CVIndependent

Mon07222019

Last updateTue, 18 Sep 2018 1pm

When Carol Dahmen discovered the CVS receipt draped across the counter of her Carmichael kitchen, she couldn’t resist pulling out her tape measure to document it.

Her husband had purchased one single prescription. The receipt, she discovered, stretched on to contain 11 coupons before topping out at an astonishing 4 feet, 8 inches—the height of Olympic champion gymnast Simone Biles.

“This receipt is ridiculous and unnecessary,” Dahmen tweeted, endorsing the idea of scrapping paper receipts for emailed versions.

California lawmakers are considering just such a proposal—a bill by Democratic Assemblyman Phil Ting of San Francisco that would make emailed receipts the default for businesses grossing more than $1 million beginning in 2022. Businesses breaking the rule could be fined $25 a day, and up to $300 a year. Customers could still get a paper receipt, but they would have to request one—which some would undoubtedly do, rather than share their email addresses with many merchants.

The state already bans single-use plastic bags and this year, and mandated that plastic straws be available by request only. If the default e-receipt bill passes, California would once again become the first in the nation to crack down on another ubiquitous product of modern existence.

“They’re wasteful, and they’re toxic,” Ting said about receipts. “Their lack of recyclability really makes them problematic.”

Receipts increasingly are made of thermal paper, and thus printed without ink. A chemical sometimes used to coat thermal paper, Bisphenol A (BPA), mimics estrogen and has been linked to cancer; in 2012, the U.S. Food and Drug Administration banned its use in baby bottles. Receipt paper now more commonly contains Bisphenol S (BPS), a replacement for BPA that some recent studies, including one from UCLA, indicate may be just as harmful.

Opponents say this is yet another hurdle for California small businesses, and a privacy concern for customers.

“It’s trying to reduce paper waste, and that’s commendable, but we just want to make sure that in the process, we’re not creating a big digital trail for everyone who goes into a drug store,” said Bennett Cyphers, a staff technologist at the Electronic Frontier Foundation, a nonprofit digital rights group. “If the business needs to collect some kind of contact information, what do they do with that data? It’s going to be a field day for data brokers, data about what people buy, and who’s buying what and when. We’d really like that not to be the case.”

Receipts account for millions of pounds of trash waste, and an estimated 9 billion gallons of water, according to Green America, an environmental group supporting the bill.

“We don’t really need to use that paper and definitely that water,” Ting said. “We can really save those resources for something else.”

Advocates say Ting’s bill is an easy remedy. “It’s tackling one of the lowest hanging fruit,” said Nick Lapis, director of advocacy for Californians Against Waste.

Others suggest the bill could go even further. Republican Heath Flora of Ripon said in a written statement the bill could apply to more than just businesses.

“I’m open to the idea of doing away with paper receipts, but right now, this bill only applies to businesses and not the state government,” he said. “We should also have a conversation about what to tell the folks who aren’t very tech-savvy, or who otherwise don’t have access to internet services.”

But some say the bill could burden businesses in more rural parts of the state. Just 59 percent of rural households have broadband internet access, according to a report by the Public Policy Institute of California.

“To do it electronically and mandate that for everybody is, quite frankly, going to be burdensome on business,” said GOP Assemblyman Brian Dahle of Bieber. “Every day, it’s something new with the labor code. Every day, it’s something new with the regulatory environment, and this is just one more add on, making it tough to stay in business in California.”

Dahle contends that counties in his district don’t have the infrastructure in place to rely that heavily on the internet. He said his wife ran a plant nursery, and while the business had internet, the connection was weak.

Data breaches might make customers hesitant to dole out their email. Prominent business chains such as Chipotle and Whole Foods have experienced data breaches, as did Target, impacting 41 million customers.

“Our emails have been shared with the world and I don’t like that,” Dahle said. “At the end of the day, there are a lot of us who don’t want the whole world having our email.”

For those hesitant to surrender their emails to every business they patronize, Ting said, customers could simply request paper receipts.

Other opponents say the bill would make it harder for customers to locate proofs of purchase.

“Unlike other retailers, we’re subject to this state law where we’ve actually encouraged people to bring in their own bags or not use bags,” said Aaron Moreno, the senior director of government relations for the California Grocers Association. “We need to have a way to tell whether someone has bought something.”

As other retailers go, CVS is easily lampooned for printing human-sized proofs of purchase—and not just by Dahmen, a political advertising consultant who isn’t working on Ting’s bill. Customers have shared countless memes about the practical uses they have discovered for their voluminous CVS receipts (an Ohio man unfurled one as a replacement for a missing strip on the vertical blinds in his bedroom) and obscure "facts" about CVS receipts (“the sun is approximately 8 CVS receipts from earth”).

