Secret Service Sends FOIA Requester A Redacted Version Of A Public DOJ Press Release

from the spinning-secrets-out-of-public-web-pages dept

The government loves its secrets. It loves them so much it does stupid things to, say, "secure the nation..." or "protect the integrity of deliberative processes" or whatever the fuck. We should not trust the government's reasoning when it chooses to redact information from documents it releases to FOIA requesters. These assertions should always be challenged because the government's track record on redactions is objectively awful.

Here's the latest case-in-point: Emma Best -- someone the government feels is a "vexatious" FOIA filer -- just received a completely stupid set of redactions from the Secret Service. Best requested documents mentioning darknet market Hansa, which was shut down (along with Alpha Bay) following an investigation by US and Dutch law enforcement agencies.

The documents returned to Best contained redactions. This is unsurprising given the nature of the investigation. What's surprising is what the Secret Service decided to redact. As Best pointed out on Twitter, the Secret Service decided public press releases by the DOJ were too sensitive to be released to the general public.

Here's one of the redactions [PDF] the Secret Service applied to a press release that can be found unaltered and unedited at the Justice Department's publicly-accessible website:

And here's what the Secret Service excised, under the bullshit theory that a publicly-released press statement is somehow an "inter-agency or intra-agency memorandums or letter which would not be available by law to a party other than an agency in litigation with the agency."

“This is likely one of the most important criminal investigations of the year – taking down the largest dark net marketplace in history,” said Attorney General Jeff Sessions. “Make no mistake, the forces of law and justice face a new challenge from the criminals and transnational criminal organizations who think they can commit their crimes with impunity using the dark net. The dark net is not a place to hide. The Department will continue to find, arrest, prosecute, convict, and incarcerate criminals, drug traffickers and their enablers wherever they are. We will use every tool we have to stop criminals from exploiting vulnerable people and sending so many Americans to an early grave. I believe that because of this operation, the American people are safer – safer from the threat of identity fraud and malware, and safer from deadly drugs.”

Um. Is Jeff Sessions being Yezhoved by the Secret Service? Does the agency consider him to be enough of a persona non grata after his firing by Trump to be excised from the Secret Services' official recollection of this dark web takedown? This insane conspiracy theory I just made up makes as much sense as anything the Secret Service could offer in explanation for this redaction. The redaction removed nothing but the sort of swaggering statement Attorney Generals always make after a huge bust.

Needless to say, Emma Best is challenging the Secret Service's redactions. Pithily.

I am appealing the integrity of the redactions, as you withheld public press releases under b5, which is grossly inappropriate.

Yeah. That's an understatement. The Secret Service has no business redacting publicly-available info. Even if this was a clerical error, it's so bad it's insulting. And that's why you can't trust the government on things like this: when it's not being malicious, it's being stupid.

Filed Under: doj, foia, press release, redactions, secret service, transparency

Judge Alsup Slams Patent Troll For Basically Everything

from the don't-try-to-pull-a-fast-one-on-judge-alsup dept

Lots of folks probably remember Judge William Alsup from the Google/Oracle mess, in which he seemed to be one of the few reasonable people in the room, who actually took the time to understand the deeper technical issues. Alsup has quite a reputation for a number of other cases as well, and one thing that seems fairly clear is that you don't want to try to bullshit this judge who knows how to code on technical issues. You might recall in the Uber/Waymo fight, he also ordered both companies to teach him how LiDAR works and he made it clear that he wasn't messing around:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

That brings us to a more recent case, involving notorious patent troll Uniloc -- a company we've written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game "Mindcraft" (the trolls were in such a rush to sue, they didn't notice it was actually "Minecraft"), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn't given up any of this. The company keeps buying up more patents and suing lots of companies -- including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn't actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was "confidential."

It sounds like a situation not unlike the Righthaven situation from a few years ago, where the "real" holder of the patent (or, in Righthaven's case, the copyright) retained real ownership, but created a sham transfer whereby the suing company (in this case Uniloc) really only had the right to sue, and was disconnected from the actual right to license the patent. But, it's difficult to tell for sure, given all the black ink.

