CVIndependent

Fri07192019

Last updateTue, 18 Sep 2018 1pm

The cause of government transparency finally broke through to the popular zeitgeist this year.

It wasn’t an investigative journalism exposé or a civil rights lawsuit that did it, but a light-hearted sitcom about a Taiwanese-American family set in Orlando, Fla., in the late 1990s.

In a January episode of ABC’s Fresh Off the Boat, the Huang family’s two youngest children—overachievers Evan and Emery—decide if they sprint on all their homework, they’ll have time to plan their father’s birthday party.

“Like the time we knocked out two English papers, a science experiment, and built the White House out of sugar cubes,” Evan said. “It opened up our Sunday for filing Freedom of Information requests.”

“They may not have figured out who shot JFK,” Emery added. “But we will.”

The eldest child, teenage-slacker Eddie, concluded with a sage nod, “You know, once in a while, it’s good to know nerds.”

Amen to that. Around the world, nerds of all ages are using laws like the United States’ Freedom of Information Act (and state-level equivalent laws) to pry free secrets and expose the inner workings of our democracy. Each year, open government advocates celebrate these heroes this time of year during Sunshine Week, an annual advocacy campaign on transparency.

But the journalists and researchers who rely on these important measures every day can’t help but smirk at the boys’ scripted innocence. Too often, government officials will devise novel and outrageous ways to reject requests for information or otherwise stymie the public’s right to know. Even today—20 years after the events set in the episode—the White House continues to withhold key documents from the Kennedy assassination files.

Since 2015, the Electronic Frontier Foundation (a nonprofit that advocates for free speech, privacy and government transparency in the digital age) has published The Foilies to recognize the bad actors who attempted to thwart the quests for truth of today’s Evans and Emerys. With these tongue-in-cheek awards, we call out attempts to block transparency, retaliation against those who exercise their rights to information, and the most ridiculous examples of incompetence by government officials who handle these public records.


The Corporate Eclipse Award: Google, Amazon, and Facebook

Sunshine laws? Tech giants think they can just blot those out with secretive contracts. But two nonprofit groups—Working Partnerships and the First Amendment Coalition—are fighting this practice in California by suing the city of San Jose over an agreement with Google that prevents city officials from sharing the public impacts of development deals, circumventing the California Public Records Act.

Google’s proposed San Jose campus is poised to have a major effect on the city’s infrastructure, Bloomberg reported. Yet, according to the organization’s lawsuit, records analyzing issues of public importance such as traffic impacts and environmental compliance were among the sorts of discussions Google demanded be made private under their nondisclosure agreements.

It’s not just Google using these tactics. An agreement between Amazon and Virginia includes a provision that the state will give the corporate giant—which is placing a major campus in the state—a heads-up when anyone files a public-records request asking for information about them. The Columbia Journalism Review reported that Facebook has also used this increasingly common strategy for companies to keep cities quiet and the public in the dark about major construction projects.


The Unnecessary Box Set Award: Central Intelligence Agency

After suing the CIA to get access to information about Trump’s classified briefings, Kel McClanahan of National Security Counselors was expecting the agency to send over eight agreed-upon documents.

What he was not expecting was for the files—each between three and nine pages each—-to be spread out across six separate CD-ROMs, each burned within minutes of each other, making for perhaps the most unnecessary box set in the history of the compact disc.

What makes this “extra silly,” McClanahan said, is that the CIA has previously complained about how burdensome and costly fulfilling requests can be. Yet the CIA could have easily combined several requests onto the same disc and saved themselves some time and resources. After all, a standard CD-ROM can hold 700 MB, and all of the files took only 304 KB of space.


The (Harlem) Shaky Grounds for Redaction Award: Federal Communications Commission

After repealing the Open Internet Order and ending net neutrality, Federal Communications Commission Chairman Ajit Pai doubled down on his efforts to ruin online culture. He released a cringe-inducing YouTube video titled “7 Things You Can Still Do on the Internet After Net Neutrality“ that featured his own rendition of the infamous “Harlem Shake” meme. (For the uninitiated, the meme is characterized by one person subtly dancing in a room of people to Baauer’s track “Harlem Shake.” Then the bass drops, and the crowd goes nuts, often with many people in costumes.)

Muckrock editor JPat Brown filed a Freedom of Information Act request for emails related to the video, but the FCC rejected the request, claiming the communications were protected “deliberative” records.

Brown appealed the decision, and the FCC responded by releasing all the email headers, while redacting the contents, claiming that anything more would cause “foreseeable harm.” Brown did not relent, and a year later, the FCC capitulated and released the unredacted emails.

“So, what did these emails contain that was so potentially damaging that it was worth risking a potential FOIA lawsuit over?” Brown writes. “Pai was curious when it was going live, and the FCC wanted to maintain a veto power over the video if they didn’t like it.” The most ridiculous redaction of all was a tiny black box in an email from the FCC media director. Once removed, all that was revealed was a single word: “OK.”


The Unreliable Narrator Award: President Donald Trump, the U.S. Department of Justice and U.S. District Court Judges

When President Trump tweets attacks about the intelligence community, transparency groups and journalists often file FOIA requests (and subsequently lawsuits) seeking the documents that underpin his claims. The question that often comes up: Do Trump’s smartphone rants break the seal of secrecy on confidential programs?

The answer seems to be no. Multiple judges have sided with Justice Department lawyers, concluding that his Twitter disclosures do not mean that the government has to confirm or deny whether records about those activities exist.

In a FOIA case seeking documents that would show whether Trump is under investigation, U.S. District Judge Amy Berman Jackson said that the President’s tweets to that effect are “speculation.” Similarly, in a FOIA suit to get more information about the widely publicized dossier of potential ties between Trump and Russia, U.S. District Judge Amit Mehta said that the president’s statements are political rather than “assertions of pure fact.”

And so, whether Trump actually knows what he’s talking about remains an open question.


The Cross-Contamination Award: Stanford Law Professor Daniel Ho

One of the benefits of public records laws is they allow almost anyone—regardless of legal acumen—to force government agencies to be more transparent, usually without having to file a lawsuit.

But in Washington state, filing a public-records request can put the requester at legal risk of being named in a lawsuit should someone else not want the records to be made public.

This is what happened to Sarah Schacht, a Seattle-based open-government advocate and consultant. For years, Schacht has used public records to advocate for better food-safety rules in King County, an effort that led to the adoption of food-safety placards found in restaurants in the region.

After Schacht filed another round of requests with the county health department, she received a legal threat in November 2018 from Stanford Law School professor Daniel Ho’s attorney threatening to sue her unless she abandoned her request. Apparently, Ho has been working with the health department to study the new food-safety and placard regulations. He had written draft studies that he shared with the health department, making them public records.

Ho’s threat amounted to an effort to intimidate Schacht from receiving public records, probably because he had not formally published his studies first. Regardless of motive, the threat was an awful look. But even when faced with the threat, Schacht refused to abandon her request.

Fortunately, the lawsuit never materialized, and Schacht was able to receive the records. Although Ho’s threats made him look like a bully, the real bad actor in this scenario is Washington State’s public-records law. The state’s top court has interpreted the law to require parties seeking to stop agencies from releasing records (sometimes called reverse-FOIA suits) to also sue the original requester along with the government agency.


The Scanner Darkly Award: St. Joseph County Superior Court

ProPublica reporter Jessica Huseman has been digging deep into the child-welfare system and what happens when child abuse results in death. While following up on a series of strangulations, she requested a copy of a case file from the St. Joseph County Superior Court in Indiana. Apparently, the clerk on the other end simply took the entire file and ran everything through a scanner. The problem was that the file contained a CD-ROM, and that’s not how CD-ROMs work. “Well, this is the first time this had happened,” Huseman posted to Twitter, along with the blotchy black-and-white image of the top of the disc. “They scanned a CD as part of my FOI and didn’t give me its contents. Cool cool.”