While the company does allow customers to receive electronic receipts upon request, many customers are not aware of that option or may not want to use it.

Last year, a CNBC reporter put the CEO of CVS on the spot while pulling out her own voluminous CVS receipt.

“What are we going to do about this?” CNBC’s Bertha Coombs asked.

CEO Larry Merlo urged her to enroll in the company’s digital receipt program. Coombs said she already was. Merlo smiled, and said: “Point taken.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Environment

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

“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

A thick fog is rolling in over Sunshine Week (March 12-18), the annual event when government transparency advocates raise awareness about the importance of access to public records.

We are entering an age when officials at the highest levels seek to discredit critical reporting with “alternative facts,” “fake news” slurs and selective access to press conferences—while making their own claims without providing much in the way to substantiate them.

But no matter how much the pundits claim we’re entering a “post-truth” era, it is crucial we defend the idea of proof. Proof is in the bureaucratic paper trails. Proof is in the accounting ledgers, the legal memos, the audits and the police reports. Proof is in the data. When it comes to government actions, that proof is often obtained by leveraging laws like the Freedom of Information Act (FOIA) and state-level public records laws—except when government officials seek to ignore the rules to suppress evidence.

While the attacks on transparency today may be worse than ever, they are nothing new. As award-winning investigative reporter Shane Bauer recently posted on Twitter: “I’ve been stonewalled by the government throughout my journalistic career. I’m seriously baffled by people acting like this is brand new.”

For the third year, the Electronic Frontier Foundation presents “The Foilies,” our anti-awards identifying the times when access to information has been stymied, or when government agencies have responded in the most absurd ways to records requests. Think of it as the Golden Raspberries, but for government transparency, where the bad actors are actually going off script to deny the public the right to understand what business is being conducted on their behalf.

To compile these awards, EFF solicited nominations from around the country and scoured through news stories and the #FOIAFriday Twitter threads to find the worst, the silliest and the most ridiculous responses to request for public information.

The Make America Opaque Again Award: President Donald Trump

A commitment to public transparency should start at the top.

But from the beginning of his campaign, President Trump has instead committed to opacity by refusing to release his tax returns, citing concerns about an ongoing IRS audit. Now that he’s in office, Trump’s critics, ethics experts and even some allies have called on him to release his tax returns and prove that he has eliminated potential conflicts of interest and sufficiently distanced himself from the businesses in his name that stand to make more money now that he’s in office. But the Trump administration has not changed its stance.

No matter where you stand on the political spectrum, the American public should be outraged that we now have the first sitting president since the 1970s to avoid such a baseline transparency tradition.

The Hypocrisy Award: Former Indiana Governor—and current Vice President—Mike Pence

Vice President Mike Pence cared a lot about transparency and accountability in 2016, especially when it came to email. A campaign appearance couldn’t go by without Pence or his running mate criticizing Democratic candidate Hillary Clinton for using a private email server during her tenure as Secretary of State. In fact, the Foilies honored Clinton last year for her homebrewed email approach.

But Pence seemed much less bothered by those transparency and accountability concerns when he used a private AOL email address to conduct official business as Indiana’s governor. The Indianapolis Star reported in February that Pence used the account to communicate “with top advisors on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe.” That means that critical homeland security information was kept in an account likely less secure than government accounts (his account was reportedly hacked, too), and Pence’s communications were shielded from government records requirements.

The Frogmarch Award: Town of White Castle, La.

The only thing that could’ve made reporter Chris Nakamoto’s public records request in the small town of White Castle, La., a more absurd misadventure is if he’d brought Harold and Kumar along with him.

As chief investigator for WBRZ in Baton Rouge, Nakamoto filed records requests regarding the White Castle mayor’s salary. But when he turned up with a camera crew at city hall in March 2016 to demand missing documents, he was escorted out in handcuffs, locked in a holding cell for an hour, and charged with a misdemeanor for “remaining after being forbidden.” What’s worse is that Nakamoto was summoned to appear before the “Mayor’s Court,” a judicial proceeding conducted by the very same mayor Nakamoto was investigating. Nakamoto lawyered up, and the charges were dropped two months later.

“If anything, my arrest showed that if they’ll do that to me, and I have the medium to broadcast and let people know what’s happening to me, think about how they’re treating any citizen in that town,” Nakamoto says.

The Arts and Crafts Award: Public Health Agency of Canada

Journalists are used to receiving documents covered with cross-outs and huge black boxes. But in May 2016, Associated Press reporters encountered a unique form of redaction from Public Health Agency of Canada when seeking records related to the Ebola outbreak.

