NYPD Wants $42,000 To Turn Over Documents Related To Discharges Of Officers' Firearms

from the The-Man-sticks-it-to-the-public...-again dept

The NYPD is jerking around FOIL (Freedom of Information Law) requesters again. Usually, the NYPD just pretends it's the CIA (somewhat justified, considering its hiring of former government spooks) and claims everything is so very SECRET it couldn't possibly be edged out between the multiple exemptions it cites in its refusals.

It tried the usual deflectionary tactics with Shawn Musgrave, who's seeking the department's mandatory reports on firearms discharges by its officers. After five months of promising to get to his request, the NYPD finally sent out a response letter denying him access to every document he requested, citing a plethora of FOIL exemptions.

While the NYPD may be (purposefully) terrible at remembering pertinent FOIL-related court decisions, Musgrave isn't. He quickly responded with this:

The NYPD FOIL office has not claimed inability to find the requested 24-hour and 90-day reports following firearm discharges for 2010 through 2014. Rather, the NYPD errantly claims that these documents are exempt from release under FOIL for a variety of reasons.

All of the cited exemptions are categorically incorrect. No less an authority than the Supreme Court of the State of New York has ruled as much in a case that is virtually identical to the present request.

In January 2009, the New York Civil Liberties Union submitted a FOIL request to the NYPD for 24-hour and 90-day shooting incident reports from 1997 through 2008 (see http://www.nyclu.org/case/nyclu-v-nypd-seeking-access-police-shooting-incident-reports). As you can see from my original request, these are precisely the same documents I seek.

The NYPD rejected that request, claiming that such reports were exempt from disclosure pursuant to:
1) Public Officers Law 87(2)(a), New York Civil Rights Law 50-a(1);
2) Public Officers Law 87(2)(b) and 89(2);
3) Public Officers Law 87(2)(e)(i-iv);
4) Public Officers Law 87(2)(f);
5) Public Officers Law 87(2)(g);

Conveniently, these are the same exemptions by which the NYPD FOIL office has rejected my present request. I will allow Judge Goodman's ruling in the NYCLU case (see http://www.nyclu.org/files/releases/NYCLU%20v%20%20NYPD%20Shooting%20FOIL%20decision%202-14-11.pdf) to address the invalidity of the NYPD's response in my own case:

"The issue is whether the 24-hour and 90-day firearms discharge incident reports are categorically exempt from disclosure under FOIL. After a careful review of the NYPD Firearms Discharge Manual containing the 28 section form for the 24-hour and 90-day firearms discharge incident report, the Court finds that these reports are not categorically exempt."

Having been reminded that the Supreme Court of its home state had previously said it couldn't do the very thing it was attempting to do, the NYPD's FOIL team regrouped. A month later it finally admitted Musgrave's appeal had been accepted. Three weeks after that, it told him it could have all the documents the state's highest court had declared any citizen could access... for the price of a late model SUV.

It is estimated that the copying fee for preparation of the requested copies, including redaction and copying thereof, is $42,000. Preparation of the copies will commence upon receipt of payment of in the form of a check or money order in the amount of $42,000, payable to New York City Police Department.

The response doesn't explain how the NYPD reached this dollar amount. It simply states that it is the dollar amount the NYPD will be charging and that nothing will be done until the money is in its hands.

Having failed to discourage Musgrave with its bogus exemption ploy, the NYPD has gone for another favorite technique of open records request-resistant agencies: pricing requesters out of the market. Musgrave will certainly be appealing this estimate, but until forced to back down by higher authorities, the NYPD has successfully managed to evade yet another records request.

Filed Under: fees, foia, nypd
Companies: muckrock

Kim Davis's Approach To Email More Outdated Than Her Views On Marriage

from the literally-does-not-compute dept

Kim Davis -- yes, THAT Kim Davis -- is proving to be as willfully obtuse in her other duties as a Kentucky county clerk as she has been in refusing to recognize the Supreme Court's decision on same-sex marriage. Her brief stint in the local jail for contempt charges hasn't dampened her indomitable spirit, much to the chagrin of her critics, fellow employees (except her son, who works in her office as a deputy clerk) and anyone still attempting to make their way past her refusal to separate church and state.

