The Governor Who Thinks Examining HTML Is Criminal Hacking Is Now Working To Make Missouri's Public Records Laws Worse

from the thank-you-for-your-self-serving dept

Missouri Governor Mike Parson is perhaps best known these days for trying to convert a right-click menu option into criminal hacking with his relentless (and relentlessly uninformed) desire to turn the people who exposed a security flaw in the state's Department of Education website into nefarious criminals.

Governor Parson seems to believe intimidation is better than accountability. Whatever can be used to deter normal people from exposing the shortcomings of better people (i.e., government employees) is fair game. For years, the state's public records law have served this same purpose: increasing the distance between the state's government and the lowly people who have the misfortune of living in this state.

In 2016, the state's laws were used to justify something that looked a whole lot like extortion. Non-profit group Reclaim the Records asked the state for birth and death records dating back to 1910. To be sure, this was a big ask. But it wasn't nearly as big as the state agency portrayed it. According to the state's Department of Health and Senior Services, compiling these records for release would involve more than 23,000 hours of labor at $42.50 an hour, resulting in a $1.5 million bill for services rendered.

This wasn't acceptable to Reclaim the Records, which chose to hire a lawyer rather than issue a $1.5 million check to the Missouri government. Once the group lawyered up, the DHSS changed tack, informing Reclaim the Records it simply wouldn't be releasing the data at all. It became apparent the agency was only interested in profiting from information it was required to collect and compile. Any third-party with enough money could buy this data from the DHSS. But public records requesters were being asked to pay full retail plus a sizable markup for information the agency was obligated to turn over to them.

A few years later, the transparency rating of the state and its "sunshine law" took another hit when the state's attorney general arrived in court to argue the government had a First Amendment right to withhold records. The AG deliberately conflated rights afforded to residents (the protection that allows them to make complaints about government officials without fear of retaliation) with the state government's nonexistent right to withhold records under the First Amendment.

With the state governor and his office undoubtedly facing hundreds of public records requests related to his inexplicable decision to treat responsible reporting of security flaws as criminal hacking, the governor's office is backing (and directing) efforts that will make it more difficult for public records requesters to obtain documents and data from government agencies.

Amending Missouri’s open records law to permit government agencies to withhold more information from the public — and charge more for any records that are turned over — is among Gov. Mike Parson’s priorities for the 2022 legislative session.

The changes, which were outlined in a presentation to Parson’s cabinet that was obtained by The Independent through an open records request, include a proposal to allow government agencies to charge fees for the time attorneys spend reviewing records requested by the public.

Such a change would reverse a recent Missouri Supreme Court ruling against Parson’s office that found attorney review time was not “research time” under the Sunshine Law and thus could not be charged.

Governor Parson wants to deter requests, which lends itself to the operation of a more-opaque government. Fees are a big part of the amendment. But it also increases the number of records state agencies can withhold. State Rep Bruce DeGroot is running interference for the governor, admitting in earlier statements that the governor directly approached him with suggestions on how to amend the law.

If the law passes, requests will become more expensive. They will also be less likely to be fulfilled.

DeGroot’s bill also redefines what is considered a meeting and makes it easier for agencies to destroy public records.

“It actually makes the Sunshine Law significantly more complex. It creates a lot more reasons that an attorney might find to treat records as closed,” said Dave Roland, director of litigation for the Freedom Center of Missouri, a libertarian nonprofit that promotes government transparency. And that, in turn, could increase the number of hours government attorneys spend reviewing records, driving up the cost.

The governor and his supporters want to make public records a pay-to-play game. Adding fee increases to release restrictions shifts a lot of power back to the state government, diminishing the power of residents to inform themselves about their government's activities or to attempt to hold them accountable for misdeeds by using their own words and actions against them. The state government has no reason to do this other than the obvious one: to insulate it from the limited power of the governed. But the government gets to make the rules and, without the presence of enough legislators that still feel obliged to serve the public, the government will probably get its way.

Filed Under: foia, freedom of information, mike parson, missouri, secrecy, transparency

UK Tribunal To Decide Whether Gov't Agencies Can Continue To Pretend There's A Residency Requirement For FOI Requests

from the because-there-isn't dept

The UK's Freedom of Information law is pretty straightforward when it comes to residency requirements. There aren't any.

Anyone can make a freedom of information request – they do not have to be UK citizens, or resident in the UK. Freedom of information requests can also be made by organisations, for example a newspaper, a campaign group, or a company.