As journalist Raphael Satter wrote in a letter complaining to the agency: “It appears that PHAC staff botched their attempt to redact the documents, using bits of tape and loose pieces of paper to cover information which they tried to withhold. By the time it came into my hands, much of the tape had worn off, and the taped pieces had been torn.”

Even the wryest transparency advocates were amused when Satter wrote about the redaction art project on Twitter, but the incident did have more serious implications. At least three Sierra Leonean medical patients had their personal information exposed. Lifting up the tape also revealed how the agency redacted information that the reporters believed should’ve been public, such as email signatures.

The Office of the Privacy Commissioner of Canada said it would investigate, but Satter says he hasn’t heard anything back for 10 months.

The Whoa There, Cowboy Award: Milwaukee County Sheriff David Clarke

Milwaukee Sheriff David Clarke rose to prominence in 2016 as one of then-candidate Donald Trump’s top surrogates. He made inflammatory remarks about the Black Lives Matter movement, such as calling them a hate group and linking them to ISIS. But the press has also been a regular target of his.

Milwaukee Journal Sentinel Political Watchdog Columnist Daniel Bice filed a series of records requests with the sheriff’s office, demanding everything from calendars, to details about an NRA-funded trip to Israel, to records related to a series of jail deaths. So far, Clarke has been extremely slow to release this information, while being extremely quick to smear the reporter on the sheriff’s official Facebook page. Clarke frequently refers to the publication as the “Urinal Sentinel” and has diagnosed Bice with “Sheriff Clarke Derangement Syndrome.”

“I deal with open records requests with local governments and police departments. I do it at the city, county and state level,” Bice says. “He’s by far the worst for responding to public records.”

In May 2016, Clarke published a short essay on Facebook titled, “When Journalism Becomes an Obsession.” Clarke claimed that after he rejected Bice’s request for an interview, Bice retaliated with a series of public records requests, ignoring the fact that these requests are both routine and are often reporter’s only recourse when an official refuses to answer questions.

“This lazy man’s way of putting together newspaper columns uses tax-paid, government employees as pseudo-interns to help him gather information to write stories,” Clarke wrote.

Memo to Clarke: Requesting and reviewing public records is tedious and time-consuming, and certainly not the way to score an easy scoop. If anything, ranting on Facebook, then issuing one-sentence news releases about those Facebook posts, are the lazy man’s way of being accountable to your constituents.

The Longhand Award: Portland Commissioner Amanda Fritz

A local citizen in Portland, Ore., filed a records request to find out everyone that City Commissioner Amanda Fritz had blocked or muted from her Twitter account. This should’ve been easy. However, Fritz decided to go the long way, scribbling down each and every handle on a sheet of paper. She then rescanned that list in, and sent it back to the requester.

The records did show that Fritz had decided to hush accounts that were trying to affect public policy, such as @DoBetterPDX, which focuses on local efforts to help homeless people, and anonymous self-described urban activist @jegjehPDX.

Here’s a tip for officials who receive similar requests: All you need to do is go to your “Settings and Privacy” page, select the “Muted accounts” or “Blocked accounts” tab, and then click “export your list.”

The Wrong Address Award: U.S. Department of Justice

America Rising PAC, a conservative opposition research committee, has been filing FOIA requests on a number of issues, usually targeting Democrats. Following Supreme Court Justice Antonin Scalia’s passing, the PAC sent a FOIA to the attorney general seeking emails referencing the death.

But America Rising never received a response acknowledging that the DOJ received the request. That’s because the DOJ sent it to a random federal inmate serving time on child-pornography charges. The offender, however, was nice enough to forward the message to the PAC with a note railing against the “malicious incompetence” of the Obama administration.

The Redaction of Interest Award: General Services Administration

One of the threads that reporters have tried to unravel through the Trump campaign is how the prolific businessman would separate himself from his financial interests, especially regarding his 30-year contract with the federal government to build a Trump International Hotel at the location of the federally owned Old Post Office in Washington, D.C., a paper airplane’s flight from the White House.

BuzzFeed filed a FOIA request with the General Services Administration for a copy of the contract. What they received was a highly redacted document that raised more questions than it answered, including what role Trump’s family plays in the project.

“The American taxpayer would have no clue who was getting the lease to the building,” says reporter Aram Roston, who was investigating how Trump failed to uphold promises made when he put in a proposal for the project. “You wouldn’t know who owned this project.”

After pushing back, BuzzFeed was able to get certain sections unredacted, including evidence that Trump’s three children—Ivanka, Donald Jr. and Eric—all received a 7.425 percent stake through their LLCs, seemingly without injecting any money of their own.

The Fake News Award: Santa Maria Police Department

In 2015, the Santa Maria Police Department in California joined many other agencies in using the online service Nixle to distribute public information in lieu of press releases. The agency told citizens to sign up for “trustworthy information.”