Shawn Musgrave has requested all of Kim Davis's emails (sent or received) from August 1st through September 16th. It would appear Davis's current status as a pariah/hero (mileage varies greatly) has resulted in an outpouring of support/hate. According to her estimate, there are 6,000 emails responsive to Musgrave's request. So, of course, she has decided to handle her office's response in the least efficient way possible.

Hello,

I have received your request and need to confirm, I can furnish you with all that you have requested. There are well over 6000 or so emails received/sent during the time period you have ask for. With that being said, there will be considerable time and paper consumed in the processing of your request. I am estimating approximately 40 hours of labor at $12.50 per hour to retrieve and print all emails, along with a copy fee of $.10 per copy and the open records $3.00 fee plus postage for mail (estimated $100.00) for the request. This would make the approximate amount due $1,203.00. Once that amount is received, ($1,203.00 will be considered a deposit until all the records have been processed, if it is less, I will refund you the difference, and if more is due, I will contact you with the additional amount due prior to releasing said records), your request can begin to be processed.

Respectfully,

Kim Davis
Rowan County Clerk

Yes, as you probably would have guessed even without seeing it in [print] pixels, Kim Davis is one of THOSE people. The kind of person who still thinks email is a passing fad/tool of the devil and views trips to the post office as social events. And if she isn't one of THOSE people, she's one of those OTHER people -- the kind of public servant who thinks the government's job is to be as much of a standoffish dick as possible to the "little people" who pay their salaries. (Think every DMV you've ever set foot in...)

Davis's response was probably meant to dissuade Musgrave from pursuing this further. She picked the wrong FOIA warrior to tangle with.

Musgrave's immediate followup was to ask why in the name of all that is considered holy by certain people/not-so-holy by others would someone print out 6,000 emails and hand them off to the next Pony Express rider?

Is it possible to avoid copying time and fees by sending electronic copies of the emails?

Best,
Shawn

Davis's tone then shifts from deliberately unhelpful to "I'm in charge here" dismissiveness.

Dear Sir,

I have responded to and conveyed what all was needed to be able to process your request. I do not have the means to transfer electronic and the email dated 9-16-2015 is still my response. Once you have sent the fees as I had indicated in the email dated 9-16-2015, your request will be processed as timely as possible.

I think what Davis is trying to say is she doesn't have the "technical capability" needed to "transfer electronic." And I'm going to assume she's above asking for help. If not, then she's just trying to make Musgrave pay for inconveniencing her with an open records request.

Musgrave asks for clarification on the inability to "transfer electronic" and receives nothing more than Davis impatiently tapping her finger on the printout of her original response to his request.

Musgrave then tries to get some assistance on appealing her decision to ramp up fees by felling a forest. Davis basically tells him he's screwed.

Dear Mr. Musgrave,

Your consideration regarding my response contrary to the spirit and letter of the KRS in estimating cost to your KORA request is not substantiated. The Attorney General Opinion from 2012 states 'the agency may, but is not required to, provide the requested format. The agency may then recover staff costs as well as any actual costs it incurs.'

I was trying to be fair in this request, while I do retain the right, through the Kentucky Open Records Law, to refuse your request all together, as it is an 'overly burdensome request'. Again, I will refer to the email dated 09-16-2015 for the cost of this request and upon receipt, your request will be processed in as timely manner as possible.

Nah. There's nothing "fair" about her response. It's now clear she's taken this open records request up as Yet Another Personal Crusade in which Davis abuses her elected position to withhold for as long as legally possible something the law requires her to hand over.

Musgrave then tells Davis he will be filing a complaint with the District Attorney over the excessive fees, as is provided for in Kentucky's open records laws. No dice.

Mr. Musgrave,

I have tried to be obliging to you and your request, however, if you feel I have not, you may do as you have stated in your email.