EFF got involved to protest this, and back in January Judge Alsup agreed that Uniloc couldn't hide this info. Since then, Uniloc has been trying to convince Judge Alsup to change his mind, with a ton of filings (and a few hearings) back and forth on this issue. Earlier this week Judge Alsup more or less rejected every argument Uniloc made, even going beyond the question of redacting info.

In short, Judge Alsup says he got it right the first time, and the public's right to know outweighs any concern Uniloc has for giving up its "secret sauce."

This order reiterates the prior order denying plaintiffs’ initial request to seal: generalized assertions of potential competitive harm fail to outweigh the public’s right to learn of the ownership of the patents-in-suit, which patents grant said owner the right to publicly exclude others.... It also reiterates that this is particularly true where, as here, the public has an especially strong interest in learning the machinations that bear on the issue of standing in the patent context. Furthermore, the United States government bestows entities such as Uniloc the right to control the use of the purported inventions at issue. Because Uniloc’s rights flow directly from this government-conferred power to exclude, the public in turn has a strong interest in knowing the full extent of the terms and conditions involved in Uniloc’s exercise of its patent rights and in seeing the extent to which Uniloc’s exercise of the government grant affects commerce.

In other words, a patent grants you tremendous power to exclude in exchange for the public revelation of what you've invented. Uniloc shouldn't be able to conduct its business in secret.

Alsup also notes that Uniloc doesn't even come close to justifying the reasons for its requested redactions other than a general "oh, but it will hurt our business."

... plaintiffs’ supposed risk of (still) generalized competitive harm in future negotiations from disclosure did not and does not compellingly outweigh the public’s interest in accessing this information for the reasons stated above

Alsup mocks Uniloc's reference to other patent suits (including Apple v. Samsung) in which some information was redacted by noting that that was a totally different situation involving actually confidential information from companies selling actual products, not just trolling.

Plaintiffs’ reliance on Apple Inc. v. Samsung Electronics. Co. Ltd., ... is unavailing, inasmuch as the parties there sought to seal product-specific financial information (such as costs, sales, profits, and profit margins), as opposed to the licensing-specific financial information at issue here.... Plaintiffs here have no products to sell and thus their (alleged) risk of competitive harm is entirely distinguishable from that in Apple.

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a "boilerplate assertion of competitive harm fails to provide a compelling reason to seal."

And that's not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide "reasonable royalties" from being used in damage calculations, and calls out "vastly bloated figures."

The impact of a patent on commerce is an important consideration of public interest. One consideration is the issue of marking by licensees. Another is recognition of the validity (or not) of the inventions. Another is in setting a reasonable royalty. In the latter context, patent holders tend to demand in litigation a vastly bloated figure in “reasonably royalties” compared to what they have earned in actual licenses of the same or comparable patents. There is a public need to police this litigation gimmick via more public access. We should never forget that every license has force and effect only because, in the first place, a patent constitutes a public grant of exclusive rights.

Once again, the message is: don't try to bullshit Judge Alsup, especially on technical issues. Now, hopefully, we'll finally see the details of Uniloc's agreements over these patents, and why exactly Apple thinks Uniloc really has no standing to sue.

Filed Under: court records, damages, ownership, patent trolls, patents, redactions, seal, transparency, william alsup
Companies: apple, uniloc

ACLU Asks Court To Force Government To Fight Fairly In FOIA Lawsuit Over Drone Strike Docs

from the this-is-some-[redacted]-right-here dept

The ACLU is headed to the Second Circuit Appeals Court, hoping to force the DOJ to be more... realistic about the government's drone strike operations in Pakistan. It's an FOIA lawsuit, with the ACLU seeking drone documents and being told -- in so many black bars -- that this publicly-acknowledged program is too secret to disclose.

The ACLU goes into this battle fighting blind:

In August 2016, the government blacked out a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court.

