubling ones.

In the case of Twitter, these "information requests" are reported as either government requests or non-government requests. For the government requests they are further broken into "emergency" and "routine," but not obviously broken out any further. On the other hand, Twitter has flagged CLOUD Act requests as something to keep an eye on when it goes into effect, as it will create a new sort of discovery instrument that may not adequately take into account the user and platform speech rights they implicate. But whether these existing government data requests were federal grand jury subpoenas, search warrants from any particular jurisdiction, NSLs, or something else is not readily apparent. Nor are the non-governmental requests broken out either, even though it might be helpful to know when the subpoena stemmed from federal civil litigation, state civil litigation, or was a DMCA 512(h) subpoena (where there may not be any litigation at all). Again, because the rules surrounding when each of these discovery instruments can be issued, and whether/how/by whom they can be resisted, differ, it would be helpful to know how frequently each is being used. Censorial efforts tend to take the path of least resistance, and this data can help identify which instruments may be most prone to abuse and need more procedural friction to be able to stem it.

It may of course not be feasible to report with more granularity, whether for such reasons such as amount of labor required or any rules barring more detailed disclosure (see, again, NSLs). And platforms may have other reasons for wanting to keep that information closer to the chest. Which, again, is a reason why mandating transparency reports, or any particular informational element that might go into a transparency report, is a bad idea. But platforms are not alone; if one is being bombarded with certain kinds of information requests then they all likely are. Transparency on these details can help us see how no platform is alone and help us all advocate for whatever better rules are needed to keep everyone's First Amendment rights from being too easily trampled by any of these sorts of "requests."

Filed Under: fcc, ntia, section 230, transparency, transparency reports

Paulding County School District Now Trying To Duck FOIA Requests

from the teaching-moments dept

You will recall the brief clusterfuck that occurred earlier this month in Georgia's Paulding County. The school district there, which opened back up for in-person classes while making wearing a mask completely optional, also decided to suspend two students who took and posted pictures of crowded hallways filled with maskless students. While the district dressed these suspensions up as consequences for using a smartphone on school grounds, the school's administration gave the game away by informing all students that they would be disciplined for any criticism by students on social media in general. That, as we pointed out, is a blatant First Amendment violation.

Once the blow-back really got going, the school district rescinded the suspensions. In the days following, students and teachers at the school began falling ill and testing positive for COVID-19. It got bad enough that the school decided to shut down. With so much media attention, it was a matter of who was going to get the FOIA requests in for documents on what led to the suspensions first.

Vice put a request in. However, because this district can't seem to stop punching itself in the gut, the school district is attempting to duck the FOIA requests entirely. Not through redactions. It just isn't going to give up any internal documents at all, even as it acknowledges it has documents in hand.

"The District is in possession of responsive documents," the response, signed by W. Thomas Cable in their role as the attorney for the Paulding County School District, reads. "However, pursuant to Georgia law, the following categories of information have not been produced, via redaction or removal, to the extent a statutory exclusion is directly applicable."

The public records request response also says the records are "specifically required by the federal government to be kept confidential." School districts often attempt to reject freedom of information requests on the grounds of student privacy, but districts and individual schools should be able to produce redacted records that protect privacy while still giving information about how specific decisions were made behind the scenes.

Without question, the district has the ability to disclose the documents requested without violating any student or faculty privacy. What this is instead is a fairly brazen attempt to refuse a records request that will almost certainly be embarrassing for the district. Due to this, the refusal has gotten the attention of the Georgia First Amendment Foundation, which doesn't sound like the kind of group that is going to simply let this go.

The cover up is always worse than the crime, as they say. However bad those records would have made Paulding County School District look, it's now going to look all the worse with this attempt to bury the truth, should those documents eventually come out. And, given the speed with which the district retreated from the suspensions when challenged, you have to imagine a little bit of public pressure is all it's going to take here as well.

Filed Under: covid-19, foia, georgia, north paulding high school, pandemic, paulding county, transparency

DC Police Union Sues To Block The Release Of Names Of Officers Involved In Shootings

from the can't-be-making-info-about-public-servants-public dept

Washington DC responded to widespread protests following the killing of George Floyd with a set of police reforms that tried to address some systemic problems in the district's police department, starting with its lack of transparency and accountability.

The reform bill -- passed two weeks after George Floyd's killing -- placed new limits on deadly force deployment, banned the Metropolitan PD from acquiring military equipment through the Defense Department's 1033 program, and mandated release of body-camera footage within 72 hours of any shooting by police officers. The names of the officers involved are covered by the same mandate, ensuring it won't take a lawsuit to get the PD to disclose info about officers deploying deadly force.