With that being said, if you feel reviewing and printing or transmitting well over 6000 emails is not a burdensome task, I am sorry. I have said many times prior and will say again in this email, I will be happy to complete your request, for the fees as discussed in the email dated 09-16-2015…

Musgrave says, "Let me help you lower the cost."

Ms. Davis -

That is a substantial number of emails, admittedly. I am attempting to lower your manhour requirement (as well as the cost) by requesting that emails be sent in electronic format, rather than printed. As printing comprises approximately half of your fee estimate, eliminating the print requirement would cut down the cost considerably.)

And with that, Davis is done discussing this with Musgrave. After two more attempts to have the unresolved issue (the unnecessary printing of electronic mail) cleared up -- and receiving no response from Kim Davis -- Musgrave utilizes a communication Davis might be more familiar with.

Ms. Davis -

As you've stopped replying to emails regarding my two open requests — both of which you initially acknowledged by email — I am reaching out by fax.

Apparently Davis still answers faxes. But her answer is the same obstinate recital of her first estimate and a brief reminder that nothing will be returned to him until payment is made. A little more back-and-forth confirms Davis believes she's entirely in the right and that Musgrave's threatened appeal will go nowhere.

Because it appears nothing will move forward without payment and/or the District Attorney weighing in on the massive tree cull Davis has planned, Musgrave is crowdfunding the release of these emails over at MuckRock. The final total appears to be nearly $1,400. For 6000 emails that could easily fit on a single $10 USB stick/$1 blank DVD.

What makes Davis' response even worse is that when the emails finally arrive in paper format, Musgrave will have to spend his own time converting them back to electronic format. It's yet another case where government employees begrudgingly follow the letter of the law while steamrolling right over its spirit.

Filed Under: charges, email, fees, foia, kentucky, kim davis, public records, shawn musgrave

ACLU, Lawyers Group Sue Cali Police Department Over $3,000 Fee Demand For Body Cam Footage

from the fingers-crossed-for-a-fee-shift dept

Once again, a government agency is attempting to price itself out of the public records market. The Hayward (CA) police department told the National Lawyers Guild that it needed to come up with $3,000 before it would turn over requested body camera footage.

In response to this gouging, the ACLU, in conjunction with the NLG, has opened up its wallet legal fund.

The suit alleges that, on Jan. 27, 2015, the NLG, San Francisco Bay Area Chapter, submitted a PRA request to Hayward PD for body worn camera footage from Hayward police officers who participated in crowd control during demonstrations in December 2014 to protest the refusal of grand juries to indict police officers involved in the deaths of two African American men, Michael Brown and Eric Garner. A number of protestors were injured by the police during these demonstrations. On May 15, 2015, Hayward PD informed the NLG that they would have to pay the department $2,938.58 in order to receive the first round of body camera footage requested. The NLG paid this amount under protest, and faces similar cost bills for the additional video footage requested.

The ACLU points out that the PD's demand for nearly $3,000 in fees violates several parts of California's public records law.

Information that is in an electronic format must be made available in an electronic format when requested by any person and, when applicable, must comply with the following: (1) The agency shall make the information available in any electronic format in which it holds the information. (2) The agency shall provide a copy of the electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies.

The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format. Gov. Code § 6253.9(a).

An agency is only permitted to impose additional charges when the request would require data compilation, extraction, or programming to produce the record. Gov. Code § 6253.9(b).

The body camera video requested do not require compilation, extraction or programming.

Respondents have failed to make the records "promptly available" as required by Government Code § 6253(b).

Respondents require payment of unauthorized and excessive charges for the duplication and production of police body camera and hand held videos as a condition of producing such records to members of the public.

Furthermore, the ACLU notes that a failure to rein in the PD's demands for excessive fees will not only dissuade others from exercising their right to examine public records, but encourage the department to continue levying unlawful fees.

I do think the PD can legitimately argue some form of compilation and extraction has been performed to isolate the video footage requested, but it offered no explanation for the amount it charged for processing, much less what steps it took that resulted in this unknown number of billable hours.