The Cash for Crash Award: Michigan State Police

As tech companies experiment with autonomous vehicles on public roadways, reporters are keeping tabs on how often these cars are involved in collisions. That’s why The Information’s Matt Drange has been filing records requests for the crash data held by state agencies. Some government departments have started claiming that every line of the dataset is its own individual record—subject to a copy fee. Our winner, the Michigan State Police, proposed to charge Drange a 25-cent fee for each of a 1.9 million-line dataset, plus $20 for a thumb drive, for a grand total of $485,645.24, with half of it due up front. Runners-up that quoted similar line-by-line charges include the Indiana State Police ($346,000) and the North Carolina Department of Transportation ($82,000).

Meanwhile, Florida’s government released its detailed dataset at no charge at all.


The Bartering With Extremists Award: California Highway Patrol

In 2016, the Traditionalist Worker Party (TWP), an infamous neo-Nazi group, staged a demonstration at the California State Capitol. Counter-protesters fiercely opposed the demonstration, and the scene soon descended into chaos, leaving multiple people injured. When the dust settled, a member of the public (who, we should disclose, is a co-author of this piece) filed a California Public Records Act request to obtain a copy of the permit the white nationalist group filed for its rally. The California Highway Patrol rejected the request for this normally available document, claiming it was related to a criminal investigation.

Two years later, evidence emerged during criminal proceedings that a CHP detective used the public-records request as a bargaining chip in a phone call with the TWP protest leader, who was initially reluctant to provide information. The officer told him how the request might reveal his name. “We don’t have a reason to … uh … deny (the request),” the officer said, according a transcript of the call. But once the organizer decided to cooperate, the officer responded, “I’m gonna suggest that we hold that or redact your name or something … uh … until this thing gets resolved.”

In light of these new facts, the First Amendment Coalition filed a new request for the same document. It, too, was denied.


The Pre-emptive Shredding Award: Inglewood Police Department

In defiance of the law-enforcement lobby, California legislators passed a law (SB 1421) requiring police and sheriffs to disclose officer-misconduct records in response to California Public Records Act requests. These documents, often contained in personnel files, had historically been untouchable by members of the public and the press.

Almost immediately, police unions across the Golden State began to launch lawsuits to undermine these new transparency measures. But the Inglewood Police Department takes the prize for its efforts to evade scrutiny. Mere weeks before the law took effect on Jan. 1, 2019, the agency began destroying records that were set to become publicly available.

“This premise that there was an intent to beat the clock is ridiculous,” Inglewood Mayor James T Butts Jr. told the Los Angeles Times in defending the purge. We imagine Butts would find it equally ridiculous to suggest that the fact he had also been a cop for more than 30 years, including serving in Inglewood and later as police chief of Santa Monica, may have factored into his support for the destruction of records.


The What the Swat? Award: Nova Scotia and Halifax Law Enforcement

One Wednesday morning in April, 15 Halifax police officers raided the home of a teenage boy and his family. “They read us our rights and told us not to talk,” his mother would later tell the CBC. “They rifled through everything. They turned over mattresses; they took drawers and emptied out drawers; they went through personal papers, pictures. It was totally devastating and traumatic.”

You might well wonder: What was the Jack Bauer-class threat to geo-political stability? Nothing at all: The Canadian teen had just downloaded a host of public records from openly available URLs on a government website.

At the heart of the ordeal was some seriously terrible security practices by Nova Scotia officials. The website created to host the province’s public records was designed in such a way that every request and response had a nearly identical URL and placed no technical restrictions on the public’s ability to access any of the requests. This meant that regular public-records requests and individuals’ requests to access government files about them, which included private information, were all stored together and available on the internet for anyone, including Google’s webcrawler, to access. All that was necessary was changing a number identifying the request at the end of the URL.

What Nova Scotian officials should have done upon learning about leaks in their own public-records website’s problems was apologize to the public, thank the teen who found these gaping holes in their digital security practices, and implement proper restrictions to protect people’s private information. They didn’t do any of that, and instead sought to improperly bring the force of Canada’s criminal hacking law down on the very person who brought the problem to light.

The whole episode—which thankfully ended with the government dropping the charges—was a chilling example of how officials will often overreact and blame innocent third parties when trying to cover up their own failings. This horror show just happened to involve public records. Do better, Canada.


The Outrageous Fee Request of the Year: City of Seattle

When self-described transparency advocate and civic hacker Matt Chapman sent his request to Seattle seeking the email metadata from all city email addresses (from/to/BCC addresses, time, date, etc.), he expected some pushback, because it does sound like an incredible amount of data to wrangle.

Seattle’s response: All the data can be yours for a measly $33 million. Officials estimated that it would take 320 years’ worth of staff time to review the roughly 32 million emails responsive to Chapman’s request. Oh, and they estimated charging an additional $21,600 for storage costs associated with the records. The fee request is the second highest in the history of The Foilies. (The Department of Defense won in 2016 for estimating it would take $660 million to produce records on a particular computer forensic tool.)

Then the city did something entirely unexpected: It revisited the fee estimate and determined that the first batch of records would cost only $1.25 to process. We get it; math is hard.

But wait—that’s not all. After paying for the batches of records with a series of $1.25 checks, Chapman received more than he ever bargained for: Rather than disclosing just the metadata for all 32 million emails, Seattle had given him the first 256 characters of every email. Those snippets included passwords, credit card numbers and other personally identifying information.

What followed was a series of conversations between Chapman, Seattle’s lawyers and the city’s IT folks to ensure he’d deleted the records and that the city hadn’t just breached its own data protections via a public-records request.

Ultimately, Seattle officials in January 2018 began sending the data to Chapman once more, this time without the actual content of email messages. The whole episode doesn’t exactly inspire confidence in Seattle officials’ ability to do basic math, comply with the public records law or protect sensitive information.


The Intern Art Project Award: Vermont Gov. Phil Scott

Seattle isn’t the only city to stumble in response to Matt Chapman’s public-records requests for email metadata. The Vermont governor’s office also wins for its scissor-and-glue approach to releasing electronic information.

Rather than export the email information as a spreadsheet, the Vermont governor’s office told Chapman it had five interns (three of whom were unpaid) working six hours each, literally “cutting and pasting the emails from paper copies.” The next thing Chapman knew, he had a 43-page hodgepodge collage of email headers correlating with one day’s worth of messages. The governor’s attorney told Chapman it would cost $1,200 to process three more days’ worth of emails.

Chapman pushed back and provided his own instructions on exporting the data using a computer and not, you know, scissors and glue. Sure enough, he received a 5,500-line spreadsheet a couple of weeks later at no charge.


The Least-Transparent Employer Award: U.S. Department of Justice

In the last few years, we’ve seen some great resignation letters from public servants, ranging from Defense Secretary James Mattis telling President Trump, “It’s not me; it’s you,” to former Attorney General Jeff Sessions‘ forced resignation.

But the Trump DOJ seems to have had enough of the tradition and has now determined that U.S. Attorney resignation letters are private in their entirety and cannot be released under the Freedom of Information Act. Of course, civil servants should have their private information protected by their employer, but that’s precisely what redactions should be used to protect.

Past administrations have released resignation letters that are critical of executive branch leaders. The change in policy raises the question: What are departing U.S. Attorneys now saying that the government wants to hide?


The Clawback Award: The Broward County School Board

After the tragic Parkland shooting, the South Florida Sun-Sentinel went to court to force the Broward County School Board to hand over documents detailing the shooter’s education and disciplinary record. A judge agreed and ordered the release, as long as sensitive information was redacted.

But when reporters copied and pasted the file into another document, they found that the content under the redactions was still there and readable. They broke the story of how the school denied the shooter therapeutic services and alternative education accommodations, but then uploaded the school board’s report with working redactions.