The DOJ argues the Pakistan drone strike program has never been officially acknowledged or disclosed. Going from there, it argues it shouldn't have to turn over the information the ACLU is requesting. But, as the ACLU points out, there's plenty of public knowledge about the program's existence. From the ACLU's filing [PDF]:

In this case, the government has not made public the subject of its appeal, and it has redacted any reference to the ruling it challenges from the district court’s opinion. But as best as the ACLU can tell, the appeal asks this Court a simple question: Is it a secret that the United States conducts drone strikes in Pakistan? To answer that question, the Court need only read the plain words, spoken in public while in Pakistan, by the United States’ former Secretary of State. Reading those words, the only logical and plausible answer to that question is “no.”

Here's John Kerry's statement on the program the DOJ says no one is talking about because it arguably may not officially exist:

This evidence included a statement straight from former Secretary of State John Kerry, made in an August 2013 interview on Pakistani television. When Secretary Kerry was asked by the Pakistani journalist if he envisaged a timeline for ending U.S. drone strikes in Pakistan, Secretary Kerry responded that he did and that “the president has a very real timeline and we hope it’s going to be very, very soon.”

Journalists, activists, human rights advocates, and Pakistani citizens have gathered plenty of data on drone strikes the US may or may not be performing. More than 400 strikes have been reported since 2004. And yet, the government claims nothing can be disclosed -- much less discussed openly in court -- because it's a "secret" operation.

In the last courtroom round, the ACLU handed this info to the judge and then watched the government take its paperwork and arguments somewhere the ACLU couldn't participate.

Nevertheless, in the district court, the government argued that former Secretary of State Kerry’s words did not amount to an official disclosure, and it did so in open court. Once the district court apparently agreed with the ACLU, however, the government took its arguments—and the court’s ruling—behind closed doors. The ruling at issue is hidden behind redactions, as are the government’s arguments on appeal. What’s more, the government now asks this Court to erase the district court’s ruling from the books—perhaps even without deciding whether the information at issue is actually a secret.

The ACLU is now asking the Appeals Court to make this a fairer fight.

The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.

You can't fight what you can't see. The government wants the district court's ruling (in favor of the ACLU) overturned and has left the ACLU with the least-useful 40% of its briefing to work with. Before everything gets considered by the court, the ACLU would at least like a second stab at a brief, possibly with the assistance of some less-redacted documents.

The ACLU seeks to litigate this case fairly, and to be as helpful as possible to the Court in adjudicating it. To that end, the ACLU asked the government to review again the redactions in the district court’s opinion before the government filed its appellate brief so that the parties could meaningfully address the relevant issues on appeal. In response, the government asserted that no further information could be provided. Therefore, if the ACLU did not address a particular issue the Court deems important to the resolution of this case, the ACLU would welcome the opportunity to submit supplemental briefing, with the benefit of the Court’s (rather than solely the government’s) views about what can and cannot be said in open court.

Everything's so secret no one can look at it (at least no one who doesn't work for the government) and no one can talk about it (except those who work for the government). The government is using claims of national security to stack the deck in this litigation. Hopefully, the appeals court will realize it can't hold a fair hearing if one side remains blindfolded.

Filed Under: 2nd circuit, appeal, doj, drone strikes, foia, pakistan, redactions
Companies: aclu

DOJ Blows Redaction Effort; Exposes Immigration Judges Accused Of Misconduct

from the REFRESH-TO-REMOVE-REDACTION dept

Some more inadvertent transparency has resulted from a FOIA lawsuit. Two years ago, the DOJ released a bunch of heavily-redacted documents containing complaints about immigration judges to the Public Citizen Litigation Group and the American Immigration Council. Withheld at the time -- or so the DOJ thought -- were the names of the judges named in the complaints.

But that's all history now. Even though the DOJ and the American Immigration Council are still litigating over the legality of redacting the judges' names, those arguments have been rendered irrelevant. As Betsy Woodruff of The Daily Beast reports, additional research work by an immigration lawyer has uncovered the judges' supposedly redacted names.