Using fees to stymie requesters is one of the easiest ways for government agencies to maintain the opacity they're used to operating under. Even when the demand for excessive fees is accompanied by an explanation of the "costs" the agency is looking to recoup, the breakdowns seem to raise just as many questions as they answer. Whether it's the insistence on charging page duplication fees for responses served electronically, or somehow claiming a record system is impervious to existing search methods, the government still holds most of the cards when it comes to keeping the public separated from public records.

Filed Under: body cams, fees, foia, hayward, hayward pd, police
Companies: aclu, national lawyers guild

Comcast Users Now Need To Pay A $30 Premium If They Want To Avoid Usage Caps

from the screw-you dept

Comcast has slowly but surely been expanding the company's usage cap trials since around 2012, largely focusing them on less competitive markets where annoyed users can't vote with their wallets. In these seventeen (and counting) trial markets, Comcast broadband customers face a monthly usage cap of 300 gigabytes. After that, users need to shell out $10 for each additional 50 gigabytes of data consumed. The trials have expanded slowly but surely in the hopes of minimizing user backlash. Basically, Comcast is the hot water slowly coming to a boil, and you're the frog.

It appears that Comcast has now added a new wrinkle to the mix, and has started charging these trial users an extra $30 if they want to bypass usage caps. The company's FAQ for the new option tries to argue that the change is being made to provide consumers with greater "choice and flexibility":

The Unlimited Data Option provides additional choice and flexibility for our customers who may make heavier use of the Internet. Enrollment is optional. The Unlimited Data Option costs the current additional fee of $30 per calendar month, regardless of actual data usage. The 300 GB plan will not apply to customers who enroll in the Unlimited Data Option.

Yeah, that's bullshit. Back in 2012, users in these trial markets used to get uncapped Comcast broadband service as a matter of course. They now get to pay $30 more a month for the honor of avoiding Comcast's totally arbitrary and unnecessary usage restrictions. And it's all thanks, of course, to the painful lack of competition in most Comcast markets. While this "unlimited" option is currently only being tested in the Florida cap markets, Comcast has made it clear for years it hopes to impose this kind of punitive pricing system in all markets.

You'll recall the cable industry used to claim usage caps on fixed-line networks were necessary due to congestion (fear the Exaflood!). But as bandwidth costs dropped and intelligent network gear offered far more sophisticated ways of managing network load, the cable industry finally admitted that congestion had nothing to do with it. And while the cable industry now tries to argue that usage caps are necessary due to "fairness," they're really about one thing and one thing only: taking advantage of limited competition and protecting legacy TV revenues from Internet video.

If you peruse the Comcast usage cap FAQ you'll notice that Comcast doesn't even really bother with an explanation or justification as to why the caps are necessary, since even the nation's least-liked company knows any defense of this position is futile. This is about as close as Comcast gets to delivering a coherent explanation as to why these limits were imposed:

As the marketplace and technology change, we do too. We evaluate customer data usage, and a variety of other factors, and make adjustments accordingly. Over the last several years, we have periodically reviewed various plans, and recently we have been analyzing the market and our process through various data usage plan trials.

So yeah, we're not a massive incumbent telecom exploiting uncompetitive markets and lazy regulators, we're just experimentin' and changin' and what have you! Comcast has made it abundantly clear that it plans to keep expanding these usage caps (and charging you to avoid them) until either the competition fairy somehow materializes better broadband options out of the ether, or regulators wake the hell up and realize that usage caps on fixed-line networks are a predatory assault on captive customers, an affront to innovation, and an aggressive abuse of monopoly power.

Filed Under: broadband, competition, data cap, fees, usage cap
Companies: comcast

PRS To Increase Members' Fees To Fund Legal Expedition Against TV Station

from the for-the-artists dept

It's been a while since we last checked in on PRS, a collection group in the UK that generally goes around acting as a kind of collection of prosthetic assbags for the musical artists it purports to represent. Actions like demanding money from a grocery store employee who happened to sing a song at work, demanding money from a woman who played some music for her horses, and demanding payment from small businesses it calls up on the off chance it might hear some music being played far off in the background are all taken under the theory that PRS has the best interests of the musical artists at heart. The problem with this theory is two-fold. First, it appears that, for a collection society, PRS is very terrible at collecting money, seeing as it has come to light that it doesn't have enough money for a copyright tribunal hearing over licensing with a television station. Second, in order to support that legal effort, PRS has decided to do what it always decides to do: slurp just a little bit more money away from the artists it represents.