Rather than simply do better with double-checking their redactions next time, the school board struck back at the newspaper. They petitioned the court to hold the newspaper in contempt and to prevent anyone from reporting on the legally obtained information. Although the local judge didn’t issue a fine, she lambasted the paper and threatened to dictate exactly what the paper could report about the case in the future (which is itself an unconstitutional prior restraint).


The Wrong Way to Plug a Leak Award: City of Greenfield, Calif.

The Monterey County Weekly unexpectedly found itself in court after the city of Greenfield, Calif., sued to keep the newspaper from publishing documents about the surprising termination of its city manager.

When editor Sara Rubin asked the interim city manager for the complaint the outgoing city manager filed after his termination, she got nothing but crickets. But then an envelope containing details of a potential city political scandal appeared on the doorstep of one of the paper’s columnists.

The weekly reached out to the city for comment and began preparing for its normal Wednesday print deadline. Then, the morning of publication, the paper got a call saying that they were due in court: The city sued to block publication of the documents, to have the documents returned and to have the paper reveal the identity of the leaker.

Attorney Kelly Aviles of the First Amendment Coalition gave everyone a fast lesson in the First Amendment, pointing out that the paper had every right to publish. The judge ruled in the paper’s favor, and the city ended up paying all of the Monterey County Weekly’s attorney fees.


If it Looks like a Duck Award: Brigham Young University Police

Brigham Young University’s Police Department is certified by the state,* and has the powers of the state, but says that they’re not actually a part of government for purposes of the Utah transparency law.

After the Salt Lake Tribune exposed that the university punished survivors of sexual assault for coming forward and reporting, the paper tried to get records of communications between the police department and the school’s federally required sexual assault coordinator. BYU pushed back, saying that the police department is not subject to Utah’s Government Records Access and Management Act because the police department is privately funded.

This turns out to be a trickier legal question than you’d expect. Brigham Young University itself isn’t covered by the state law because it is a private school. But the university police force was created by an act of the Utah Legislature, and the law covers entities “established by the government to carry out the public’s business.” Investigating crime and arresting people seems like the public’s business.

Last summer, a judge ruled that the police department is clearly a state agency, but the issue is now on appeal at the Utah Supreme Court. Sometime this year, we should learn if the police are a part of the government or not.

*Because BYU police failed to comply with state law, and was not responsive to an internal investigation, the Utah Office of Public Safety notified the department on Feb 20 that the BYU police department will be stripped of its certification on Sept. 1, 2019. The university police also plan to appeal this decision.


The Insecure Security Check Award: U.S. Postal Service

Congressional elections can turn ugly, but the opponent of newly elected U.S. Rep. Abigail Spanberger got a boost when the U.S. Postal Service released Spanberger’s entire personnel file, including her security-clearance application, without redaction of highly sensitive personal information.

When a third party requests a person’s federal employment file without the employee’s permission, the government agency normally releases only a bare-bones record of employment dates, according to a Postal Service spokesperson. But somehow Rep. Spanberger wasn’t afforded these protections, and the Postal Service has potentially made this mistake in a “small number” of other cases this year. Security-clearance applications (Form SF-86) are supposed to be analyzed and investigated by the FBI, raising questions about how the FOIA officer got the information in the first place. The Postal Service has apologized for the mistake, which they say is human error, but maybe security-clearance applications should be kept just as secure as the state secrets the clearance is meant to protect.

The Foilies were compiled by Electronic Frontier Foundation Senior Investigative Researcher Dave Maass, Staff Attorney Aaron Mackey, Frank Stanton Fellow Camille Fischer, and Activist Hayley Tsukayama. Illustrations by EFF Art Director Hugh D’Andrade. For more on our work, visit eff.org.

Published in Features

The first season of The Marvelous Mrs. Maisel was a huge success, garnering five Primetime Emmy Awards—including Outstanding Comedy Series honors—and giving Amazon Studios its biggest hit to date.

Given all the accolades and press, show runners Amy Sherman-Palladino and Daniel Palladino had to be feeling a lot of pressure to deliver with the show’s second season—and deliver, they did, on Dec. 5 with 10 splendid episodes.

While the second season doesn’t cover any surprising ground—the plot lines all head pretty much where one would predict them to head—the writing remains sharp and delightful, and the acting is consistently stellar.

Season 2 takes us on a comedy tour with Midge (Rachel Brosnahan) and Susie (cast MVP Alex Borstein); to Paris with Midge and parents Rose (Marin Hinkle) and Abe (Tony Shalhoub); and on a summer away in the Hamptons with the entire Masiel and Weissman families. New addition Zachary Levi is on hand as a potential love interest for Midge.

Side note: I can’t believe Miriam Maisel and House of Cards’ Rachel Posner—she’s the prostitute knocked off by an obsessed Doug Stamper—are played by the same actress. Rachel Brosnahan, you’re amazing!

The second season of The Marvelous Mrs. Maisel is now streaming on Amazon Video.

Published in DVDs/Home Viewing

“Fake news” is not a new thing. In Censored 2019: Fighting the Fake News Invasion, Project Censored’s vivid cover art recalls H.G. Wells’ War of the Worlds.

The situation today may feel as desolate as the cover art suggests.

Censored 2019 is a book about fighting fake news,” editors Andy Lee Roth and Mickey Huff observed in the book’s introduction. In the end, they argued that “critical media education—rather than censorship, blacklists, privatized fact-checkers, or legislative bans—is the best weapon for fighting the ongoing fake news invasion.”

Project Censored’s annual list of 25 censored stories, which makes up the book’s lengthy first chapter, is one of the best resources one can have for such education.

Project Censored has long been engaged in much more than just uncovering and publicizing stories kept down and out of the corporate media. Over the years, it added new analytical categories, including sensationalist and titillating Junk Food News stories. But through it all, the list of censored stories remains central to Project Censored’s mission, which, the editors point out, can be read in two different ways: “As a critique of the shortcomings of U.S. corporate news media for their failure to adequately cover these stories, or as a celebration of independent news media, without which we would remain either uninformed or misinformed about these crucial stories and issues.”


1. Global Decline in the Rule of Law as Basic Human Rights Diminish

According to the World Justice Project Rule of Law Index 2017–2018, released in January 2018, a striking worldwide decline in basic human rights has driven an overall decline in the rule of law since October 2016—the month before Trump’s election.

Fundamental rights—one of eight categories measured—declined in 71 out of 113 nations surveyed. Overall, 34 percent of countries’ scores declined, while just 29 percent improved. The United States ranked 19th, down one from 2016, with declines in checks on government powers and deepening discrimination.

Fundamental rights include the absence of discrimination, the right to life and security, due process, the freedom of expression and religion, the right to privacy, the freedom of association and labor rights.

“All signs point to a crisis not just for human rights, but for the human rights movement,” Yale professor of history and law Samuel Moyn told The Guardian the day the index was released. “Within many nations, these fundamental rights are falling prey to the backlash against a globalising economy in which the rich are winning. But human rights movements have not historically set out to name or shame inequality.”

This reflects the thesis of Moyn’s most recent book, Not Enough: Human Rights in an Unequal World.

Constraints on government powers, which measures the extent to which those who govern are bound by law, saw the second-greatest declines (64 countries out of 113 dropped). This is where the United States saw the greatest deterioration, the World Justice Project stated in a press release. “While all sub-factors in this dimension declined at least slightly from 2016, the score for lawful transition of power—based on responses to survey questions on confidence in national and local election processes and procedures—declined most markedly,” the press release stated.  

The United States also scored notably poorly on several measurements of discrimination.

The four Nordic countries—Denmark, Norway, Finland and Sweden—remained in the top four positions. New Zealand, Canada and Australia were the only top 10 countries outside of Europe.

“The WJP’s 2017–2018 Rule of Law Index received scant attention from U.S. corporate media,” Project Censored noted. The only coverage they found was a Newsweek article drawing on The Guardian’s coverage.