A few days before Inauguration Day, meanwhile, an immigration attorney named Bryan Johnson was combing through that document trove in search of any tidbits that could help him. Johnson, of the Long Island, New York, law firm Amoachi & Johnson PLLC, represents children who come to the United States without legal authorization, fleeing drug violence in Central America. For these clients, who seek refugee status from some of the most violent parts of the world, deportation can be a death sentence.

Johnson told The Daily Beast that as he was going through those documents, he switched from one document-viewing software program to another, in hopes of making it easier to scroll through.

But when he made the switch, something happened that he hadn’t expected: The redactions vanished.

Johnson discovered that all of the redactions -- which included the personal information of immigrants seeking residency -- weren't truly redacted. They were only hidden. Considering the wealth of personal info in the documents, Johnson hasn't posted unredacted copies of the FOIA'ed complaints. Instead, he's linked as many of the complaints to the now-named judges as possible.

The Executive Office of Immigration Review -- from where the redaction failure stems -- claims Johnson's information is incorrect. While he does possess documents that aren't actually redacted, a spokesperson claims his key matching judges to complaints is inaccurate. But that's as far as the comment goes. No examples of specific inaccuracy have been cited and the EOIR seems content to make it appear as though all of Johnson's work is inherently faulty.

Even if the key is off, the complaints contained in the documents are ugly. Judges who hold people's future in their hands seem to treat the very secretive courts as their fiefdoms.

In complaint number 468, ICE chief counsel advised ACIJ Larry Dean that an IJ (immigration judge) was systematically depriving detained immigrants of procedural due process rights–specifically, the IJ was observed to have been ordering immigrants removed and then subsequently using that removal order to deny immigrants’ right to a bond determination.

And more:

One complainant alleges that an immigration judge gave special leniency to the clients of another immigration attorney. In some complaints, immigrants allege that judges laughed at them, mocked them, and didn’t take seriously their pleas for asylum.

[...]

Documents showed multiple allegations of that judge rudely yelling at DHS attorneys.

The National Association of Immigration Judges has released its own statement, highlighting the effed-up conditions of their particularly unusual workplace. In addition to being understaffed and having a backlog of a half-million cases to work through, the system used to handle complaints about judges is completely opaque -- even to the judges being disciplined.

Most people, lawyers included, fail to understand that the position of Immigration Judges is a legal anomaly. The law under which we serve describes us as attorneys appointed to serve as judges. We are called judges and held to standards of conduct that apply to judges, yet IJs are considered attorneys by the U.S. Department of Justice. This classification means we are subjected to the orders of supervisors, and like any employee, are at risk of discipline for failure to follow the instructions of our supervisors. Immigration Judges are viewed by DOJ as low level employees...

What is even worse is the star chamber manner in which Immigration Judge discipline is meted out. Not infrequently, Immigration Judges have been investigated and discipline proposed without even advising the Judge that a complaint has been filed, let alone asking the Judge to provide his or her side of the story.

Understandably, these judges aren't happy that complaints have been linked to their mistakenly-unredacted names. This has led to talk of a possible lawsuit against the DOJ for doing an inadequate job of protecting the judges' privacy.

On the other hand, government agencies are well-known for doing everything they can to ensure the public knows as little as possible about misconduct or illegal activity committed by government employees. No matter how egregious the violation, the names are withheld for as long as possible -- in some cases indefinitely. Meanwhile, the merest accusation of illegal activity committed by a taxpayer tends to result in the release of that person's name in full -- along with any background info that can be dredged up. If these judges are worried about their reputations as the result of unsubstantiated allegations… well, hey, welcome to the world the rest of us live in.

But underlying all of this is an error that undoes months of litigation and thousands of taxpayer dollars. The government -- at least until recently -- has been arguing this information should be withheld. Right or wrong, the information hasn't been, but constituents are still on the hook for the costs of this particularly futile legal battle.

Filed Under: doj, immigration, immigration judges, judges, privacy, redactions

FBI Releases A Stack Of Redactions In Response To FOIA Request For Info On Its Purchased iPhone Hack

from the nothing-in-here-you-haven't-not-seen-before dept

As the result of an FOIA lawsuit brought by the Associated Press, USA Today, and Vice, the FBI has finally released documents about the one-time iPhone exploit/hack it purchased from an unknown foreign vendor. Well, more accurately, the FBI released a bunch of paper with nearly nothing left unredacted, as USA Today's Brad Heath pointed out multiple times on Twitter.