But there's a lawsuit already in the mix -- one that hopes to keep the public separated from camera footage and officers' names. Unsurprisingly, it's been filed by a longtime opponent of police accountability.

The Washington, D.C., police union said on Monday it asked a court to block the mandatory release of body camera footage and names of police officers involved in shootings.

According to the union, releasing the names of officers will do bad things to the good names of cops who kill people.

“The release of the body-camera footage and names of officers will unjustly malign and permanently tarnish the reputation and good name of any officer that is later cleared of misconduct concerning the use of force,” the union said in a statement.

First off, it's almost impossible to "permanently tarnish" a cop's reputation. Even the worst cops often have little trouble resuming their law enforcement careers after engaging in egregious misconduct. They may have to shop their resumes around a little bit, but lots of PDs and Sheriffs' offices are more than willing to hire bad cops no longer welcome at their original agency.

Second, nothing about this should hinge on whether or not the force deployment was justified. If an officer is later cleared of wrongdoing, they'll be able to go back to work. If not, they'll probably still be able to go back to work -- either with the DCPD or with any other agency more interested in staffing their forces than performing due diligence.

And it's a little rich for the union to ask that officers' names be withheld on the off chance they might be found innocent. The names of people arrested or cited are public records, even if they're ultimately never convicted of a crime. Suing to get cops held to a lower standard is a terrible use of taxpayer funds. Public sector unions collect dues from paychecks and build their litigation war chests using donations from officers -- all of which can ultimately be traced back to the same public the union is trying to keep in the dark.

The lawsuit [PDF] (which inexplicably isn't included in multiple articles about the lawsuit) raises the specter of vengeful vigilantes hunting down cops who killed or maimed friends or family members.

When officers justifiably use force against a criminal suspect, the immediate public release of the officer's name and the body-worn camera footage will allow the suspect and their associates to identify the officer and potentially seek retribution against the officer and his or her family.

This is a ridiculous reason to withhold officers' names. This is Hollywood rationale -- an uninspired trope that's best left in an undeveloped screenplay. It's not that it never happens. It's that it happens so rarely it can't be raised as a plausible argument for blanket secrecy.

The lawsuit also argues -- equally implausibly -- that there's an inherent right to privacy contained in actions performed by public servants in public.

The release of the officer's name and other identifying information contained in the body-worn camera footage will further impermissibly invade the officer's fundamental right to privacy.

Doesn't seem there would be that much privacy in performing public service, especially when someone gets serviced to death by an officer's force deployment. But that's the argument the union will make to shield its fan base from public criticism. Hopefully, the DC court will route this lawsuit to its OUT box as quickly as possible so DC residents can start benefiting from the transparency the district has finally forced on its police force.

Filed Under: accountability, body cams, police, police unions, protests, transparency, washington dc

Judge Hits District Attorney Who Issued Fake Subpoenas With A $50,000 Penalty For Blowing Off Records Requests

from the I-guess-laws-are-something-only-little-people-have-to-follow dept

Orleans Parish District Attorney Leon Cannizzaro continues to get himself in legal hot water. Back in 2017, New Orleans journalistic outlet The Lens uncovered his office's use of fake subpoenas to coerce witnesses and crime victims into showing up to provide testimony and make statements.

The documents weren't real. They had never been approved by a judge. But they still had the same threat of fines or imprisonment printed on them. Just like the real ones. But these threats were also fake -- no judge had given the office permission to lock these witnesses/victims up.

Once this practice was exposed, the lawsuits began. The DA's office was sued multiple times by multiple plaintiffs. One suit -- filed by the MacArthur Justice Center -- demanded copies of every bogus subpoena issued by the DA's office. Another -- filed by the ACLU -- sought the names of every DA's office attorney who'd signed or sent one of these bogus subpoenas.

Yet another lawsuit targeted the DA's office and the DA directly for violating the law and citizens' rights by issuing fake subpoenas. That one is still pending but DA Cannizzaro and his attorneys were denied immunity by the Fifth Circuit Court of Appeals, making it far more likely someone will be held personally responsible for cranking out fake legal paperwork.

The MacArthur Center lawsuit continues. And it's more bad news for the DA, which has spent nearly a half-decade dodging the Center's public records requests.

An Orleans Parish Civil District Court judge has issued a $51,000 judgment against District Attorney Leon Cannizzaro for his office’s failure to turn over bogus subpoenas under a public-records request filed two years before the practice was exposed by the Lens.