2. “Open-Source” Intelligence Secrets Sold to Highest Bidders

In March 2017, WikiLeaks released Vault 7, a trove of 8,761 leaked confidential CIA files about its global hacking programs, which WikiLeaks described as the “largest ever publication of confidential documents on the agency.” It drew significant media attention.

But almost no one noticed what George Eliason of OpEdNews pointed out.

“Sure, the CIA has all these tools available,” Eliason pointed out. “Yes, they are used on the public. The important part is (that) it’s not the CIA that’s using them. That’s the part that needs to frighten you.”

As Eliason went on to explain, the CIA’s mission prevents it from using the tools, especially on Americans.

“All the tools are unclassified, open-source, and can be used by anyone,” Eliason explained. “It makes them not exactly usable for secret-agent work. That’s what makes it impossible for them to use Vault 7 tools directly.”

Drawing heavily on more than a decade of reporting by Tim Shorrock for Mother Jones and The Nation, Eliason’s OpEdNews series reported on the explosive growth of private contractors in the intelligence community, which allows the CIA and other agencies to gain access to intelligence gathered by methods they’re prohibited from using.

In a 2016, report for The Nation, Shorrock estimated that 80 percent of an estimated 58,000 private intelligence contractors worked for the five largest companies. He concluded that “not only has intelligence been privatized to an unimaginable degree, but an unprecedented consolidation of corporate power inside U.S. intelligence has left the country dangerously dependent on a handful of companies for its spying and surveillance needs.”

Eliason reported how private contractors pioneered open-source intelligence by circulating or selling the information they gathered before the agency employing them had reviewed and classified it; therefore, “no one broke any laws.” As a result, according to Eliason’s second article, “People with no security clearances and radical political agendas have state-sized cyber tools at their disposal, (which they can use) for their own political agendas, private business, and personal vendettas.”

Corporate media reporting on Vault 7 sometimes noted but failed to focus on dangerous role of private contractors, Project Censored pointed out—with the notable exception of am op-ed in The Washington Post in which Shorrock reviewed his previous reporting and concluded that over-reliance on private intelligence contractors was “a liability built into our system that intelligence officials have long known about and done nothing to correct.”


3. World’s Richest One Percent Continue to Become Wealthier

In November 2017, Credit Suisse released its 8th Annual Global Wealth Report which The Guardian reported on under the headline, Richest 1% Own Half the World’s Wealth, Study Finds.

The wealth share of the world’s richest people increased “from 42.5 percent at the height of the 2008 financial crisis to 50.1 percent in 2017,” The Guardian reported, adding that “the biggest losers … are young people who should not expect to become as rich as their parents.”

“(Despite being more educated than their parents), millennials are doing less well than their parents at the same age, especially in relation to income, home ownership and other dimensions of well-being assessed in this report,” Rohner Credit Suisse Chairman Urs Rohner said. “We expect only a minority of high achievers and those in high-demand sectors such as technology or finance to effectively overcome the ‘millennial disadvantage.’”

“No other part of the wealth pyramid has been transformed as much since 2000 as the millionaire and ultra-high net worth individual (known as UHNWI) segments,” the report said. “The number of millionaires has increased by 170 percent, while the number of UHNWIs (individuals with net worth of $50 million or more) has risen five-fold, making them by far the fastest-growing group of wealth holders.”

There were of 2.3 million new dollar millionaires this year, taking the total to 36 million.

“At the other end of the spectrum, the world’s 3.5 billion poorest adults each have assets of less than $10,000,” The Guardian reported. “Collectively these people, who account for 70 percent of the world’s working age population, account for just 2.7 percent of global wealth.”

“Tremendous concentration of wealth and the extreme poverty that results from it are problems that affect everyone in the world, but wealth inequalities do not receive nearly as much attention as they should in the establishment press,” Project Censored noted. “The few corporate news reports that have addressed this issue—including an August 2017 Bloomberg article and a July 2016 report for CBS’s MoneyWatch—focused exclusively on wealth inequality within the United States. As Project Censored has previously reported, corporate news consistently covers the world’s billionaires while ignoring millions of humans who live in poverty.”


4. How Big Wireless Convinced Us Cell Phones and Wi-Fi Are Safe

Are cell phones and other wireless devices really as safe we’ve been led to believe? Don’t bet on it, according to decades of buried research reviewed in a March 2018 investigation for The Nation by Mark Hertsgaard and Mark Dowie.

“The wireless industry not only made the same moral choices that the tobacco and fossil-fuel industries did; it also borrowed from the same public-relations playbook those industries pioneered,” Hertsgaard and Dowie reported. “Like their tobacco and fossil-fuel brethren, wireless executives have chosen not to publicize what their own scientists have said about the risks of their products. … On the contrary, the industry—in America, Europe and Asia—has spent untold millions of dollars in the past 25 years proclaiming that science is on its side, that the critics are quacks, and that consumers have nothing to fear.”

Their report comes at the same time as several new developments are bringing the issue to the fore, including a Kaiser Permanente study (published December 2017 in Scientific Reports) finding much higher risks of miscarriage; a study in the October 2017 American Journal of Epidemiology, finding increased risk for glioma (a type of brain tumor); and a disclosure by the National Frequency Agency of France that nine out of 10 cell phones exceed government radiation safety limits when tested in the way they are actually used—next to the human body.

“The wireless industry has ‘war-gamed’ science by playing offense as well as defense, actively sponsoring studies that result in published findings supportive of the industry, while aiming to discredit competing research that raises questions about the safety of cellular devices and other wireless technologies,” Project Censored summarized. “When studies have linked wireless radiation to cancer or genetic damage, industry spokespeople have pointed out that the findings are disputed by other researchers.”

While some local media have covered the findings of a few selected studies, Project Censored notes, “the norm for corporate media is to report the telecom industry line—that is, that evidence linking Wi-Fi and cell phone radiation to health issues, including cancer and other medical problems, is either inconclusive or disputed. … As Hertsgaard and Dowie’s Nation report suggested, corporate coverage of this sort is partly how the telecom industry remains successful in avoiding the consequences of actions.”


5. The Washington Post Bans Employees from Using Social Media to Criticize Sponsors

On May 1, 2017, the Washington Post introduced a policy prohibiting its employees from criticizing its advertisers and business partners—and encouraging them to snitch on one another.

“A new social-media policy at The Washington Post prohibits conduct on social media that ‘adversely affects The Post’s customers, advertisers, subscribers, vendors, suppliers or partners,” Andrew Beaujon reported in The Washingtonian the next month. “In such cases, Post management reserves the right to take disciplinary action ‘up to and including termination of employment.’”

Beaujon also cited “a clause that encourages employees to snitch on one another: ‘If you have any reason to believe that an employee may be in violation of The Post’s Social Media Policy … you should contact The Post’s Human Resources Department.’”

At the time, the Washington-Baltimore News Guild, which represents the Post’s employees, was protesting the policy and seeking removal of the controversial parts in a new labor agreement. A follow-up report by Whitney Webb for MintPress News highlighted the broader possible censorship effects, since prohibiting social-media criticism could spill over into reporting as well.

“Among The Washington Post’s advertisers are corporate giants like GlaxoSmithKline, Bank of America and Koch Industries,” Webb wrote. “With the new policy, social-media posts criticizing GlaxoSmithKline’s habit of making false and misleading claims about its products, inflating prices and withholding crucial drug safety information from the government will no longer be made by Post employees.”

Beyond that, Webb suggested it could protect the CIA, which has a $600 million contract with Amazon Web Services. Amazon CEO Jeff Bezos purchased the Post four months after that contract was signed.

“While criticism of the CIA is not technically prohibited by the new policy, former Post reporters have suggested that making such criticisms could endanger one’s career,” Webb noted.