Less than a year later, police broke that trust. The Santa Maria Police posted to its Nixle account a report that two individuals had been arrested and deported, which was promptly picked up the local press. Months later, court documents revealed that it had all been a lie to ostensibly help the individuals—who had been targeted for murder by a rival gang—escape the city.

Police were fiercely unapologetic. The agency has yet to remove the offending alert from Nixle or offer any kind of addendum, a direct violation of Nixle’s terms of service, which prohibits the transmission of “fraudulent, deceptive or misleading communications” through the service.

The Stupid Meter Award: Elster Solutions, Landis+Gyr, Ericsson

In May 2016, several smart meter companies sued transparency website MuckRock and one of its users, Phil Mocek, in a failed attempt to permanently remove documents from the website that they claimed contained trade secrets. Some of the companies initially obtained a court order requiring MuckRock to take down public records posted to the site that the city of Seattle had already released to the requester.

But in their rush to censor MuckRock and its user, the companies overlooked one small detail: the First Amendment. The Constitution plainly protected MuckRock’s ability to publish public records one of its users lawfully obtained from the city of Seattle, regardless of whether they contained trade secrets. A judge quickly agreed, ruling that the initial order was unconstitutional and allowing the documents to be reposted on MuckRock. The case and several others filed against MuckRock and its user later settled or were dismissed outright. The documents continue to be hosted on MuckRock for all to see.

The Least Productive Beta Testing Award: Federal Bureau of Investigation

The FBI spent most of 2016 doing what might be charitably described as beta testing a proprietary online FOIA portal that went live in March. But beta testing is probably a misnomer, because it implies that the site actually improved after its initial rollout.

The FBI’s year of “beta testing” included initially proposing a requirement that requesters submit a copy of their photo ID before submitting a request via the portal, and also imposed “operating hours” and limited the number of requests an individual could file per day.

Yet even after the FBI walked back from those proposals, the site appears designed to frustrate the public’s ability to make the premiere federal law enforcement agency more transparent. The portal limits the types of requests that can be filed digitally to people seeking information about themselves or others. Requesters cannot use the site to request information about FBI operations or activities, otherwise known as the bread and butter of FOIA requests. Oh, and the portal’s webform is capped at 3,000 characters, so brevity is very much appreciated!

Worse, now that the portal is online, the FBI has stopped accepting FOIA requests via email, meaning fax and snail mail are now supposed to be the primary (frustratingly slow) means of sending requests to the FBI. It almost seems like the FBI is affirmatively trying to make it hard to submit FOIA requests.

The Undermining Openness Award: U.S. Department of Justice

Documents released in 2016 in response to a FOIA lawsuit by the Freedom of the Press Foundation show that the U.S. Department of Justice secretly lobbied Congress in 2014 to kill a FOIA reform bill that had unanimously passed the U.S. House of Representatives 410-0.

But the secret axing of an overwhelmingly popular transparency bill wasn’t even the most odious aspect of DOJ’s behavior. In talking points disclosed via the lawsuit, DOJ strongly opposed codifying a “presumption of openness,” a provision that would assume by default that every government record should be disclosed to the public unless an agency could show that its release could result in foreseeable harm.

DOJ’s argument: “The proposed amendment is unacceptably damaging to the proper administration of FOIA and of the government as a whole,” which is bureaucratese for something like: “What unhinged transparency nut came up with this crazy presumption of openness idea, anyway?”

That would be Barack Obama, whose FOIA guidance on his first day in office back in 2009 was the blueprint for the presumption-of-openness language included in the bill. Perhaps DOJ thought it had to save Obama from himself?

DOJ’s fearmongering won out, and the bill died. Two years later, Congress eventually passed a much-weaker FOIA reform bill, but it did include the presumption of openness DOJ had previously fought against.

We’re still waiting for the “government as a whole” to collapse.

The Outrageous Fee Award: Missouri Department of Health and Senior Services

When public agencies get requests for digital data, officials can usually simply submit a query straight to the relevant database. But not in Missouri, apparently, where officials must use handcrafted, shade-grown database queries by public records artisans.

At least that’s the only explanation we can come up with for why the Missouri Department of Health and Senior Services estimated that it would take roughly 35,000 hours and $1.5 million to respond to an exceedingly simple request for state birth and death data.

Nonprofit Reclaim the Records, whose name eloquently sums up its mission, believed that a simple database query, combined with copy and paste, was all that was needed to fulfill its request. Missouri officials begged to differ, estimating that it would take them the equivalent of a person working around the clock for more than four years to compile the list by hand.