Judge Ethel Julien said in a Monday ruling that Cannizzaro acted “arbitrarily and capriciously” when he failed to fork over documents requested by an attorney for a nonprofit law firm who was probing the practice in 2015.

Cannizzaro's defense of his stonewalling has changed over the years. His office first denied the request back in 2015, claiming it was too "burdensome" to hand over copies of witness subpoenas issued by prosecutors. Then The Lens broke the news about the fake subpoenas. The DA's office then claimed it didn't have to fully fulfill the request because the Center hadn't asked for any fake subpoenas.

In its defense, the District Attorney’s Office said the fake subpoenas weren’t covered by Washington’s request -- because they weren’t the genuine documents for which Washington specifically asked.

The DA is appealing the decision, of course. His office likely would have appealed it anyway, but this appeal might be more personal. The MacArthur Center says the $50,000 penalty issued by the judge may end up being applied against Cannizzaro himself, rather than his entire office, because the judge found the DA himself had "acted unreasonably."

The saga continues, with the DA and his office looking worse and worse with every new court ruling. True, it's sometimes difficult to secure cooperation from witnesses and crime victims. But the solution isn't to bypass the court system and threaten people with bogus legal documents. Prosecutors are supposed to help enforce laws, not break them.

Filed Under: district attorney, fake subpoenas, leon cannizzaro, orleans parish, records requests, transparency

Appeals Court: Government Can't Keep Warrants Under Seal Just Because The Unsealing Process Is Difficult

from the 'hard-work-is-hard'-is-not-an-acceptable-excuse dept

The US government's law enforcement agencies really enjoy their unearned secrecy. They file warrants and subpoenas under seal, rendering entire dockets useless, if not completely invisible. And they maintain this secrecy for years, long after the underlying investigations have been closed.

Some of the documents the government loves to file under seal include SCA [Stored Communications Act] warrants and pen register/trap-and-trace [PRTT] orders. Since 2013, Jason Leopold has been fighting the government's opacity. In 2016, he was joined by the Reporters Committee for Freedom of the Press in his attempt to get this blanket secrecy lifted.

Arguing that courts still bear a presumption of openness and transparency, Leopold challenged the government's sealing of these records. In 2018, Judge Beryl Howell gave Leopold and the RCFP a partial win. It ordered the government to produce a sampling of all the records filed under seal.

This wasn't enough. This only covered about 10% of the government's filings. Leopold and RCFP demanded more. The government responded that it would be too "burdensome" for it to dig into its dozens of sealed dockets/documents to see what could be released without harming long dead investigations or always-apparently-in-peril national security. Unfortunately, Judge Beryl Howell agreed.

The DC Appeals Court has taken a look at the case and says the government needs to get busy handing stuff over. The "tradition of openness" covers these warrants and orders, and claiming compliance is difficult isn't a legitimate excuse for unjustified secrecy. Here's a taster from the opening of the decision [PDF]:

The public’s right of access to judicial records is a fundamental element of the rule of law. Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all. We therefore reverse the judgment and remand the case for further proceedings.

There have been some compromises made over the past several years, but the government has refused to respect the "tradition of openness" US courts operate under. This is where the challenge before the Appeals Court arises: Leopold/RCFP want a new presumption of openness to be in play going forward. The government, however, believes some random SCA/PRTT scraps should be enough to satisfy the public interest.

Regarding past filings, the applicants still sought basic docket information for SCA § 2703(d) matters and specified details to be extracted from 100% of pen register matters filed by the U.S. Attorney’s Office since 2008 -- both involving closed investigations only. The applicants no longer sought any of the actual documents or any retrospective relief whatsoever with respect to SCA warrants. Regarding future filings, they requested real-time access to basic docket information, as well as the presumptive unsealing at the close of investigations of applications (and supporting documents), orders, and docket entries for SCA warrants, SCA § 2703(d) orders, and pen register orders.

This doesn't seem like an onerous request. Unsealing documents at the close of an investigation should be the baseline standard. If parts of a closed investigation implicate ongoing investigations, the government still retains the power to redact info. But hiding everything -- including the docket itself -- isn't the answer.

The government has some legitimate interest in secrecy. But it still has an obligation to the public. The Appeals Court says it must follow through on that obligation, no matter how inconvenient it might be for the government.

It is undisputed, then, that in considering the legitimate interests identified in Hubbard, a court may reasonably find that the administrative burden of protecting those interests should affect the manner or timing of unsealing. As the district court said, the Clerk’s Office cannot simply press “print” and unseal docket information that might jeopardize personal privacy or ongoing investigations. The applicants cannot and do not expect the U.S. Attorney’s and Clerk’s Offices to disclose records without redactions or to drop everything and make unsealing their top priority.