And yet, some UK government agencies have decided to read a residency requirement into a law that doesn't contain one. As Owen Bowcott reports for The Guardian, these seemingly illegal non-responses to requests are about to be tested in court.

A combined hearing involving the Home Office, Metropolitan police, the Information Commissioner’s Office (ICO) and 13 separate cases is to be held at an information tribunal in London.

At issue is whether applicants overseas are entitled to a response when submitting freedom of information requests to UK government departments and agencies.

Nothing in the UK's Freedom of Information law appears to institute a residency requirement for FOI requesters. Nor does it hint at territorial limitations that could allow agencies to withhold documents from certain requesters. But the agencies handling these 13 cases seem to feel there is a residency requirement and they appear to be applying this novel interpretation to screw with requesters they'd rather not respond to.

One set of requests deals with the UK's government's involvement with attempts to extradite Julian Assange for prosecution.

One of the blocked cases is an appeal by the Italian journalist Stefania Maurizi, who works for daily newspaper Il Fatto Quotidiano and writes about WikiLeaks.

She has been pursuing information about how the Crown Prosecution Service dealt with its Swedish counterpart during initial attempts to extradite Assange to Sweden.

So, it appears that at least one of the 13 cases is about documents being withheld because the agency doesn't want to release them, not because there's a genuine question about whether the agency is obligated to respond to non-UK residents. Meanwhile, the government says it's going to continue following the law… by not following the law in these 13 cases -- at least until the tribunal says otherwise.

Filed Under: freedom of information, residency, uk

German Government's Bullying Of FOI Group Provides A Warning Of How EU's New Upload Filters Will Be Used For Censorship

from the making-life-for-whistleblowers-even-harder dept

One of the many concerns about the upload filters of the EU's Copyright Directive is that they could lead to censorship, even if that is not the intention. The problem is that once a filtering mechanism is in place to block unauthorized copies of materials, it is very hard to stop its scope being widened beyond copyright infringement. As it happens, the German government has just provided a good example of the kind of abuse that is likely to become a commonplace.

FragDenStaat -- literally "ask the State" -- is a German freedom of information (FOI) organization. It obtained and published a six-page report about the herbicide glyphosate. The document was written by the Federal Institute for Risk Assessment, a publicly-funded body that provides scientific advice to Germany's federal government on issues relating to things like food, product, and chemical safety, as well as consumer health protection. Even though the report was paid for by the German public, obtained legally -- and can still be requested by anyone -- FragDenStaat is not allowed to distribute it. The Regional Court in Cologne has ruled that would be an infringement of the German State's copyright, and ordered it to be taken down. FragDenStaat says it will appeal -- to the Court of Justice of the European Union, if necessary -- and comments:

The federal government abuses copyright law to prevent the publication of public interest documents. This is possible because German copyright law is hopelessly outdated. We believe that copyright law should ensure that tax-financed documents such as the Glyphosat report may be used freely. But in contrast, the German government wants to tighten copyright law further, which will further reduce the amount of information the public receives about important topics like this.

Leaving aside the issue that all such reports funded by the public should by freely available unless there are very good reasons to withhold them -- not the case here -- there is the particularly troubling aspect of this bullying of FragDenStaat by the German government. At the moment, there is little to stop copies of this document being requested, then uploaded and shared around the Internet. But once the EU Copyright Directive's upload filters have been installed, it will be easy for the German government to require sites to block these attempts. The fact that the authorities were willing to waste money taking FragDenStaat to court over a six-page document suggests they won't hesitate for a second to use upload filters to block sharing.

It won't just be governments. It is inevitable that leaked documents showing evidence of wrong-doing by companies will be blocked on all the major sites once upload filters are available. No court order is required, so it will become the first thing companies trying to hide their dirty washing will do. Upload filters will not only cause legitimate material produced by Internet users to be blocked by over-cautious online platforms, it will also make life even harder for whistleblowers to expose the truth about corporate crimes and misdeeds. How convenient.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright directive, eu, europe, filtering, freedom of information, germany

NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

Filed Under: foil, freedom of information, glomar, nypd, transparency

If You Want The Government To Hand Over Documents, You Might Want To Retain A Lawyer

from the get-busy-suing-or-get-busy-waiting dept

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.

As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.

If you really want the government to turn over documents, you have two choices: lawyer up or add your pending FOIA requests to your will. That is the sad reality of the situation, as C.J. Ciaramella of Reason points out.