Among the things the FBI withheld are the non-disclosure agreement it signed with the company, the vendor's clear air and water certification, the date it was given approval to purchase the exploit, and pretty much anything else the FBI felt it could cover with white space and variations of the letter "b."

Here's USA Today's summary of what was left unredacted.

Friday's data release included dozens of pages of contracting boilerplate but no information about the source of the exploit or its cost. The FBI indicated in the records that both of those details are classified. FBI Director James Comey intimated during a public forum last year that the price was more than $1 million.

The documents did show that after the FBI’s clash with Apple became public, at least three other companies expressed interest in cracking the phone, even though none of them had by that point started developing a tool that would have allowed them to do so.

The last part shows there's no shortage of "smart people" willing to help solve James Comey's encryption problems, even if these solutions might only work one time and be far more expensive than the precedential court decisions and/or favorable legislation Comey is seeking.

In all fairness to the FBI, the public received about as much useful information from this document release as the FBI received from its pricey, one-time phone cracking. A long list of FOIA exemptions were used to justify even boilerplate like clean air/water compliance, which is par for the course when the FBI feels its methods and techniques might be made public.

If these redactions are challenged, the FBI is going to have a fun time explaining why it couldn't even release the price of the exploit, much less large chunks of the standard contractual language it deploys when working with private companies -- whether they're cracking open iPhones or supplying toner cartridges.

Filed Under: fbi, foia, iphone, iphone hack, redactions

DOJ Rushed To Link Orlando Shooter To ISIS, Now Plans To Redact What He Said During 911 Call For... Reasons

from the huh? dept

The FBI/DOJ had no problem rushing out claims last week that Omar Mateen, the guy who killed 49 people in a rampage at a club in Orlando last weekend, had "pledged allegiance" to ISIS. James Comey delivered remarks that said as much last Monday:

It is also not entirely clear at this point just what terrorist group he aspired to support; although, he made clear his affinity, at the time of the attack, for ISIL, and generally, leading up to the attack, for radical Islamist groups. He made 911 calls from the club, during the attack, at about 2:30 in the morning, Sunday morning. There were three different calls. He called and he hung up. He called again and spoke briefly with the dispatcher, and then he hung up, and then the dispatcher called him back again and they spoke briefly. There were three total calls.

During the calls he said he was doing this for the leader of ISIL, who he named and pledged loyalty to, but he also appeared to claim solidarity with the perpetrators of the Boston Marathon bombing, and solidarity with a Florida man who died as a suicide bomber in Syria for al Nusra Front, a group in conflict with Islamic State. The bombers at the Boston Marathon and the suicide bomber from Florida were not inspired by ISIL, which adds a little bit to the confusion about his motives.

By now, it's pretty clear that the link to terrorism is basically non-existent, and that he fits the profile of a "typical mass shooter" rather than someone doing this for ISIS or any other terrorist reasons. As Marcy Wheeler points out, this also may explain why even though the FBI had checked out Mateen twice, including using the FBI's infamous "confidential informants" who often push people to join them in made up terrorist plots, they decided he wasn't a threat. It appears that Mateen didn't give any indication that he was really into aligning himself with ISIS or any other terrorist group, and Wheeler wonders if the FBI cared that he might do other damage, since they're so focused just on terrorism these days.

Instead, it appears, the FBI assessed Mateen for one and only one thing: whether his bogus claims of ties to terrorist organizations were real. There have been a slew of articles, such as this one or this one, wondering why the FBI didn’t “identify” Mateen as a “real” terrorist in its two investigations of him. But it appears the FBI was assessing only whether he was likely to commit violence because of–and with the support of–an Islamic terrorist group. It appears they weren’t assessing whether he was, like the overwhelming majority of men who commit mass shootings in this country, really screwed up, expressing it in violent ways, and seeking attention with such actions.