But although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever. The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981). Production may be time-consuming, but time-consuming is not the same thing as impossible.

The presumption of openness will now travel back down to the lower court that blew the decision the first time around. And at some point, the government will actually start having to deliver the records Jason Leopold asked for more than a half-decade ago.

Filed Under: sca, sealed, secrecy, stored communications act, transparency, warrants

L.A. Newspaper Sues Sheriff's Department Over Its Repeated Refusal To Comply With The Law

from the law-ignorement-officers dept

Very few California law enforcement agencies welcomed a new state law that finally lifted the ordained opacity that shielded misbehaving cops from the public's scrutiny. The law that went into effect at the beginning of 2019 gave California residents access to records dealing with misconduct, use-of-force, and other "bad apple" behavior for the first time in decades.

State law enforcement agencies responded to the new transparency by obfuscating, stonewalling, and suing. The smartest agencies destroyed records with their cities' blessing before the public could get to them. The state's top cop even claimed the law did not affect records created before the law went into effect, directly contradicting the legislation's author. Public records requesters sued back, knowing they were in the right. After all, not a single court in the state has aligned itself with law enforcement's fervent belief it should never be accountable ever, no matter what laws are on the books.

The Los Angeles Times is suing the Los Angeles Sheriff's Department for refusing to follow the new law. But who could blame the gang-infested LASD for being evasive, what with its unusually large number of reasons to keep the public in the dark about its activities?

Eighteen months after making a very detailed request for information about misbehaving officers, the LA Times is asking a court to benchslap the Sheriff's Department around a bit. As additional leverage, the Times is quoting the law, which makes compliance mandatory, rather than something whose nuances should be sorted out in front of a neutral party.

Before we get into the LA Times' lawsuit [PDF], let's just warm up with a statement from the LASD:

A county spokeswoman… said in a statement that L.A. County is “committed to fulfilling its responsibilities” under the California Public Records Act.

is it tho?

[T]the Sheriff’s Department denied The Times’ first and second CPRA requests for electronic records and letters of discipline, claiming that The Times’ requests were overbroad. LASD claimed that it was “unable to assist … with your request as it is too broad in scope” and that The Times had not made requests that “reasonably describe the identifiable record or records.” The Sheriff’s Department claimed that The Times would have to identify specific names to obtain SB 1421 records, even though SB 1421 has no such requirement and the names of deputies disciplined were not public before the Legislature enacted SB 1421.

First, the LASD demanded the LA Times request records using officers' names -- information that had been unavailable for years until this law was passed. Then it decided to keep playing hard to get even after the newspaper came up with the names the law didn't say it had to have in its possession to request these records.

While Cmdr. Scott Johnson of the Sheriff’s Department stated on April 5 and 8, 2019, in communications by phone and email, that the Sheriff’s Department would provide records on a rolling basis regarding the 325 named individuals, the County has failed to provide responsive information on more than 300 of them even though more than 18 months have passed since SB 1421 went into effect.

Out of the 325 officers' records requested, the LASD has only bothered responding with info on nine of them. And, despite claims that a shortage of manpower was keeping them from complying with the new law, the department had time to shower the LA Times with tons of bullshit-laden digital paper.

On February 6, 2020, the Sheriff’s Department sent several hundred identical emails claiming that “stays … prohibited the Department from releasing records until they were lifted,” even though the stays had been lifted eleven months earlier.

After screwing around for another couple of months with supposedly limited resources, the LASD asked the Times if it really wanted the records it had spent most of 18 months asking for. The answer is this lawsuit.

For a few more months, the LA Times continued to request more records. And the LASD continued to claim it was "gathering" records while failing to produce any evidence of this "gathering" or, indeed, the records themselves. And so the narrative continues for several more pages, part of the Times' 155-page lawsuit.

But, hey, taxpayers: this is all fine. The LASD doesn't just blow off newspapers and their public records requests. It's also sticking it to The Man!

L.A. County’s chief law enforcement watchdog, the Office of Inspector General, also sought documents — through a subpoena — related to allegations that Villanueva directed the coverup. The Sheriff’s Department did not comply.

God bless the boys in whatever-the-fuck-color they're wearing now, who are willing to spend our tax dollars thwarting the oversight we're paying for and ignoring the laws we want them to comply with.

Filed Under: bad apple, california, lasd, police misconduct, records, transparency
Companies: la times