If you don't have the money to lawyer up, you'll have to content yourself with waiting months, and often years, for documents. The average time to receive a processed FOIA request from the State Department in fiscal year 2017 was 652 days, for example. The average time to receive a response to an administrative appeal was 503 days.

And that's just the stats for one agency. The FOIA Project has compiled the stats for this year's FOIA requests and found there are more requests being filed than ever before, leading to the inevitable outcome of more FOIA lawsuits being filed than ever before.

The annual rate of filed lawsuits has more than doubled under President Trump. So far this year, 860 lawsuits have been filed, compared to 402 filed in 2016. This presidency has triggered renewed interest in the FOIA process, resulting in waves of requests hitting agencies like the DOJ and DHS, as well as agencies (EPA, HHS) whose top officials have been caught behaving badly.

Rather than greet the demand with increased supply, government agencies have stayed the course they've held for the last 50 years. While there have been some welcome introductions like online filing portals and release-to-all policies for documents with significant public interest, the rate of incoming requests continues to exceed the capacity to fulfill them. But no money will be thrown to FOIA response teams. This is a part of the government that the government tends to feel can remain underserved forever.

If you want to know how bad it is, the FOIA Project has a set of data tools that allow you to sort the data to see who's screwing requesters most often, based on the number of times they've been taken to court. (Unsurprisingly, the FBI has been sued most often, including this recent filing from Buzzfeed's Jason Leopold over documents related to the agency's investigation of sexual assault complaints against Supreme Court Justice Brett Kavanaugh.)

If there's any bright side to this, it's that the apparent need to lawyer up when seeking documents is no longer (mostly) a corporate playground. Having unlimited access to in-house lawyers has turned the FOIA process into a research tool for corporations seeking an edge on competitors or simply fishing for info other companies might want to keep secret, but the government is more than happy to dispense to whoever asks.

In FY 2018, nonprofits comprised 56 percent of all FOIA lawsuits brought against the government. Nonprofits became increasingly active under the Obama Administration, but emerged as the majority of all FOIA lawsuit plaintiffs after President Trump took office. In FY 2016, nonprofit filers comprised just 36 percent of plaintiffs, whereas they comprised 50 percent or more in FY 2017 and FY 2018 (see previous report, “FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump”). Suits filed by reporters and news organizations also have been increasing.

The Freedom of Information Act is limping towards its sixth decade of existence, better than nothing, but nothing near what it was imagined it would become. Reform efforts continue to fail, largely due to government agency interference and pressure. Five decades of this has turned the FOIA process into a battle of wills that almost always takes place in a federal courtroom. Despite this, more FOIA requests are being filed than ever -- perhaps a testament to the indomitable American spirit… or an almost-masochistic unwillingness to take "no" for an answer.

Filed Under: foia, freedom of information

Missouri Governor Sued Over His Office's Use Of Self-Destructing Communications

from the opacity-enthusiast-first,-public-servant-a-very-distant-second dept

Missouri governor Eric Greitens, along with his staff, are the targets of a recently-filed public records-related lawsuit [PDF]. Two St. Louis County attorneys are accusing the governor of dodging public records laws with his use of Confide, an app that deletes text messages once they're read and prevents users from saving, forwarding, printing, or taking screenshots of the messages.

The governor's use of the app flies in the face of the presumption of openness. The attorneys are hoping the court will shut down the use of Confide to discuss official state business. The governor has argued an injunction would constitute prior restraint.

In the brief filed Tuesday, Greitens’ attorneys argue that blocking use of the app is improper because it would prevent the governor and his staff from using Confide to send “purely personal, non-work-related messages.”

“Such an injunction also would run afoul of these employees’ First Amendment right to freedom of speech,” the governor’s attorneys said.

Certainly the use of Confide is no different than government employees discussing official business in conversations, either in person or by phone. The conversations occur and then vanish into the ether with no publicly-accessible paper trail to prove their existence. But the use of self-destructing text messages certainly invites government officials to "talk around" their constituents by preventing the creation of FOIA-able records.

There's no telling what's being discussed via Confide and that's kind of a problem. The governor claims no official business takes place within the app, but given his lack of candor about the subject, this claim is very difficult to believe.

First off, Greitens' office is still being investigated for its use of Confide. Reporters for the Kansas City Star uncovered this fact during early explorations of the new governor's penchant for secrecy. When asked about app use, Gov. Greitens refused to respond. A public records request seeking the date the app was installed on the governor and staffers' phones was greeted with this incredible response.