When rights owners choose to licence as one through a collecting society, all deal making is subject to extra rules and regulations in order to satisfy competition law. If the society and a licensee cannot reach an agreement, the matter can be taken to a special court, which in the UK is called copyright tribunal. Which is what ITV is now doing having failed to agree a new deal with PRS covering broadcasts from the start of this year.

In the letter to its members, posted by the Music Law Updates website, the PRS executive board says that: “We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used."

And, with that supposed goal in mind, PRS announces that it will increase admin fees by 1 percent on all revenue it generates from music on television. Not just artists whose music is played on ITV, but all music on television. For those of you keeping score at home, that means a collection society that bills itself as a protector of artists' rights has unilaterally announced an increase in its fees because it actually has to do that job, and it's collecting those increased fees from members who do not stand to directly benefit from this legal action. That, my friends, is quite an operation they have going over there at PRS.

“The Executive Board has approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues”.

Yes, we're taking more money from you artists who will not be affected by this legal action over this license with this television station because it's extremely important to you, because we said it is. And, keep in mind, we alone have your best interests at heart, which is why we're taking more of your money.

It's always been this way. Collection societies serve as skimming operations, gently whisking away some percentage of revenue from artists under the guise of good intentions. But what else could you expect? Given how PRS treats the general public, why would artists expect to be treated any better?

Filed Under: collection society, fees, lawsuits, licensing, money, prs, uk
Companies: prs

San Franciscans: Please Join Carl Malamud's Campaign To Help Free Up Court Documents

from the join-now dept

For many years, we've discussed various Carl Malamud projects to help make government information and documents more widely available (especially ones that are locked up for no good reason). One particular target of his is PACER, the court's electronic document system that is ridiculously cumbersome to use and costs an insane amount to use for even pretty mundane tasks. Earlier this year, we wrote about his National Day of PACER Protest, designed to be held on May 1st (this Friday). At the time, we suggested everyone sign up for a new PACER account (because, as if to demonstrate how stupid the PACER system is, you have to wait for the system to snail mail you your username and password before you can start using your account) to download a few documents on May 1st (PACER waives your fees if you download less than $15 in fees per quarter).

However, as we noted, this was just part of a three-pronged approach to convincing the courts to free up the PACER system. Another part was reaching out to judges to exempt certain courts and certain documents from PACER's charges. As part of that, Malamud is trying to send judges some beautiful postcards, and he's asking for people to help him do so. Here are just two of the postcards: If you're in San Francisco this Friday, May 1st, please try to make your way to the Internet Archive's headquarters at 300 Funston Avenue, where you can send a post card (or two, or six, or 60) to Chief Judge Sideny Thomas of the Ninth Circuit appeals court, asking him to free up access to PACER for several of the courts in the 9th circuit.

I am writing to you for help. If you are in San Francisco on Friday, May 1, from 8 AM to 5 PM, I'm hoping you can stop by the Internet Archive at 300 Funston Avenue.

May 1 is Law Day, and I'm asking people to come in and write a brief postcard about why you think that access to PACER is important. More specifically, you'll be writing a postcard to Chief Judge Thomas of the Ninth Circuit of the U.S. Court of Appeals in support of my request that the Court grant us free access to PACER for several courts in the Ninth Circuit. It would be a really big deal if the Court said yes, we're trying to show public support in a way the judges can relate to.

You can also go and send your postcard directly if you can't make it to the Internet Archive:

Clerk of the Court
Attn: Docket 15-80056
United States Courts of Appeals
James Browning Courthouse
95 7th Street
San Francisco, CA 94103

This is a worthwhile and fun project. If you're in San Francisco, please try to stop by. If you're not, please consider sending your own postcard.