“Corporate news coverage of The Washington Post’s social media policy has been extremely limited,” Project Censored noted.

It’s part of a much broader problem, identified in Jeremy Iggers’ 1998 book, Good News, Bad News: Journalism Ethics and The Public Interest. Iggers argued that journalism ethics focused on individual reporters completely missed the larger issue of corporate conflicts whose systemic effects fundamentally undermine journalism’s role in a democracy.


6. Russiagate: A Two-Headed Monster of Propaganda and Censorship

Is Russiagate a censored story? In my view, not exactly. This entry seems to reflect a well-intentioned effort to critically examine fake-news-related issues within a “censored story” framework. It’s important that these issues be raised—which is one reason why I suggested above that Project Censored add “fake news” as a new analytical category to examine annually along with its censored stories list, “junk food news” and “news abuse.”

What Project Censored calls attention to is important: “Corporate media coverage of Russiagate has created a two-headed monster of propaganda and censorship. By saturating news coverage with a sensationalized narrative, Russiagate has superseded other important, newsworthy stories.”

As a frustrated journalist with omnivorous interests, I heartily concur—but what’s involved is too complex to simply be labelled “propaganda.” On the other hand, the censorship of alternative journalistic voices is a classic, well-defined Project Censored story, which suffers from the attempt to fit both together.

In April 2017, Aaron Maté reported for The Intercept on a quantitative study of MSNBC’s The Rachel Maddow Show from Feb. 20 to March 31, 2017 which found that “Russia-focused segments accounted for 53 percent of these broadcasts.” Maté wrote: “Maddow’s Russia coverage has dwarfed the time devoted to other top issues, including Trump’s escalating crackdown on undocumented immigrants (1.3 percent of coverage); Obamacare repeal (3.8 percent); the legal battle over Trump’s Muslim ban (5.6 percent), a surge of anti-GOP activism and town halls since Trump took office (5.8 percent), and Trump administration scandals and stumbles (11 percent).”

Well and good. But is this propaganda?

At Truthdig, Norman Solomon wrote: “As the cable news network most trusted by Democrats as a liberal beacon, MSNBC plays a special role in fueling rage among progressive-minded viewers toward Russia’s ‘attack on our democracy’ that is somehow deemed more sinister and newsworthy than corporate dominance of American politics (including Democrats), racist voter suppression, gerrymandering and many other U.S. electoral defects all put together.”

Also true. But it is not so much propaganda as Project Censored’s broader category of “news abuse,” which includes propaganda and spin among other forms of “distraction to direct our attention away from what we really need to know.” To fully grasp what’s involved requires a more complex analysis. On the other hand, the censorship of alternative journalistic voices is far more clear-cut and straightforward.

In a report for Fairness and Accuracy in Reporting, Robin Andersen examined Russiagate-inspired censorship moves by Twitter, Google and others. A key initial target of this censorship was RT.

"RT’s reporting bears striking similarities to alternative and independent media content, and that is why letting the charges against RT stand unexamined is so dangerous," Andersen noted.

In fact, the government’s intelligence report on RT included its reporting on the dangers of fracking as part of its suspect activity. Beyond that, the spill-over suppression was dramatic: “Yet in the battle against fake news, much of the best, most accurate independent reporting is disappearing from Google searches,” Anderson said. “The World Socialist Web Site (8/2/17) reported that Google’s new search protocol is restricting access to leading independent, left-wing, progressive, anti-war and democratic rights websites. The estimated declines in traffic generated by Google searches for news sites are striking.”

There were declines for AlterNet.org (63 percent), DemocracyNow.org (36 percent), CounterPunch.org (21 percent), ConsortiumNews.com (47 percent), MediaMatters.org (42 percent), and TheIntercept.com (19 percent), among others.

“Many people suffer when lies are reported as facts, but it seems that corporate media are the only ones that profit when they reinforce blind hostility—against not only Russia, but also legitimate domestic dissent,” Project Censored noted.


7. Regenerative Agriculture as “Next Stage” of Civilization

The world’s agricultural and degraded soils have the capacity to recover 50 to 66 percent of the historic carbon release into the atmosphere, according to a 2004 paper in Science—actually reversing the processes driving global warming.

A set of practices known as “regenerative agriculture” could play a major role in accomplishing that, while substantially increasing crop yields as well, according to information compiled and published by Ronnie Cummins, director of the Organic Consumers Association, in May 2017.

“For thousands of years, we grew food by depleting soil carbon, and in the last hundred or so, the carbon in fossil fuel as well,” food and farming writer Michael Pollan wrote. “But now we know how to grow even more food while at the same time returning carbon and fertility and water to the soil

Cummins, who’s also a founding member of Regeneration International, wrote that regenerative agriculture offers a “world-changing paradigm” that can help solve many of today’s environmental and public-health problems. As The Guardian explained: “Regenerative agriculture comprises an array of techniques that rebuild soil and, in the process, sequester carbon. Typically, it uses cover crops and perennials so that bare soil is never exposed, and grazes animals in ways that mimic animals in nature. It also offers ecological benefits far beyond carbon storage: it stops soil erosion, re-mineralizes soil, protects the purity of groundwater and reduces damaging pesticide and fertilizer runoff.”

“We can’t really solve the climate crisis (and the related soil, environmental, and public health crisis) without simultaneously solving the food and farming crisis,” Cummings wrote. “We need to stop putting greenhouse gas pollution into the atmosphere (by moving to 100 percent renewable energy), but we also need to move away from chemical-intensive, energy-intensive food, factory farming and land use, as soon as possible.”

In addition to global warming, there are profound economic and social justice concerns involved.

“Out-of-touch and out-of-control governments of the world now take our tax money and spend $500 billion ... a year mainly subsidizing 50 million industrial farmers to do the wrong thing,” Cummins wrote. “Meanwhile, 700 million small family farms and herders, comprising the 3 billion people who produce 70 percent of the world’s food on just 25 percent of the world’s acreage, struggle to make ends meet…. The basic menu for a Regeneration Revolution is to unite the world’s 3 billion rural farmers, ranchers and herders with several billion health, environmental and justice-minded consumers to overturn ‘business as usual’ and embark on a global campaign of cooperation, solidarity and regeneration.”

If you’ve never heard of it before, don’t be surprised. “Regenerative agriculture has received limited attention in the establishment press, highlighted by only two recent, substantive reports in the New York Times Magazine and Salon,” Project Censored wrote.


8. Congress Passes Intrusive Data-Sharing Law Under Cover of Spending Bill

On March 21, House Republicans released a 2,232-page omnibus spending bill. It passed both houses and was signed into law in two days. Attached to the spending provisions that made it urgent “must-pass” legislation was the completely unrelated Clarifying Lawful Overseas Use of Data Act of 2018, also known as the CLOUD Act.

“The CLOUD Act enables the U.S. government to acquire data across international borders regardless of other nations’ data-privacy laws and without the need for warrants,” Project Censored summarized.

It also significantly weakens protections against foreign-government actions.

“It was never reviewed or marked up by any committee in either the House or the Senate,” the Electronic Frontier Foundation’s David Ruiz wrote. “It never received a hearing. … It was robbed of a stand-alone floor vote because Congressional leadership decided, behind closed doors, to attach this unvetted, unrelated data bill to the $1.3 trillion government spending bill.” Congressional leadership failed to listen to citizen concerns, Ruiz wrote, with devastating consequences:

“Because of this failure, U.S. and foreign police will have new mechanisms to seize data across the globe. Because of this failure, your private emails, your online chats, your Facebook, Google, Flickr photos, your Snapchat videos, your private lives online, your moments shared digitally between only those you trust, will be open to foreign law enforcement without a warrant and with few restrictions on using and sharing your information, privacy and human rights,” concluded Robyn Greene, who reported for Just Security.