“As to Request No. 2, any responsive records would be considered closed … as the disclosure of this information would impair the Office of the Governor’s Security Division’s ability to protect the Governor and his staff, and the interest in non-disclosure outweighs the public interest in disclosure.”

The governor basically claimed allowing the public to learn what date the app had been installed would compromise the safety and security of the governor and his employees. This bizarre use of a security exemption followed the governor's spokesman stating clearly -- and incorrectly -- that no one in the office used the secretive messaging app.

This new wave of opacity has Greitens' name all over it. Once he took office, the clampdown on transparency began.

Members of his taxpayer-funded transition team were required to sign gag orders banning them from discussing their work publicly. His office continues to withhold emails from the transition, refusing to turn over emails from individuals who played key roles but who conducted public business using private email accounts.

He broke with tradition when he refused to disclose how much lobbyists and corporations donated to fund his inaugural festivities, and his use of private planes for official travel often leaves Missourians in the dark about who is picking up the tab.

[...]

When responding to requests for public records, the governor’s office often charges fees some argue are exorbitant, and the time it takes to turn over those records can stretch out for months.

Given the background, it's hard to believe the app is solely used to discuss personal matters. If it's being used to discuss official business, those conversations need to be moved to a platform that allows saving and retrieval of messages. Or, if the governor so desires, he can move all these conversations to the physical plane and speak directly to staffers and other government employees. If he feels his office deserves this level of secrecy, he should put a little more sweat/elbow grease into his opacity efforts. If there's truly nothing to hide, then there's nothing to fear from using normal, non-self-destructive communications channels.

Filed Under: confide, eric greitens, foia, freedom of information, missouri, self-destructing messages, transparency

FOIA Lawsuit Filed Over DOJ Data Complainant Is Pretty Sure Doesn't Even Exist

from the press-SEND-to-undermine-presidential-credibility dept

Benjamin Wittes of the Lawfare blog has filed a FOIA lawsuit against the DOJ, hoping to force the government to put its documents where the president's mouth is. [h/t Pwn All The Things]

Back in February, President Trump made the following assertion before a joint Congressional session:

“According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”

But what data? That's what Wittes is seeking. As he pointed out in April, it appears the president generated this assertion completely out of firing synapses and airborne vibrations.

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a Presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the President's claim. In other words, I believe the President was lying not merely about the underlying facts but about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.

Other authors at Lawfare examined the claim in detail, finding that when people extradited to America to face charges were excluded from the count, the ratio of foreign-born terrorism convicts dropped to 18-21% of the total -- not anywhere near a "vast majority."

Beyond that, there's likely zero data available to support Trump's claim. Wittes notes the DOJ doesn't actually track where convicts are born, and certainly doesn't do so when foreigners are booted from the country by immigration enforcement, only to be dragged back to face criminal charges.

Wittes filed a FOIA request for the numbers the DOJ supposedly "provided" to the president. So far, he's heard nothing back. His requests have been acknowledged but no further processing has been done, not even a determination as to whether he'd qualify for a fee waiver. Now, he's suing [PDF].

Wittes refers to this as the "friendliest lawsuit ever," given that it's not being fired off in hopes of liberating documents the DOJ would rather not part with, but instead to give the DOJ an opportunity to state -- on the record -- that it has none of the information Trump claimed was handed over to him. It would give the DOJ a way to contradict the president's claims without looking like it's intentionally undermining the president's assertions. Considered from this angle, it might be the sort of lawsuit the DOJ might welcome -- although if it was truly interested in disputing the president's statement, it might have chosen to provide Wittes with a more substantive response, rather than wait until it became a problem for the judiciary.

Filed Under: benjamin wittes, department of justice, donald trump, foia, freedom of information

Freedom Of Information Lawsuit Results In NYPD Agreeing To Follow FOI Law

from the lol-'law-enforcers' dept

If you need any more proof the NYPD hates transparency, you need look no further than Keegan Stephan's victory in a Freedom of Information Law (FOIL) lawsuit:

If you can't see the tweet, it says:

Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law

This is what we measure success with when it comes to FOIL and the NYPD: a victory is the department AGREEING TO FOLLOW THE LAW.

Stephan has been seeking information on the department's use of a sound cannon for crowd control. The NYPD, of course, had no interest in releasing these records. Central to the settlement is the department agreeing to accept FOI requests by email, something it's supposed to have been doing for more than a decade.

The man, Keegan Stephan, said in the suit that the department failed to justify withholding the records he requested and that a “policy and practice” not to accept or respond to Freedom of Information requests by email violated a 2006 provision of New York State law. Mr. Stephan also argued that by not allowing email requests, the police had increased “the time, effort, and expense involved” in obtaining records.