Filed Under: 9th circuit, carl malamud, fees, freedom, pacer

Voltage Pictures Has To Pay $22k To Canadian ISP If It Wants Names For Its Shakedown Scheme

from the still-is-problematic dept

Voltage Pictures is the fairly successful movie studio that has a side business as a copyright troll -- sending angry threat letters demanding cash based on flimsy evidence about people who may have downloaded its films. While it originally focused on the US, more recently it has been trolling in other countries as well. When Canada changed its copyright laws a few years ago, Voltage immediately saw it as an opportunity to expand its trolling operations. It initially targeted Canadian ISP TekSavvy which refused to cough up names, but a year ago, the court ordered Teksavvy to cough up names -- but also said that it would review Voltage's shakedown letters to make sure they didn't overstate the company's position.

There was one remaining issue however: how much Voltage needed to pay TekSavvy for the privilege of getting the names. TekSavvy asked for about $350,000 to reveal about 2,000 names, while Voltage said it should only have to pay $884. The court has now given neither party exactly what it wants, saying that Voltage Pictures should pay $21,557.50 -- which works out to a little under $11 per user.

Just like this ruling didn't quite satisfy either Voltage or TekSavvy, it similarly is problematic for future copyright trolling situations on both sides. Michael Geist's discussion highlights the issues. For Voltage, at this price, and (importantly!) given the limitations of Canada's copyright laws on how much a copyright holder can get for infringement, the copyright trolling business might not be that profitable:

The big question now is whether Voltage will proceed with the case. Given their expense to date, they will likely pay the costs and obtain the names. However, they must be committed to going to court over the claims, since the court made it clear that merely sending threats would be viewed as copyright trolling for future claims. Yet with the cap on liability for non-commercial infringement, the further costs of litigating against individuals, the actual value of the works, and the need to obtain court approval on demand letters, it is hard to see how this is a business model that works. Indeed, that is what the court initial noted, stating that “damages against individual subscribers even on a generous consideration of the Copyright Act damage provisions may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber.”

But, on the flip side, the ruling is problematic in that it refused to let TekSavvy recover the costs associated with defending its users' privacy. The message, then, to ISPs is that it may be too costly to fight for users' privacy rights:

The decision unpacks all the cost claims, but the key finding was that costs related to the initial motion over whether there should be disclosure of subscriber information was separate from the costs of abiding by the order the court ultimately issued. The motion judge did not address costs at the time and the court now says it is too late to address them.

That approach seemingly does not reflect how the parties viewed the case given that this was an unprecedented action. With TekSavvy now bearing all of those motion costs (in addition to costs associated with informing customers), the decision sends a warning signal to ISPs that getting involved in these cases can lead to significant costs that won’t be recouped. That is a bad message for privacy.

Meanwhile, this just acts as yet another reminder as to why no one should bother watching movies produced by Voltage Pictures.

Filed Under: canada, copyright, copyright trolling, fees
Companies: teksavvy, voltage pictures

Apartment Complex Claims Copyright Of Tenants' Reviews And Photos, Charges $10k Fee For Criticism

from the thin-skin-still-surprisingly-expensive dept

If you wanted more bad reviews than you could shake a legally-unenforceable clause at, you'd do this:

[Windermere Cay's] Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all "negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog." It also says any "breach" of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters' copyrights to the owner—not just the copyright on the negative review, but "any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments." Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

The Florida apartment complex claims the stupid clause is needed to prevent "unjust and defamatory reviews." It makes this claim -- not in a statement given to Ars Technica (which was tipped off by a resident) -- but in the introductory paragraph of the Addendum. From there it gets worse. Doing any of the following triggers a $10,000 fine, with $5,000 added on for each additional "infraction."

This means that Applicant shall not post negative commentary or reviews on Yelp!, Apartment Ratings, Facebook, or any other website or Internet-based publication or blog. Applicant agrees that Owner shall make the determination of whether such commentary is harmful in Owner's sole discretion, and Applicant agrees to abide by Owner' determination as to whether such commentary is harmful.