“The little corporate news coverage that the CLOUD Act received tended to put a positive spin on it,” Project Censored noted. “(A glowing Washington Post op-ed) made no mention of potential risks to the privacy of citizens’ personal data, (and a CNET report that) highlighted the liberties that the CLOUD Act would provide corporations by simplifying legal issues concerning overseas servers.”

Because of this failure, U.S. laws will be bypassed on U.S. soil. Greene noted that the CLOUD Act negates protections of two interrelated existing laws. It creates an exception to the Stored Communications Act that allows certified foreign governments to request personal data directly from U.S. companies.

“This exception enables those countries to bypass the Mutual Legal Assistance Treaty process, which protects human rights by requiring foreign governments to work with the Department of Justice to obtain warrants from U.S. judges before they can access that data for their criminal investigations,” Greene explained. “The version of the bill that was included in the omnibus does include some improvements over the earlier version to help to mitigate the risks of bypassing the MLAT process … two changes (that) are important improvements. … Several other concerns have been left entirely unaddressed.”

“While the bill sponsors did try to address some of the concerns that have been raised, the improvements are not enough to shift the balance so that the CLOUD Act will be a boon, rather than a threat, to privacy and human rights,” Greene concluded.


9. Indigenous Communities Around World Helping to Win Legal Rights of Nature

In March 2017, the government of New Zealand ended a 140-year dispute with an indigenous Maori tribe by enacting a law that officially recognized the Whanganui River, which the tribe considers their ancestor, as a living entity with rights.

The Guardian reported it as “a world-first,” although the surrounding Te Urewera National Park had been similarly recognized in a 2014 law, and the U.S. Supreme Court came within one vote of potentially recognizing such a right in the 1972 case Sierra Club v. Morton, expressed in a dissent by Justice William O. Douglas. In addition, the broader idea of “rights of nature” has been adopted in Ecuador, Bolivia and by some American communities, noted Mihnea Tanasescu, writing for The Conversation.

The tribe’s perspective was explained to The Guardian by its lead negotiator, Gerrard Albert.

“We consider the river an ancestor and always have,” Albert said. “We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as in indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”

But that could be just the beginning. “It is a critical precedent for acknowledging the Rights of Nature in legal systems around the world,” Kayla DeVault reported for YES! Magazine. Others are advancing this perspective, DeVault wrote: “In response to the Standing Rock Sioux battle against the Dakota Access pipeline, the Ho-Chunk Nation of Wisconsin amended its constitution to include the Rights of Nature. This is the first time a North American tribe has used a Western legal framework to adopt such laws. Some American municipalities have protected their watersheds against fracking by invoking Rights of Nature.”

“A few corporate media outlets have covered the New Zealand case and subsequent decisions in India,” Project Censored noted. “However, these reports have not provided the depth of coverage found in the independent press or addressed how legal decisions in other countries might provide models for the United States.”


10. FBI Racially Profiling “Black Identity Extremists”

While white supremacists were preparing for the “Unite the Right” demonstration in Charlottesville, which resulted in the murder of Heather Heyer in August 2017, the FBI’s counterterrorism division produced an intelligence assessment warning of a very different—though actually non-existent threat: “Black Identity Extremists.” The report appeared to be the first time the term had been used to identify a movement, according to Foreign Policy magazine, which broke the story.

“But former government officials and legal experts said no such movement exists, and some expressed concern that the term is part of a politically motivated effort to find an equivalent threat to white supremacists,” Foreign Policy reported.

“The use of terms like ‘black identity extremists’ is part of a long-standing FBI attempt to define a movement where none exists,” said former FBI agent Mike German, who now works for the Brennan Center for Justice. “Basically, it’s black people who scare them.”

“It’s classic Hoover-style labeling with little bit of maliciousness and euphemism wrapped up together,” said William Maxwell, a Washington University professor working on a book about FBI monitoring of black writers. “The language … strikes me as weird and really a continuation of the worst of Hoover’s past.”

“There is a long tradition of the FBI targeting black activists and this is not surprising,” Black Lives Matter activist DeRay McKesson told Foreign Policy.

A former homeland security official told them that carelessly connecting unrelated groups will make it harder for law enforcement to identify real threats. It’s so convoluted that it’s compromising officer safety, the former official said.

“The corporate media (has) covered the FBI report on ‘black identity extremists’ in narrow or misleading ways,” Project Censored noted, citing examples from The New York Times, Fox News and NBC News. “Coverage like this both draws focus away from the active white supremacist movement and feeds the hate and fear on which such a movement thrive.”

Published in National/International

Government transparency laws like the Freedom of Information Act exist to enforce the public’s right to inspect records so we can all figure out what in the heck is being done in our name and with our tax dollars.

But when a public agency ignores, breaks or twists the law, one’s recourse varies by jurisdiction. In some states, when an official improperly responds to your public records request, you can appeal to a higher bureaucratic authority or seek help from an ombudsperson. In most states, you can take the dispute to court.

Public shaming and sarcasm, however, are tactics that can be applied anywhere.

The California-based news organization Reveal tweets photos of chickpeas or coffee beans to represent each day a FOIA response is overdue, and asks followers to guess how many there are. The alt-weekly DigBoston has sent multiple birthday cakes and edible arrangements to local agencies on the one-year anniversary of delayed public-records requests. And here, at the Electronic Frontier Foundation, we give out The Foilies during Sunshine Week, an annual celebration of open-government advocacy.

These fourth-annual Foilies recognize the worst responses to records requests, outrageous efforts to stymie transparency, and the most absurd redactions. These tongue-in-cheek pseudo-awards are hand-chosen by EFF’s team based on nominations from fellow transparency advocates, participants in #FOIAFriday on Twitter, and, in some cases, our own personal experience.

If you haven’t heard of us before: EFF is a nonprofit based in San Francisco that works on the local, national and global level to defend and advance civil liberties as technology develops. As part of this work, we file scores of public-records requests and take agencies like the U.S. Department of Justice, the Department of Homeland Security, and the Los Angeles Police Department to court to liberate information that belongs to the public.

Because shining a spotlight is sometimes the best the litigation strategy, we are pleased to announce the 2018 winners of The Foilies.

The Mulligan Award: President Donald J. Trump

Since assuming the presidency, Donald Trump has skipped town for more than 58 days to visit his Mar-a-Lago resort in Florida, according to sites like trumpgolfcount.com and NBC. He calls it his “Winter White House,” where he wines and dines and openly strategizes on how to respond to North Korean ballistic missile tests with the Japanese prime minister—for all his paid guests to see and post on Facebook. The fact that Trump’s properties have become secondary offices and remain a source of income for his family raises significant questions about transparency, particularly if club membership comes with special access to the president.

To hold the administration accountable, Citizens for Responsibility and Ethics in Washington filed a FOIA request for the visitor logs, but received little in response. CREW sued, and after taking another look, the Secret Service provided details about details about the Japanese leader’s entourage. As Politico and others reported, the Secret Service ultimately admitted they’re not actually keeping track. The same can’t be said about Trump’s golf score.

FOIA Fee of the Year: Texas Department of Criminal Justice

Sexual assault in prison is notoriously difficult to measure due to stigma, intimidation and apathetic bureaucracy. Nevertheless, MuckRock reporter Nathanael King made a valiant effort to find out whatever he could about these investigations in Texas, a state once described by the Dallas Voice as the “Prison Rape Capital of the U.S.” However, the numbers that the Texas Department of Criminal Justice came back with weren’t quite was he was expecting. The TDCJ demanded he fork over a whopping $1,132,024.30 before the agency would release 260,000 pages of records that it said would take 61,000 hours of staff time to process. That, in itself, may be an indicator of the scope of the problem.

However, to the agency’s credit, they pointed the reporter in the direction of other statistical records compiled to comply with the federal Prison Rape Elimination Act, which the TDCJ provided for free.

