Judge Tells FBI To Explain Its Overly-Broad Use Of FOIA Exceptions

from the Occupy-J.E.-Hoover dept

As we recently covered, a judge had ordered the CIA to explain its ridiculous FOIA response tactics. The CIA had, with a straight face, first claimed it could ONLY produce hard copies of digital files from an internal security journal. Then, it said the only way it could create digital files was by printing out the files and re-scanning them. The judge noted in her order that Congress recognized government agencies would be reluctant to hand over documents to the public, which is why it directed agencies to make every reasonable effort to accommodate requests. This, of course, was not what the legislators had in mind when they crafted the Freedom of Information Act.

Now, it's the FBI being asked by a judge to explain its overuse of FOIA exemptions to withhold documents. This time, it's the (in)famous Ryan Shapiro suing our government for access to information. Shapiro is well-known by the FBI, which has attempted to shut down the prolific requester by simply refusing his FOIA requests. It justifies this violation of the FOIA by claiming (somewhat accurately) that Shapiro is utilizing a "mosaic" method to gain access to information the FBI clearly wants to keep hidden. The theory is that with enough overlapping requests, responses will turn up either different documents or inconsistent redactions, thus revealing potentially sensitive information.

Shapiro currently has six open FOIA-related lawsuits (five vs. the DOJ and one vs. the CIA). This one, originally filed in April of last year, centers on Occupy Houston-related FBI documents.

Specifically Shapiro asked for FBI records about "a potential plan to gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles..."

Shapiro said he wanted the records for his doctorate work, and that he intended to release urgent info about Occupy Houston to the public.

The FBI found 17 pages of pertinent records, gave Shapiro five of them, with some information redacted, and withheld 12.

The FBI has filed to dismiss, stating that it did a "thorough" search for responsive documents and released all non-exempt papers. But the judge didn't buy every argument the FBI made, questioning its use of an exemption that excludes "records or information compiled for law enforcement purposes." ("Law enforcement" being #2 on the FBI's To Do List [following "national security"] would seemingly make every document the FBI "compiles" exempt if given a broad enough reading.)

"(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.

Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."

Now, the FBI will need to prove to the judge that its exemption claim isn't overly broad, possibly in an in-camera session considering the claimed sensitivity of the withheld documents. But as This Anonymous Coward pointed out on Twitter, a better question might be why the FBI was so interested in protecting the banks from Occupy protestors, rather than investigating the assassination threats against Occupy leaders. Chances are, that question will go unanswered by the FBI, whether or not these documents are finally freed.

Filed Under: exemptions, fbi, foia, mosaic, redactions, ryan shapiro

Mosaic: The Publishing Of Science, And The Science Of Publishing

from the moral-rights dept

The UK-based Wellcome Trust is the second-largest non-governmental funder of medical research after the Bill & Melinda Gates Foundation. It was one of the main backers of the Human Genome Project, which pioneered the idea of open data by placing all its results in the public domain, and of open access. Recently, it began a new project exploring openness:

First there was open source software, given away for anybody to download, use and share without charge. Then there was open access publishing, the movement to make the results of scientific research freely available to read without paying journal subscription fees. Today, the Wellcome Trust is launching a fresh experiment in open information, this time in science journalism.

Mosaic, our new digital publication devoted to long-form features about the science of life, is not only free for anybody to read. Its content is also freely available for anybody else to republish or share through their own publications and platforms.

Of course, "freely available" can mean many things. Here's more about the license Mosaic will be published under:

when we were starting out on the development of Mosaic, one of the first principles we put in place was that the features we published should have a Creative Commons (CC) licence. We want as many people to be able to read our stories as possible, and so we’ll be publishing features on the Mosaic site and making it simple for others to take our content and re-use it.

While Creative Commons is well established in scholarly circles, its use in journalism is still relatively sparse. The investigative journalism newsroom Propublica, and The Conversation, which brings together professional editors and university experts, both publish under CC licences (do let us know if you know of other examples).

The license we’ve chosen for Mosaic is Creative Commons Attribution (CC-BY), which is the most open of the licences.

Well, arguably CC0 is more open -- it's akin to placing something in the public domain, with no restrictions whatsoever. Still, CC-BY is certainly an extremely generous license, allowing almost anything to be done with the articles, provided authorship is acknowledged. Of course, that could be problematic, as the Wellcome Trust recognizes:

Might adaptation, if done poorly, damage our reputation for quality and depth, or the author’s reputation? Might some adaptations distort the story? In the former case, the original, crafted version will always be on the Mosaic site, the licence allows us to insist that attribution requires a link back and and that the edited nature of an adapted or abridged piece must be signposted. In the latter case, the licence protects the author’s 'moral rights', which include the right not to have the work distorted, mutilated, modified or subjected to derogatory action which would be prejudicial to the author’s honour or reputation.

Although such "moral rights" are rarely invoked in the US, in Europe they are more important. However, as the Wellcome Trust itself points out, this is more of a theoretical problem than a real one:

it appears such cases [of distortion] are very few and far between and problems that do arise are usually due to miscommunication or misunderstanding. What is more, it is the nature of the internet that work published even under the most restrictive licences is often taken and adapted by others without any consent -- while often illegal, this is extremely difficult to police. So while it was good to think through potential issues, our conclusion was that we should offer our work in good faith. We trust others' editorial judgment.

That's both a good summary of the situation, and an eminently pragmatic solution. If only more publishers adopted it, instead of trying to stamp out every kind of unauthorized online use, however minor, and however disproportionate the effort required.

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Filed Under: knowledge, mosaic, open access, publishing, science
Companies: wellcome trust