Although the fee estimate is not the highest the Foilies has ever seen—that honor goes to the Pentagon for its $660 million estimate in response to a MuckRock user’s FOIA request last year—Missouri’s estimate was outrageous. Stranger still, the agency later revised their estimated costs down to $5,000 without any real explanation. Reclaim the Records tried negotiating further with officials, but to no avail, as officials ultimately said they could not fulfill the request.

Reclaim the Records has since filed a lawsuit for the data.

The Dehumanization Award: Lafayette City Marshall

Public officials often dehumanize the news media to score cheap points … but can the same ploy work when fighting public records requests? That’s the issue in a very strange case between the IND, a Lafayette, La., media outlet, and a city marshal. After the marshal lost his bid to keep records secret in the trial court, he appealed on the grounds that IND had no right to bring the lawsuit in the first place.

The marshal, who faced fines, community service and house arrest for failing to turn over records, argues that Louisiana’s public records law requires that a living, breathing human make a request, not a corporate entity such as IND.

Make no mistake: There is no dispute that an actual human filed the request, which sought records relating to a bizarre news conference in which the marshal allegedly used his public office to make baseless allegations against a political opponent. Instead, the dispute centers on a legal formalism of whether IND can sue on its own behalf, rather than suing under the name of the reporter. The marshal’s seemingly ridiculous argument does have some basis in the text of the statute, which defines a requester as a person who is at least 18 years old.

That said, it’s an incredibly cynical argument, putting the letter well over the spirit of the law in what appears to be a well-documented effort by the marshal to violate the law and block public access. We hope the learned Louisiana appellate judges see through this blatant attempt to short-circuit the public records law.

The Lethal Redaction Award: States of Texas and Arizona

BuzzFeed reporters Chris McDaniel and Tasneem Nashrulla have been on a quest to find out where states like Texas and Arizona are obtaining drugs used for lethal injection, as some pharmaceutical suppliers have decided not to participate in the capital punishment machine. But these states are fighting to keep the names of their new suppliers secret, refusing to release anything identifying the companies in response to BuzzFeed’s FOIA requests.

At the crux of the investigation is whether the states attempted to obtain the drugs illegally from India. At least one shipment is currently being detained by the FDA. The reason for transparency is obvious if one looks only at one previously botched purchase the reporters uncovered: Texas had tried to source pentobarbital from an Indian company called Provizer Pharma, run by five 20-year-olds. Indian authorities raided their offices for allegedly selling psychotropic drugs and opioids before the order could be fulfilled.

The Poor Note-taker Award: Secretary of the Massachusetts Commonwealth

Updates to Massachusetts’ public records laws were set to take effect in January 2016, with Secretary of the Commonwealth William Galvin tasked with promulgating new regulations to clear up the vague language of the law. But Galvin didn’t exactly take his duty seriously. Instead, he crafted a regulation allowing his office to dodge requirements that public records appeals be handled in a timely fashion.

However, no regulation could take affect without public hearing. So he went through the motions and dispatched an underling to sit at a table and wait out the public comment—but didn’t keep any kind of record of what was said. A close-up captured by a Boston Institute for Nonprofit Journalism reporter showed a pen lying on a blank pad of paper. Asked by a reporter about the lack of notes, the underling said, “I was just here to conduct this hearing. That’s all I can say.”

The Foilies were compiled by EFF Investigative researcher Dave Maass, Frank Stanton legal fellow Aaron Mackey, and policy analyst Kate Tummarello. The Electronic Frontier Foundation is a San Francisco-based nonprofit that defends civil liberties at the crossroads of technology and the law. Read more about EFF and how to support our work at eff.org.

Published in Features

Last spring, Shoshana Walter with the Center for Investigative Reporting filed a routine public records request with the Sacramento County Sheriff’s Department for a story on a rogue firearms instructor. The request was unceremoniously denied, so Walter did exactly what reporters do in that situation: She pushed back.

Moments later, she received an email that she was never meant to see.

“Okay, now what? She is being a pain. Do we ask Peter what to do with her?” wrote the public servant handling the request.

The official immediately tried to recall the message. Within an hour, the sheriff’s department had a sudden change of heart and agreed to release the information. Meanwhile, all Walter could do was commiserate with other transparency advocates on the #FOIAFriday thread on Twitter.

Scroll through #FOIAFriday tweets, and you’ll find that Walter’s story is far from uncommon. In fact, the only thing unique is that, for once, Walter caught a glimpse of the cavalier attitude many government agencies take toward transparency.

March 13-19 is Sunshine Week, the season during which open government activists around the country make as much noise as possible about the need to reform laws on access to information, whether that’s the federal Freedom of Information Act (FOIA) or state-level laws, such as the California Public Records Act (CPRA).