Best Set Design in a Transparency Theater Production: Atlanta Mayor Kasim Reed

“Transparency theater” is the term we use to describe an empty gesture meant to look like an agency is embracing open government, when really it’s meant to obfuscate. For example, an agency may dump an overwhelming number of documents and put them on display for cameras. But because there are so many records, the practice actually subverts transparency by making it extremely difficult to find the most relevant records in the haystack.

Such was the case with Atlanta Mayor Kasim Reed, who released 1.476 million documents about a corruption probe to show his office was supporting public accountability.

“The documents filled hundreds of white cardboard boxes, many stacked up waist-high against walls and spread out over rows of tables in the cavernous old City Council chamber,” Atlanta Journal-Constitution reporter Leon Stafford wrote. “Reed used some of the boxes as the backdrop for his remarks, creating a 6-foot wall behind him.”

Journalists began to dig through the documents and quickly discovered that many were blank pages or fully redacted—and in some cases, the type was too small for anyone to read. AJC reporter J. Scott Trubey’s hands became covered in paper-cut gore. Ultimately, the whole spectacle was a waste of trees: The records already existed in a digital format. It’s just that a couple of hard drives on a desk don’t make for a great photo op.

Special Achievement for Analog Conversion: Former Seattle Mayor Ed Murray

In the increasingly digital age, more and more routine office communication is occurring over mobile devices. With that in mind, transparency activist Phil Mocek filed a request for text messages (and other app communications) sent or received by now-former Seattle Mayor Ed Murray and many of his aides. The good news is the city at least partially complied. The weird news is that rather than seek the help of an IT professional to export the text messages, some staff members simply plopped a cell phone onto a photocopier.

Mocek tells EFF he’s frustrated that the mayor’s office refused to search their personal devices for relevant text messages. They argued that city policy forbids using personal phones for city business—and, of course, no one would violate those rules. However, we’ll concede that thwarting transparency is probably the least of the allegations against Murray, who resigned in September 2017 amid a child sex-abuse scandal.

The Winger Award for FOIA Feet Dragging: FBI

Thirty years ago, the hair-rock band Winger released “Seventeen”—a song about young love that really hasn’t withstood the test of time. Similarly, the FBI’s claim that it would take 17 years to produce a series of records about civil rights-era surveillance also didn’t withstand the judicial test of time.

As Politico reported, George Washington University professor and documentary filmmaker Nina Seavey asked for records about how the FBI spied on anti-war and civil rights activists in the 1960s and 1970s. The FBI claimed they would only process 500 pages a month, which would mean the full set of 110,000 pages wouldn’t be complete until 2034.

Just as Winger’s girlfriend’s dad disapproved in the song, so did a federal judge, writing in her opinion: “The agency's desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work.”

The Prime Example Award: Midcoast Regional Redevelopment Authority

When Amazon announced last year it was seeking a home for its second headquarters, municipalities around the country rushed to put together proposals to lure the tech giant to their region. Knowing that in Seattle, Amazon left a substantial footprint on a community (particularly around housing), transparency organizations like MuckRock and the Lucy Parsons Labs followed up with records requests for these cities’ sales pitches.

More than 20 cities, such as Chula Vista, Calif., and Toledo, Ohio, produced the records—but other agencies, including Albuquerque, N.M., and Jacksonville, Fla, refused to turn over the documents. The excuses varied, but perhaps the worst response came from Maine’s Midcoast Regional Redevelopment Authority. The agency did provide the records, but claimed that by opening an email containing 37 pages of documents, MuckRock had automatically agreed to pay an exorbitant $750 in “administrative and legal fees.” Remind us to disable one-click ordering.

El Premio del Desayuno Más Redactado: CIA

Buzzfeed reporter Jason Leopold has filed thousands of records requests over his career, but one redaction has become his all-time favorite. Leopold was curious whether CIA staff members are assailed by the same stream of office announcements as every other workplace. So, he filed a FOIA request—and holy Hillenkoetter, do they. Deep in the document set was an announcement that “the breakfast burritos are back by popular demand,” with a gigantic redaction covering half the page, citing a personal privacy exemption. What are they hiding? Is Anthony Bourdain secretly a covert agent? Did David Petraeus demand extra guac? This could be the CIA’s greatest Latin American mystery since Nicaraguan Contra drug-trafficking.

The Courthouse Bully Award: Every Agency Suing a Requester

As director of the privacy-advocacy group We See You Watching Lexington, Michael Maharrey filed a public records request to find out how his city was spending money on surveillance cameras. After the Lexington Police Department denied the request, he appealed to the Kentucky Attorney General’s office—and won.

Rather than listen to the state’s top law enforcement official, Lexington police hauled Maharrey into court.

As the Associated Press reported last year, lawsuits like these are reaching epidemic proportions. The Louisiana Department of Education sued a retired educator who was seeking school enrollment data for his blog. Portland Public Schools in Oregon sued a parent who was curious about employees paid while on leave for alleged misconduct. Michigan State University sued ESPN after it requested police reports on football players allegedly involved in a sexual assault. Meanwhile, the University of Kentucky and Western Kentucky University have each sued their own student newspapers whose reporters were investigating sexual misconduct by school staff.

These lawsuits are despicable. At their most charitable, they expose huge gaps in public-records laws that put requesters on the hook for defending lawsuits they never anticipated. At their worst, they are part of a systematic effort to discourage reporters and concerned citizens from even thinking of filing a public records request in the first place.

The Lawless Agency Award: U.S. Customs and Border Protection

In the chaos of President Trump’s immigration ban in early 2017, the actions of U.S. Customs and Border Protection agents and higher-ups verged on unlawful. And if CBP officials already had their mind set on violating all sorts of laws and the Constitution, flouting FOIA seems like small potatoes.

Yet that’s precisely what CBP did when the ACLU filed a series of FOIA requests to understand local CBP agents’ actions as they implemented Trump’s immigration order. ACLU affiliates throughout the country filed 18 separate FOIA requests with CBP, each of which targeted records documenting how specific field offices, often located at airports or at physical border crossings, were managing and implementing the ban. The requests made clear that they were not seeking agency-wide documents, but rather wanted information about each specific location’s activities.

CBP ignored the requests and, when several ACLU affiliates filed 13 different lawsuits, CBP sought to further delay responding by asking a federal court panel to consolidate all the cases into a single lawsuit. To use this procedure—which is usually reserved for class actions or other complex national cases—CBP essentially misled courts about each of the FOIA requests and claimed each was seeking the exact same set of records.

The court panel saw through CBP’s shenanigans and refused to consolidate the cases. But CBP basically ignored the panel’s decision, acting as though it had won. First, it behaved as though all the requests came from a single lawsuit by processing and batching all the documents from the various requests into a single production given to the ACLU. Second, it selectively released records to particular ACLU attorneys, even when those records weren’t related to their lawsuits about activities at local CBP offices.

Laughably, CBP blames the ACLU for its self-created mess, calling their requests and lawsuits “haphazard” and arguing that the ACLU and other FOIA requesters have strained the agency’s resources in seeking records about the immigration ban. None of that would be a problem if CBP had responded to the FOIA requests in the first place. Of course, the whole mess could also have been avoided if CBP never implemented an unconstitutional immigration order.

The Franz Kafka Award for Most Secrets About Secretive Secrecy: The CIA

The CIA’s aversion to FOIA is legendary, but this year, the agency doubled down on its mission of thwarting transparency. As Emma Best detailed for MuckRock, the intelligence agency had compiled a 20-page report that laid out at least 126 reasons why it could deny FOIA requests that officials believed would disclose the agency’s “sources and methods.”

But that report? Yeah, it’s totally classified. So not only do you not get to know what the CIA’s up to, but its reasons for rejecting your FOIA request are also a state secret.

Special Recognition for Congressional Overreach: U.S. House of Representatives

Because Congress wrote the Freedom of Information Act, it had the awesome and not-at-all-a-conflict-of-interest power to determine which parts of the federal government must obey it. That’s why it may not shock you that since passing FOIA more than 50 years ago, Congress has never made itself subject to the law.