The department's settlement contains no admission of wrongdoing -- something common to government lawsuit settlements. This means it will accept zero responsibility for a decade-long run of FOI statute violations.

The "new" email request system will aid more New Yorkers in having their requests ignored by the NYPD. The NYPD's future use of email for FOI responses will ensure requesters are informed of denials in a much speedier fashion. The portal the NYPD is setting up on its website will provide instructions for requesters, as well as information on how to challenge denials and non-responses. If nothing else, the NYPD will be forced to follow the letter of the law a bit more closely, but it will take far more than a steady stream of FOI lawsuits for it to approach the law's spirit.

The NYPD has made a opacity a cottage industry. It has been dubbed the least responsive government agency in the US, worse than the CIA, FBI and NSA. It has developed an in-house classification system that allows pretty much anyone to designate almost any document "top secret" for almost any reason, and reached its nadir when it refused to release a copy of its FOIL response guidelines to a FOIL requester.

But this is an ugly victory -- one that should subject the department to a steady stream of ridicule. It takes a lawsuit to make a law enforcement agency follow the law. That's just depressing.

Filed Under: foia, freedom of information, new york, nypd, open records, transparency

Techdirt Podcast Episode 126: Talking Freedom Of Information With A 'FOIA Terrorist'

from the freedom-of-podcasting dept

We've made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a "FOIA terrorist" by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: foia, freedom of information, jason leopold, podcast

UK Home Secretary Wants Everyone's Metadata; But If You Ask For Hers, Gov't Says You're Being Vexatious

from the funny-how-that-works dept

Theresa May, the UK Home Secretary who seems like a comic book version of a government authoritarian, is leading the charge in the UK for its new Snooper's Charter, officially called the "Investigatory Powers Bill," that is filled with all kinds of nasty stuff for making it easier for the government to spy on everyone. Among the many problematic elements is the demand for basically everyone's metadata. May dismissed the concerns about this by saying it's nothing more than "an itemised phone bill." Given that, Member of Parliament Keith Vaz noted to May that people might be interested to see May's itemized phone bill.

Soon after that, we noted that UK resident Chris Gilmour sent in a FOIA request for May's metadata. Specifically, he asked for the following:

1) The date, time, and recipient of every email sent by the Home Secretary during October 2015.

2) The date, time, and sender of every email received by the Home Secretary during October 2015.

3) The date, time, and recipient of every internet telephony call (e.g. "Skype" call) made by the Home Secretary during October 2015.

4) The date, time, and sender of every internet telephony call (e.g. "Skype" call) received by the Home Secretary during October 2015.

5) The date, time, and domain address of every website visited by the Home Secretary during October 2015.

Not surprisingly, it appears he was not the only one to do so. UK newspaper The Independent sent in a FOIA request asking for:

... the web browser history of all web browsers on the Home Secretary Theresa May's GSI network account for the week beginning Monday 26 October. Feel free to redact any web addresses relating to security matters."

There may be other such requests as well -- but both of these requests got back the same basic response from the UK government. In both cases, the government rejected the requests, claiming they were "vexatious." Here's the response to Gilmour's:

We have considered your requests and we believe them to be vexatious. Section 14(1) of the Act provides that the Home Office is not obliged to comply with a request for information of this nature. We have decided that your request is vexatious because it places an unreasonable burden on the department, because it has adopted a scattergun approach and seems solely designed for the purpose of ‘fishing’ for information without any idea of what might be revealed.

The requests are similar in nature to a request the Home Office received in 2014 that the Information Commissioners Office (ICO) agreed was vexatious. The decision notice in question can be found at this link: https://search.ico.org.uk/ico/search/decisionnotice?keywords=FS50544833

Guidance issued by the ICO on vexatious requests can be found at this link: https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious- requests.pdf

It appears that The Independent got an identical response (word for word). The folks at The Independent seem reasonably annoyed by this.

While the Government is widening its own powers to access the information of citizens, it is watering down the public’s right to access the Government’s information.

Either way, there seems to be a legitimate question to ask Theresa May: if there's no big deal about having the government go through your metadata and it's "just like an itemised phone bill," then why is it so "vexatious" for the public to ask for May's metadata?

Filed Under: data retention, foia, freedom of information, home secretary, investigatory powers bill, ipbill, metadata, public records, snooper's charter, surveillance, theresa may, uk, vexatious