Journalists, government watchdogs and regular citizens around the country encounter weak excuses, flagrant stonewalling and retaliation from government officials on a daily basis. That’s why, to celebrate Sunshine Week, the Electronic Frontier Foundation (EFF) created “The Foilies,” our name-and-shame awards for agencies and officials who stand in the way of transparency and accountability.

Join us on this journey as we examine some of the most ridiculous experiences members of the public have faced while pursuing James Madison’s 1822 advice: “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”


The Self-Server Award

Former Secretary of State Hillary Clinton

The homebrewed email server that former Secretary of State Hillary Clinton used during her time in office was lighter on complying with the spirit of FOIA than that watered-down lager brewed in your cousin’s closet. And just like your cousin deciding which buddies get to share in the homemade suds, Clinton herself decided which of her emails to share with the public—and then deleted 30,000 of them.

Transparency advocates and journalists are right to criticize Clinton for using an insecure private email server, but it is important to remember that her story is merely the highest profile example of a public official misusing technology to stifle public oversight. For years, officials at the local, state and federal levels have been using private communications to shield their work from public scrutiny—New York Gov. Andrew Cuomo has communicated exclusively with Blackberry PIN messaging to avoid creating any records, and high-level White House officials used private email accounts to conduct government business. There are, sadly, dozens of other instances of governors, city councilmembers and county commissioners doing the same thing.

When officials use private communications for work, they are not just potentially violating open records laws; they are stymieing the public’s ability to understand operation of their elected government and to hold those officials accountable for their actions. Clinton deserves this award, but so does every official who seeks to hide his or her actions from the public by using private communications systems.


The “Old School” Award

Rowan County Clerk Kim Davis

Kim Davis, the Rowan County Clerk in Kentucky, ignited a national controversy last year when she was jailed for refusing to issue marriage licenses to same-sex couples. MuckRock News’ Shawn Musgrave filed two requests for emails from that period, including emails covering the time when she supposedly scheduled a meeting with Pope Francis.

It turned out that marriage wasn’t the only issue where Davis took a “traditional position.” Rather than provide the 6,000 or so communications to MuckRock in a digital format, she insisted she was “old school on this email stuff,” and instead asked for $1,200 for print-outs, despite the Kentucky Open Records Act requirement that electronic records be available in an electronic format. After a lengthy back-and-forth, Davis finally complied with the law and began forwarding the records.


Worst Definition of Terrorism

State of Georgia

Transparency advocate Carl Malamud (pictured) and his Public.Resource.Org have been on a quest to make sure people have access to the laws that govern them. A righteous and benign endeavor, right? Well, not according to the state of Georgia, which is suing the organization for publishing a searchable and downloadable scan of the Official Code of Georgia Annotated. Georgia claims to hold the copyright in the laws, and by publishing them, Public.Resource.Org is not only engaged in piracy, but employing “a strategy of terrorism.”

Just to be clear: Reading a state’s annotated statutes might bore some people to death, but publishing the laws of the land has never killed anyone.

Full disclosure: EFF represents Malamud and Public.Resource.Org in similar lawsuits around the country, but not the Georgia case.


Most Expensive FOIA Fee Estimate

Department of Defense

Last year, we issued this award to the Drug Enforcement Administration for asking for $1.46 million in fees to process a FOIA request related to the capture of Mexican drug lord Joaquin “El Chapo” Guzman (and that’s even before he escaped, was interviewed by Sean Penn, and then recaptured).

This year, the Pentagon makes the DEA’s assessment look like pocket change. When MuckRock user Martin Peck asked for the number of “HotPlug” devices (a tool used to preserve data on seized computers), the agency came back with a whopping $660 million fee estimate to “perform the necessary redactions of proprietary data.”

The Secretary of Defense claimed it has no way to do a text search of its document system, so it would take 15 million labor hours to do the search and redact the documents.

By MuckRock’s calculations: “15 million labor hours breaks down into 625,000 days, or a little over 1,712 years. So assuming one DoD employee started working on this nonstop tomorrow, they'd finish somewhere in the summer of 3728.”


Special Prize for Drunk Dialing for Public Records

New Mexico Governor Susana Martinez

New Mexico media outlets have been battling Gov. Susana Martinez’s stalling tactics with records requests since she was elected to office in 2010. Yet when it comes to her own requests for public information, Martinez is a little impatient.

Last year, Martinez was partying in a room at a downtown Santa Fe hotel when the police responded to complaints of noise and bottles being tossed off the balcony. While still at the hotel, a furious Martinez called 911 and demanded to know the name of the person who filed the complaint. As the released recording revealed, Martinez demanded: “It’s a public record—give it to me.”