It is true that Islamic extremists want to attack this country. It is also true that far, far more Americans die when men carry out mass killings because they’re fucked up and begging for attention. If you’re Muslim, the easiest way to get attention right now is to say that word, “ISIS,” because it’s a guarantee law enforcement and politicians will give that killing more due then they might give the next disturbed mass shooter.

Of course, now that the DOJ seems to be realizing that this wasn't based on any connection to middle east groups, it seems to want to bury the issue. Attorney General Loretta Lynch has declared that when the transcript of Mateen's 911 calls are released, they're going to redact his claims to be doing it for ISIS for [reasons].

LORETTA LYNCH:

Yes, I’ll be going to Orlando on Tuesday to continue my briefings in the case. Actually though what we are announcing tomorrow is that the F.B.I. is releasing a partial transcript of the killer’s calls with law enforcement from inside the club. These are the calls with the Orlando P.D. negotiating team who were trying to ascertain who he was, where he was, and why he was doing this, all the while the rescue operations were continuing. That’ll be coming out tomorrow and I’ll be headed to Orlando on Tuesday.

CHUCK TODD:

Including the hostage negotiation part of this?

LORETTA LYNCH:

Yes. It will be primarily a partial transcript of his calls with the hostage negotiators.

CHUCK TODD:

You say partial. What’s being left out?

LORETTA LYNCH:

Well, what we’re not going to do is further proclaim this individual’s pledges of allegiance to terrorist groups and further his propaganda.

CHUCK TODD:

So we’re not going to hear him talk about those things?

LORETTA LYNCH:

We will hear him talk about some of those things, but we’re not going to hear him make his ascertains of allegiance and that. This will not be audio. This will be a printed transcript. But it will begin to capture the back and forth between him and the negotiators. We’re trying to get as much information about this investigation out as possible. As you know, because the killer is dead, we have a bit more leeway there. And so we will be producing that information tomorrow.

Marcy Wheeler again points out how absolutely ridiculous this is, including the idea that releasing such statements would "re-victimize" people. That makes absolutely no sense:

If releasing these claims of affiliation would “revictimize” the victims, then releasing them in the first place served to victimize them. So the much better approach would be the release the full transcripts and admit the Department fucked up, both in its assessment of a potential mass killer, and in rushing to blame ISIS in the first place. Not to mention that this will just feed conspiracy theories.

If DOJ fucked up — and the claim this could revictimize people is tacit admission it seriously fucked up — then admit that and make it right. Pay the political consequences of admitting that our obsessive focus on terrorism has distracted us from the more general, and therefore more lethal, problem with mass killings. Don’t try to pretend there’s a good reason for suppressing the very same claims you made a big deal of a week ago.

If DOJ now believes the claims served to do nothing more than give Mateen’s rampage more attention — and it was a key part of generating that attention — then it needs to come clean.

And, of course, as everyone knows, redacting such information is only calling more attention to it, and almost certainly feeding into the typical plot lines of conspiracy theorists. Why not just release the full transcripts (as required under Florida's public records laws) and with it a full explanation for why the claims of being associated with various groups (many of which are in conflict with each other) make no sense. That is, why not try to calm down the kneejerk reaction the DOJ set off in the first place?

Filed Under: doj, fbi, isis, omar mateen, redactions, streisand effect

MuckRock's FOIA Redaction Hall Of Shame

from the lots-of-shame-to-go-around dept

This week is Sunshine Week, and the good folks over at FOIA site Muckrock.com have encouraged us to repost this wonderful/horrifying post on the worst FOIA redactions. You can also view the original MuckRock's FOIA redaction hall of shame over at their site.

If you only have a hammer, then every problem looks like a nail — and as we've learned over the years from many an overenthusiastic FOIA officer, if you only have a Sharpie, then every document looks classified. As part of our Sunshine Week coverage, we put together a list of the most ridiculous redactions we've (un)seen.