So far, requesters have been able to fill in the gaps by requesting records from federal agencies that correspond with Congress. For example, maybe a lawmaker writes to the U.S. Department of Puppies asking for statistics on labradoodles. That adorable email chain wouldn’t be available through Congress, but you could get it from the Puppies Department’s FOIA office. (Just to be clear: This isn’t a real federal agency. We just wish it was.)

In 2017, it’s become increasingly clear that some members of Congress believe that FOIA can never reach anything they do, even when they or their staffs share documents or correspond with federal agencies. The House Committee on Financial Services sent a threatening letter to the Treasury Department telling them to not comply with FOIA. After the Department of Health and Human Services and the Office of Management and Budget released records that came from the House Ways and Means Committee, the House intervened in litigation to argue that their records cannot be obtained under FOIA.

In many cases, congressional correspondence with agencies is automatically covered by FOIA, and the fact that a document originated with Congress isn’t by itself enough to shield it from disclosure. The Constitution says Congress gets to write laws; it’s just too bad it doesn’t require Congress to actually read them.

The Data Disappearance Award: Trump Administration

Last year, we gave the “Make America Opaque Again Award” award to newly inaugurated President Trump for failing to follow tradition and release his tax returns during the campaign. His talent for refusing to make information available to the public has snowballed into an administration that deletes public records from government websites. From the National Park Service’s climate action plans for national parks, to the USDA animal welfare datasets, to nonpartisan research on the corporate income tax, the Trump Administration has decided to make facts that don’t support its positions disappear. The best example of this vanishing game is the Environmental Protection Agency’s removal of the climate change website in April 2017, which only went back online after being scrubbed of climate change references, studies and information to educate the public.

The Danger in the Dark Award: The Army Corps of Engineers

When reporters researching the Dakota Access Pipeline on contested tribal lands asked for the U.S. Army Corps of Engineers’ environmental impact statement, they were told nope, you can’t have it. Officials cited public safety concerns as reason to deny the request: “The referenced document contains information related to sensitive infrastructure that if misused could endanger peoples’ lives and property.”

Funny thing is … the Army Corps had already published the same document on its website a year earlier. What changed in that year? Politics. The Standing Rock Sioux, other tribal leaders and “Water Protector” allies had since staged a multi-month peaceful protest and sit-in to halt construction of the pipeline.

The need for public scrutiny of the document became clear in June when a U.S. federal judge found that the environmental impact statement omitted key considerations, such as the impact of an oil spill on the Standing Rock Sioux’s hunting and fishing rights as well as the impact on environmental justice.

The Business Protection Agency Award: The Food and Drug Administration

The FDA’s mission is to protect the public from harmful pharmaceuticals, but they’ve recently fallen into the habit of protecting powerful drug companies rather than informing people about potential drug risks.

This past year, Charles Seife at the Scientific American requested documents about the drug-approval process for a controversial drug to treat Duchenne muscular dystrophy (DMD). The agency cited business exemptions and obscured listed side effects, as well as testing methodology for the drug, despite claims that the drug company manipulated results during product trials and pressured the FDA to push an ineffective drug onto the market. The agency even redacted portions of a Bloomberg Businessweek article about the drug, because the story provided names and pictures of teenagers living with DMD.

The Exhausted Mailman Award: Bureau of Indian Affairs

Requesting information that has already been made public should be quick and fairly simple—but not when you’re dealing with the Bureau of Indian Affairs. A nomination sent into EFF requested all logs of previously released FOIA information by the BIA. The requester even stated that he’d prefer links to the information, which agencies typically provide for records they have already put on their website. Instead, BIA printed 1,390 pages of those logs, stuffed them into 10 separate envelopes, and sent them via registered mail for a grand total cost to taxpayers of $179.

Crime and Punishment Award: Martin County Commissioners, Florida

Generally, The Foilies skew cynical, because in many states, open-records laws are toothless and treated as recommendations rather than mandates. One major exception to the rule is Florida, where violations of its “Sunshine Law” can result in criminal prosecution.

That brings us to Martin County Commissioners Ed Fielding and Sarah Heard, and former Commissioner Anne Scott, each of whom were booked into jail in November on multiple charges related to violations of the state’s public-records law. As Jose Lambiet of GossipExtra and the Miami Herald reported, the case emerges from a dispute between the county and a mining company that already resulted in taxpayers footing a $500,000 settlement in a public-records lawsuit. Among the allegations, the officials were accused of destroying, delaying and altering records.

The cases are set to go to trial in December 2018, Lambiet told EFF. Of course, people are innocent until proven guilty, but that doesn’t make public officials immune to The Foilies.

The Square Footage Award: Jacksonville Sheriff’s Office

When a government mistake results in a death, it’s important for the community to get all the facts. In the case of 63-year-old Blane Land, who was fatally hit by a Jacksonville sheriff patrol car, those facts include dozens of internal investigations against the officer behind the wheel. The officer, Tim James, has since been arrested on allegations that he beat a handcuffed youth, raising the question of why he was still on duty after the vehicular fatality.

Land’s family hired an attorney, and the attorney filed a request for records. Rather than having a complete airing of the cop’s alleged misdeeds, the sheriff came back with a demand for $314,687.91 to produce the records, almost all of which was for processing and searching by the internal affairs division. Amid public outcry over the prohibitive fee, the sheriff took to social media to complain about how much work it would take to go through all the records in the 1,600-foot cubic storage room filled with old-school filing cabinets.

The family is not responsible for the sheriff’s filing system or feng shui, nor is it the family’s fault that the sheriff kept an officer on the force as the complaints—and the accompanying disciplinary records—stacked up.

These Aren’t the Records You’re Looking for Award: San Diego City Councilmember Chris Cate

Shortly after last year’s San Diego Comic-Con and shortly before the release of Star Wars: The Last Jedi, the city of San Diego held a ceremony to name a street after former resident and actor Mark Hamill. A private citizen (whose day job involves writing The Foilies) wanted to know: How does a Hollywood star get his own roadway?

The city produced hundreds of pages related to his request that showed how an effort to change the name of Chargers Boulevard after the football team abandoned the city led to the creation of Mark Hamill Drive. The document set even included Twitter direct messages between City Councilmember Chris Cate and the actor. However, Cate used an ineffective black marker to redact, accidentally releasing Hamill’s cell phone number and other personal contact details.

As tempting as it was to put Luke Skywalker (and the voice of the Joker) on speed dial, the requester did not want to be responsible for doxxing one of the world’s most beloved actors. He alerted Cate’s office of the error, which then re-uploaded properly redacted documents.

The Foilies were compiled by Electronic Frontier Foundation Senior Investigative Researcher Dave Maass, Staff Attorney Aaron Mackey, and Frank Stanton Fellow Camille Fischer. Illustrations by EFF Art Director Hugh D'Andrade. For more on our work, visit eff.org.

Published in Features

While Giovanni Ribisi capably stars as the title character in the new Amazon series Sneaky Pete, the reason you will probably turn this one on is the return of Bryan Cranston to TV.

Cranston is a co-creator and supporting actor in this funny, original story about a con man (Ribisi) who assumes the identity of his cellmate and goes to live with the cellmate’s family upon his release from prison. He finds himself involved in the family’s bail-bond company, while trying to elude a crime lord (the always-awesome Cranston) to whom he owes money.

The pilot is good, but the show really takes off in the following couple of episodes. Cranston has a flashback scene that rivals the great work he did on Breaking Bad. It’s that good. Ribisi makes for a great central character, but the show goes into the stratosphere when Cranston shows up.

The first, 10-episode season of Sneaky Pete—which has already been renewed for a second season—is currently streaming on Amazon.

Published in DVDs/Home Viewing