We’re a little sympathetic: The world would be a better place if we could all get public records on demand with a simple phone call. Unfortunately, that’s not the case yet, apparently not even for governors.

Martinez claims she’d only had one cocktail, but witnesses told police she was visibly “inebriated.” She later claimed, “Nothing that I said or did was as a result of any alcohol.” That’s almost worse, isn’t it?


Ministry of Silly Talks Award

UK Independent Commission on Freedom of Information

The United Kingdom also has a Freedom of Information Act, and last year, a new body was formed to review the state of play. (Read: Investigate whether transparency is too expensive and invasive.) But at its first meeting in 2015, the Independent Commission on Freedom of Information announced a ludicrously ironic set of ground rules for reporters. As The Guardian reported, the meeting would be “off-the-record” and journalists could not quote anyone. Transcripts weren’t published, either.


Head Trip Award

U.S. Army Surgeon General

The U.S. Army wasn’t happy with New York Times reporter Dave Philipps’ investigation into concussions at West Point. As documents show, Army officials came up with a plan to undercut his story by stalling the release of FOIA documents until they could publish their own report. What’s worse is that this wasn’t the first time they’d pulled this trick. As Army surgeon general Lt. Gen. Patricia D. Horoho said, according to a meeting summary, “Timing is everything with this stuff. We were able to do something similar … when the Colorado Springs Gazette attacked them with treatment of wounded warriors last year—(we) killed any scrutiny from the media and killed their story."


Copywrong Award

City of Inglewood

Local governments hate gadflies, those tenacious citizens who troll public meetings at every opportunity. The city of Inglewood in California thought it would use copyright law as a swatter, suing local resident Joseph Teixeira. Teixeira had been posting video clips from City Council meetings (which are public records) to YouTube with his own DVD-Bonus-Feature-style commentary, accusing officials of lying and betraying their constituents. Teixeira won the case in federal court in August, proving that trying to use copyright law to silence critics is a waste of everyone’s time and tax dollars.


Gitmo, Get Less Award

Department of Defense

Miami Herald reporter Carol Rosenberg has been covering Guantanamo Bay for more than a decade, and that’s how long it has taken the Department of Defense to release information on the costs of running the offshore detention facility for enemy combatants in the “War on Terror.” In 2004, a DOD official started compiling answers to her questions, but later informed her he was under orders not to release the information. So Rosenberg filed a formal FOIA request in February 2005, received a rejection, and then appealed. In 2015, almost 4,000 days later, she received an apology for the delay and a decision that the secrecy was unwarranted. She received three pages of information that showed the tens of millions spent to maintain the controversial facility in its first years.


Correction Fluid Award

Willacy County Sheriff, Texas

The Houston Chronicle was researching a reported spike in crime along the Mexican border by filing Open Records Act requests for crime data with sheriffs across south Texas. None of the sheriffs asked the Chronicle to pay records fees, except for one: the Willacy County Sheriff provided Brian M. Rosenthal with an itemized invoice for $339.60 that included—wait for it—$98.40 worth of Wite-Out. Based on Staples pricing, that’s a full 55 bottles worth of redaction, or one bottle of Wite-Out per 18 pages of responsive documents.


Spellcheck Shmellcheck Award

Central Intelligence Agency

These FOIA response envelopes received by MuckRock (mis)speak for themselves:


Beasts of Privacy Award

Oregon State Legislature

This year, we received three separate nominations in which FOIA officials were absurdly mindful of the privacy of animals. Reporter Elizabeth Dinan found on at least two occasions that the Portsmouth Police Department in New Hampshire were redacting the names of lost and loose dogs from its blotters. Meanwhile, MuckRock contributor Carly Sitrin found that New Jersey initially refused to release the necropsy results for a dolphin that died in the South River, citing the dolphin’s “medical privacy.” NJ later reversed course.

The prize, though, goes to the Oregon State Legislature, which renewed a law exempting the names of people who sell laboratory animals to Oregon Health and Sciences University, ostensibly to protect vendors from overzealous animal rights activists. InvestigateWest reporter Lee Van Der Voo obtained records (released seemingly by accident by the Oregon Department of Agriculture) that illustrated the pitfalls of shielding an industry from scrutiny: As it turns out, one of the primary primate dealers to the university had previously served time for illegally smuggling orangutans as part of the infamous “Bangkok Six” case.


Sue the Messenger Award

Sacramento Mayor Kevin Johnson

The Sacramento News and Review filed a public-records request with the city of Sacramento for communications from Mayor Kevin Johnson’s office regarding how the former basketball star and his staff allegedly engineered the collapse of the National Conference of Black Mayors. The city attorney agreed the emails were public, but then Johnson’s legal team threatened to file a lawsuit against the SNR unless they abandoned their quest for transparency. The SNR refused; Johnson sued; and now the story has been stalled as the case plays out through a protracted legal process. It remains to be seen whether the case will wrap up before Johnson leaves office next year.