Amtrak's Yes We Have No Snack Car

It took Amtrak a little over nine months to process Conor Skelding's request for complaints regarding its lounge cars. While at first that may not seem like the kind of task that would require the same time it takes to fully gestate a human being, it appears that the FOIA officer took Conor's request a bit ... literally and redacted all complaints except those regarding the lounge car, giving you gems like this:

And this one, a horrifying short story in its own right.

B(6), the Beyoncé Exemption

In 2013, there was controversy abounded when The Times of London alleged that Beyoncé's perfect rendition of the "Star Spangled Banner" during Obama's second inauguration was the work of lip-syncing. Unperturbed, MuckRock's founder Michael Morisy seized on this as an opportunity to use FOIA to release those tracks, providing public-domain Bey for all. Sadly, his efforts were thwarted by a combination of FOIA not working that way, and of all things, John Williams. Yes, that John Williams.

Adding insult to injury (a phrase that will come up more than once in this article), Michael's follow-up request for the processing notes on his request included a very notable omission.

Yes, despite it being a request about the very public performance of a very public figure, Beyoncé's name was redacted, fittingly, under b(6), FOIA's privacy exemption ...

But what a strong, independent b(6) she is.

Bureau of Prisons' Record Breaking Non-release

Also in 2013, the Justice Department's Criminal Division was widely ridiculed for "releasing" 15 completely redacted pages to the ACLU.

Well, apparently there's a inter-departmental competition on wasted ink, because earlier this year, fellow DOJ component the federal Bureau of Prisons responded to Beryl Lipton's request for contracts with nearly 150 functionally blank pages ... and to add insult to injury (see?), each page was rendered in an inexplicably hideous shade of bureaucratic yellow.

Adding additional insult to the already insulted injury, this was a physical release, so each of those pages had to be scanned in manually.

The CIA's Redaction Game Goes Meta

While we wrote about this just last week, we're only now grasping the implications - the CIA spent over a year on John Kirsch's request regarding JFK assassination researcher Mary Ferrell, and their final response was just a copy of his original request, with the very dead Ferrell's social security number scratched out.

Which means the CIA have achieved the impossible and managed to release less information through FOIA than we had to begin with. Begrudging respect, that's taking "less is more" to the next level.

The DEA's Pretty Sure You're Okay with  

Back in 2014, CJ Ciaramella received training slides from the DEA regarding the sinister-sounding, and ultimately, sinister-being practice of "parallel construction," which encourages agents to hide evidence chains obtained from covert surveillance techniques, particularly the ethically ambiguous ones. To that end, the instructor differentiates between methods that Americans are chill with and ones that they are decidedly less chill with. Number one among chill-with methods is  .

While the fact that this method is so acceptable you don't even need to know its name might raise some eyebrows, this next slide should assuage all your lingering legal doubts.

See? Nothing to worry about.

Somehow, what was left in the slides manages to be even less comforting that what was taken out - including some not-at-all-inappropriate Dirty Harry trivia to make sure folks are paying attention.

The IRS's Mission: Incredible Waste of Time and Money

Last year, Alex Richardson filed several requests to the IRS regarding their embattled Whistleblower's Officer, which has been charitably described as "intentionally undermined." Seeing as the agency had already gone far enough to break out the "neither confirm nor deny" denial on the subject, we didn't get our hopes up ... which is why we were caught off-guard when a CD of "responsive documents" arrived in the mail.

Even more enticingly, the CD was encrypted, with a note that further instructions would come in the mail. Cue strings.

Sure enough, a day later those instructions came, and even though they were a tad on the underwhelming side (the passcode turned out to be "FOIAis" and the tracking number) we were eager to get our hands on the obviously valuable information contained therein, which turned out to be ... six completely redacted pages.

At least one staff member self-destructed in 30 seconds.

Finally, to add iInsult to iInjury, the encryption program only works on Windows - so Apple users can't even access the nothing they've got.

The NYPD's Pigpen Exemption

Not all redactions are intentional - after Shawn Musgrave successfully fought the NYPD's claim that he hadn't "reasonably described" the very specific form he had requested by using the very specific form number, they relented and handed over a copy. Although, apparently, first they rubbed a diarrhetic squid over it...