Then come the copyright demands.

Additionally, each Applicant hereby assigns and transfers to Owner any and all rights, including all rights of copyright as set forth in the United States Copyright Act, in any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments. This means that if an Applicant creates an online posting on a website regarding the Owner, the Unit, the property, or the apartments, the Owner will have the right to notify the website to take down any such online posting pursuant to the Digital Millennium Copyright Act.

Of course, when confronted by Ars about the Addendum, the property managers claimed this was all someone else's fault.

Asked about the Social Media Addendum by Ars, Windermere Cay's property manager sent this response via e-mail: "This addendum was put in place by a previous general partner for the community following a series of false reviews. The current general partner and property management do not support the continued use of this addendum and have voided it for all residents."

I would imagine the support was removed and addendum voided shortly after Ars publicized it, and not a moment before. According to Ars, the resident who contacted the site was asked to sign this suddenly-unsupported addendum only "days before." But Windermere Cay's management now very likely regrets ever including it in the first place. Like so many others before it, Windermere Cay is learning that attempting to preemptively shut down criticism with bogus clauses and high fees almost always results in more criticism. Its Yelp page is swiftly filling up with negative reviews and -- like every other emotionally-charged incident on the internet, has already achieved Godwin.


Obviously, there are better ways to handle allegedly defamatory reviews. A $10,000 fine and a preemptive usurpation of tenants' copyright isn't one of them.

[And neither is this bizarre Craigslist ad from another, unrelated rental property -- which makes vague claims about "defamation" while shouting "LAWSUIT LAWSUIT LAWSUIT" across the ether.]


As multiple entities have learned over the years, you can't stop criticism on the internet. You can only hope to contain it. Legal threats and punitive fines tend to blow the walls right off the containment scheme. What should be handled with exceptional customer service and the rare lawsuit (for truly defamatory statements) is instead turned over to hamfisted legalese and intimidating dollar amounts -- both of which make things worse for the entities they're ostensibly in place to protect.

Filed Under: apartment complex, apartment ratings, censorship, copyright, fees, florida, gag clause, reviews, social media
Companies: windmere cay

100 Million Pennies For Your Thoughts? DEA Hands MuckRock A $1.4 Million Estimate For Responsive Documents

from the one-agency's-pocket-change-is-another-entity's-small-fortune dept

The EFF recently kicked off a contest for the "most outrageous response to a Freedom of Information Act request" and we already have a frontrunner for the first inaugural "Foilie." MuckRock's loose confederation of FOIA rabblerousers has been hit with a $1.4 million price tag for John Dyer's request for documents related to the "localization and capture" of Mexican drug lord "El Chapo." (Or Joaquin Guzman, as he was presumably known to his mom.)

The price tag for the requested documents is almost absurdly high. Almost. There are some mitigating factors that might keep this request from snagging the coveted "Foilie." For one, there's a whole lot of responsive documents.

In fairness, the request is quite broad in scope, and the estimated 13,051 case files would create considerable workload.

But on the other hand, the estimate seems to have been pulled out of thin air, rather than based on any actual calculations.

But assuming that $200,000 of that fee came from photocopying (which would put the total number of pages at two million), that would put the time estimate at over 40,000 hours, or 1785 days. That's almost five years of constant work without breaks.

And while $1.4 million may be pocket change for an agency with a budget in the low billions, it's a much bigger number than MuckRock's system is built to handle. Attempting to punch this estimated total into the "Cost" field returned a "What is this? A phone number??!?" error.


Naturally, the DEA has denied MuckRock's requested fee waiver, citing a whole page worth of reasons, but really mainly because there's no way it would kick 13,000 documents loose without collecting a substantial amount from the requester. On the other hand, this sky-high fee runs counter to the intended purpose of the Freedom of Information laws: to "free information." That doesn't mean it should necessarily be "free," but it does mean that agencies are supposed to do their best to ensure the public isn't priced out of accessing information.