The Culture of Secrecy Award

Kentucky Cabinet for Health and Family Services

Back in 2010 and 2011, the Courier-Journal and the Lexington Herald-Leader filed Open Records Act requests with the Kentucky Cabinet for Health and Family Services for information related to child fatalities. The agency balked at providing many of the records, forcing the newspapers to sue.

A lower level court ruled in the newspapers’ favor and ordered the agency to pay $1 million in penalties and fees. Rather than let it go at that, the cabinet appealed, only to dig itself deeper into the hole. After the oral argument in October 2015, the appeals court sided with the media and issued this juicy condemnation:

“The Cabinet’s conduct in this case was indeed egregious. The face of the record reveals the ‘culture of secrecy’ of which the trial court spoke; and it evinces an obvious and misguided belief that the Open Records Act is merely an ideal—a suggestion to be taken when it is convenient and flagrantly disregarded when it is not.”


The Most “Helpful” Redactions Award

Office of Director of National Intelligence

Redactions are a way of life with FOIA requests, but a response the American Civil Liberties Union received from the Office of the Director of National Intelligence (ODNI) in September takes this year’s award for most ridiculous misuse of the black marks.

For years, the ACLU has been demanding access to records documenting the government’s “targeted killing” program. In ODNI’s response to the ACLU, it claimed to be releasing an eight-page letter the ODNI Director James Clapper sent to ranking senators on the Intelligence Committee. That statement was belied by the fact that ODNI withheld nearly every word of the letter, save for the page numbers, names and addresses of the senators it was sent to, and a final concluding paragraph from Clapper. The redactions are so all-encompassing that there is no way to know what the subject of the letter is and whether it actually discusses the targeted killing program.

The kicker? The unredacted paragraph at the end of the letter begins “We hope this information has been helpful.”

Yeah, real helpful. Keep up the FOIA trolling, ODNI.


Exhibit Inhibition Award

Department of Justice

The Department of Justice (DOJ) believes that exhibits it used in open court when prosecuting a doctor convicted of illegally distributing prescription drugs are not, in fact, public records. The DOJ staked out this curious position in a long-running FOIA dispute with Rhode Island-based reporter Phil Eil after he filed a request for copies of the exhibits prosecutors used during the 2011 trial of the doctor, Paul Volkman. After stalling for several years and requiring Eil to sue for the records, the DOJ proposed to release the records in heavily redacted form.

Of course, anyone who attended the trial would have been able to see the records without the DOJ’s redactions, which the DOJ claims were in part necessary to protect law-enforcement concerns, despite airing those records in open court.


The Still-Interested Pat Down Award

Transportation Security Administration

Like the airport security line on a busy travel day, the TSA's backlog of FOIA responses just seems to keep growing. That's according to a compliance review by the Office of Government Information Services (OGIS), one in a series of reports on various agency-components of the Department of Homeland Security (DHS). OGIS found a nearly 70 percent year-over-year rise in the backlog of unfilled requests—up to 924 in 2014—despite a small drop in the number of incoming requests.

How does TSA get through those old requests? Unfortunately, it turned to the dreaded “still-interested letter,” checking to see if requesters still care enough to want an answer. TSA sends those out after a case has gone unclosed for four years—and, contrary to DOJ guidance, allows only 10 days for requesters to respond.

A bright spot in this sad story: Since OGIS compiled its report, TSA has updated its procedures on still-interested letters to bring them into line with DOJ and the rest of DHS.


The Timey-Wimey Award

City of Wilmington, Del.

In October, Wilmington Mayor Dennis Williams had to clarify that he had not endorsed Secretary Hillary Clinton for president after the campaign had listed his name on her website. The next day, America Rising, a conservative opposition research organization, filed a records request that asked for all communications to and from the mayor’s public relations team for that single, tumultuous day.

Here’s where the timeline gets bizarre: America Rising filed the request on Oct. 21, asking for communications that were exchanged on Oct. 20. Instead, the city said that America Rising had demanded the request be fulfilled by Oct. 20, one day before the request was actually filed. The city denied the request, essentially claiming they lacked the time travel capabilities to respond.

Since then, America Rising has clarified its request twice, and it’s still pending.

The Electronic Frontier Foundation is a nonprofit organization that defends free speech, privacy, innovation and transparency in the digital world. The Foilies were compiled by Dave Maass, Aaron Mackey and Parker Higgins of EFF, with assistance from Michael Morisy and JPat Brown of MuckRock News.

Published in Features