...and then they handed over a copy. Significantly more legible was the cover letter that came with the release, demanding a $1.25 for copying fees. Insult, injury, etcetera.

In a rare FOIA-ry Tale ending, Shawn pushed back on grounds that, well, he was kinda actually hoping to read the thing, and the NYPD coughed up a clean copy. As for our calimari friend, looks like they were adopted by the FCC.

The Sobering, Staggering Conclusion

Five years ago, before everyone and their libertarian uncle were up in arms about bulk data collection, Jason Smathers requested talking points from the NSA. Nearly two years later, this request produced perhaps the pinnacle of the FOIA officer's art form - "These are sobering findings."

Often imitated ...

...but never duplicated, we keep the original copy above the MuckRock coffee machine as a daily reminder that sunlight isn't just the best disinfectant...

...but it's a pretty decent check on self-importance, too.

Happy Sunshine Week, everybody!

Filed Under: foia, hall of shame, muckrock, redactions

FBI Finally Completes FOIA Request 1,393 Days After It Was Filed; Withholds All 509 Responsive Pages

from the lol-'responsive' dept

Michael Morisy -- founder of FOIA clearinghouse MuckRock -- has been waiting since February of 2012 for the FBI to hand over information on its GPS tracking devices. Specifically, Morisy was looking for information on any devices it deactivated/recollected after the Supreme Court (US v. Jones) declared the warrantless, long-term tracking of individuals could amount to a Fourth Amendment violation.

The decision didn't explicitly state GPS tracking devices now needed to be accompanied by warrants, but it was enough that the FBI began shutting down its 3,000 devices. (It turned most of them back on a month later after securing the proper paperwork. Only 250 or so were permanently switched off. And, of course, the FBI grumbled about having to obtain warrants for devices it had already deployed, because the Fourth Amendment doesn't do anything but slow down law enforcement.)

With that in mind, Morisy asked for this:

Any lists or logs of sites or locations where the FBI has or had GPS units positioned for monitoring or surveillance purposes. If revealing the exact locations is exempt, please redact exempt information and release cities and states where devices are located.

If multiple years of logs are kept, pleas release all logs or lists created since 2005, focusing on the most recent or up to date logs or lists.

The pullback of the GPS Surveillance Program was acknowledged by FBI General Counsel Andrew Weissmann recently. If there is a list, tally or log of GPS devices being deactivated in the wake Supreme Court Ruling U.S. v. Jones, that list, tally or log may be substituted instead of searching for older records.

1,393 days later, the FBI has finally fulfilled his request in full. While it did spring some stuff loose in April, the remaining disputed documents were finally released 3 years, 9 months and 24 days after Morisy requested them.

And what was turned over to him in the final, long-delayed batch were two PDFs containing nothing more than a long list of pages the FBI isn't going to be releasing.





In total, ten printed pages containing lists of pages being withheld -- 509 pages in total the FBI has decided it doesn't have to release.

What was released earlier in the year is similarly useless. There's nothing about the GPS units. Almost everything contained in those documents pertains to GPS device training. And even in those, nearly nothing made its way past the FBI's redaction unit.

Still, there are a few hints as to what the FBI thought it had to do to mitigate Fourth Amendment concerns when deploying GPS tracking devices.

Follow this one simple [redacted] trick to avoid having your evidence thrown out!


[In hindsight, the "No supression" note was a bit too optimistic...]

Combine these two items for simple deployment, neither of which is a warrant.


This is the FOIA process. Anyone can play, but the government still holds the cards and deals from the bottom of the deck. Even the long-delayed, fully-withheld documents don't appear to be the information Morisy specifically asked for. One is titled "Manufacturer Materials." The other, "FBI Policy Section 2." Nothing returned in response to this request actually appears to be "responsive" in the traditional sense of the word. And it took the FBI most of four years to finally complete its (possibly purposeful) botching of Morisy's request.

Filed Under: fbi, foia, gps tracking, gps tracking devices, redactions, responsive, transparency