This request will have to be narrowed considerably if MuckRock hopes to obtain anything on this subject from the DEA. While it does have crowdfunding options, the chances of donors putting together over a million dollars seems unlikely. And the DEA itself could use some guidance on putting together fee estimates, seeing as some simple math exposes how its $1.4 million quote is completely unmoored from reality.

Filed Under: costs, dea, el chapo, fees, foia, joaquin guzman
Companies: muckrock

New Michigan FOIA Caps Per Page Fees, Drops Costs Further If Agencies Miss Response Deadlines

from the not-perfect-but-still-an-improvement dept

If all goes according to plan, this sort of thing won't be happening in Michigan anymore.

It's not at all clear if the police in Michigan are using the full extent of these [cellphone data-slurping] tools, and that's what the ACLU was curious about. So, it filed a Freedom of Information Act request on the matter... and was told that it would cost $544,680 to get that information. That doesn't sound like "freedom" of information, now does it?

A new state FOIA law [pdf link], signed recently by Governor Rick Snyder (and shepherded through the 2-year process by then-State Rep., now Senator Mike Shirkey), puts a limit on how much government agencies can charge to fulfill requests.

Public records will become cheaper and easier to access under changes to Michigan's Freedom of Information Act.

Government agencies will not be allowed to charge more than 10 cents per page for copies of public records; they can face increased fines for delaying responses, and people seeking the records now can sue if they consider the fees to be exorbitant.

This capped per-page amount should prevent entities like the ACLU being charged a half-million dollars for a records request. Not to single out the Michigan police, but it seems to be one government agency that treats FOIA requests like get-rich-quick schemes.

Case in point is the corruption scandal involving Speaker Jase Bolger (R – Marshall) and Rep. Roy Schmidt (R – Grand Rapids).

The police report was some 2,000 pages of text messages, bank statements, and interviews surrounding the Speaker’s election rigging scheme in Grand Rapids, and the Michigan State Police Post in Ionia told anyone who wanted a copy of that report to pony up $1,896.30, including $73.83 in hourly compensation for a detective to pull the records.

This cap would turn $1800 into about $20.00. This isn't going to sit well with government agencies who have used high fees to reduce their transparency. Expect those to address the "problem" by chalking up more hourly fees to make up for the "lost revenue." This, too, is addressed in the law's language, which forbids the charging of "arbitrary or capricious fees." But at the end of it all, there's nothing in the punishments section that will actually deter agencies from doing exactly that.

The law allows requesters who believe they are being overcharged for records to sue and ask a court to lower the fee. If the court concludes the public body arbitrarily and capriciously charged an unreasonable fee, the court must assess $1,000 in punitive damages.

The new law also increases punitive damages from $500 to $2,000 on public bodies that arbitrarily and capriciously break the law by refusing or delaying the release of public records.

It also requires courts to fine public bodies $2,500 to $7,500 for willfully and intentionally failing to follow the law. The fines are paid to the state.

When the state collects a fine from a state agency, it's little more than money being passed back and forth under the disapproving glare of an overseer. In some cases, the money may transfer from a city to the state, but in no case will it ever pass from the person authorizing the forbidden behavior to the taxpayers. This isn't even a hand slap. It barely rises to the level of a disappointed sigh.

On the other hand, it does work out a little better for the citizens making the requests. If the court finds in the requester's favor, they may be awarded damages. On top of that, the law adds an additional requirement tied to agencies' pockets that should expedite request fulfillment.

If a government misses a deadline for responding to a request, it must discount the fees charged by 5% for each day the response is late. The maximum discount is 50%.

It looks pretty good on paper, but the implementation may not be as smooth. Without a doubt, any request that makes its way into the court system can expect several rounds of challenges and appeals. The same goes for any agency's stalling tactics. While this law does apply a much-needed cap, it still leaves room for abuse and its deterrents will do little to stop arbitrary fees and long, expensive court battles -- the latter of which use taxpayer funds to defend the withholding of taxpayer-funded documents from taxpayers.

Filed Under: fees, foia, michigan