CVIndependent

Thu05242018

Last updateWed, 27 Sep 2017 1pm

Cops have a lot of pull in the California Capitol, and over the decades, that’s added up to this startling reality: The Golden State now goes further than many states in terms of protecting police from public scrutiny.

It’s a stark contrast to the state’s “left coast” image. On abortion rights, gun control and climate change, California has embraced some of the most liberal policies in the nation.

But even with a statehouse controlled entirely by Democrats, California laws are friendlier to law enforcement—and less transparent to the public—than those in Wisconsin and Florida, states with Republican governors and legislatures.

One explanation is that politicians from both parties seek police endorsements to help them sway voters. Polling from last year showed that two-thirds of Californians think their local police are doing a good job controlling crime.

Another is that labor unions representing officers donate generously to elect officials at every level of government. Three major statewide law enforcement groups—the Peace Officers Research Association of California, the California Statewide Law Enforcement Association and the California Correctional Peace Officers Association—together poured $5.7 million into California political campaigns in the last election cycle, including giving $475,000 to the California Democratic Party and $168,500 to the California Republican Party. That doesn’t include the money dozens of local police unions around the state give to politicians.

As cities across the nation were roiled by police killings in recent years, the Legislature quietly killed proposals to create more police accountability. Now, as California’s capital city responds to the killing of Stephon Clark—the unarmed black man shot on March 18 by Sacramento police, who seemingly mistook the cellphone he held for a gun—some of those failed bills are being re-introduced.

California police shot 162 people dead last year, according to a tally by The Washington Post—which means the state has 16 percent of the nation’s killings by police, but only 12 percent of its population. Activists with the Black Lives Matter movement say legislation now proposed in California is “many years behind” and that Democrats in the Legislature have not been responsive to black communities on police issues.

“What happens is that the police unions (and) the police lobbyists come out in full force and then legislators who are afraid of their campaign coffers being interrupted side with law enforcement,” said Cat Brooks, founder of the Anti Police-Terror Project based in Oakland.

Police unions see it differently: Reactionary legislators propose unworkable bills, and then law enforcement helps them understand why the bills are bad ideas.

“We have been fortunate to have common sense prevail at the end, as opposed to the stuff that’s proposed at the beginning,” said Tom Saggau, a spokesman for the Los Angeles Police Protective League, a labor union.

When it comes to making campaign contributions, police are like most interest groups that work to influence public policy, said Brian Marvel, president of Peace Officers Research Association of California, an advocacy group.

“That’s politics in America,” he said.

Though the money helps, Marvel said, it is not the only reason police have influence in Sacramento: “Public safety resonates across both sides. People want to be safe in their home; people want to be safe to walk down the street; people respect law enforcement.”

Here are three ways in which California law protects police more than some states do—and one proposed law that would give it the nation’s toughest standard to justify police using deadly force.


California keeps police misconduct records secret

In most states, the public has at least some access to records that detail misconduct by police officers. Not so in California.

The Golden State is among 23 states that do not make discipline of police officers available through a public-records request—and one of just three states with laws specifically making police personnel records confidential, according to an investigation by New York public radio WNYC.

The secrecy—which dates back to a law Gov. Jerry Brown signed in 1978—makes it nearly impossible for Californians to know if the police who patrol their streets have ever been disciplined for excessive use of force.

“Law enforcement is the only public-employee group for which we have no access to the records. (With) every other employment category, you pretty much have full access under the Public Records Act,” said state Sen. Nancy Skinner, a Berkeley Democrat. “Good policing requires community trust.”

Her Senate Bill 1421 would make officers’ records public in three situations: when they fire a gun or use force resulting in serious injury or death; when they’ve engaged in sexual assault on the job; or when they’ve been dishonest in investigating a crime, such as by filing false reports or concealing evidence.

Similar legislation failed in 2016, facing stiff opposition from law enforcement groups who argued that it amounted to an invasion of privacy. It’s too soon to say if Skinner’s bill will meet the same fate, but at least one police group says it’s working to find common ground with her.

“We are trying to find how we can release some information once it’s gone through its administrative process or the courts,” said Marvel, a San Diego police officer who is president of the Peace Officers Research Association. “I think we can agree on a system of transparency that allows the community to have faith in their police department.”

Other law enforcement groups say there’s no need to open personnel records. Gary Ingemunson, an attorney for the LA police union, called Skinner’s proposal “a can of worms.” He said existing procedures—through the courts and citizen-review boards—provide sufficient accountability.

“Why are we opening it up? So the newspapers can have a field day?” Ingemunson said. “What’s really important is that the people who need to know have a way to find out. … It’s already as open as it needs to be, in our view.”


California lets local law enforcement police themselves

When police kill, it’s generally up to the local district attorney’s office to determine if it’s a crime. But sometimes they rely on investigations conducted by the cop’s own department, and research has shown that prosecutors rarely file criminal charges against officers involved in on-the-job shootings.

Police say that’s because the vast majority of their shootings are legally justified, done only when officers perceive an imminent threat. Critics say it’s because cops and prosecutors, who work together closely and spend money to help each other win elections, are too cozy.

Four other states require that a state agency—instead of local prosecutors—conduct the investigation when police conduct results in death. Wisconsin passed such a law in 2014 after a man whose son was killed by police used a $1.75 million settlement to lobby for the change.

In California, lawmakers have rejected the idea twice. But Sacramento Democratic Assemblyman Kevin McCarty—spurred on by the recent announcement that Sacramento police asked the state Attorney General to investigate the death of Stephon Clark—plans to re-introduce a bill requiring the state Justice Department to investigate deaths and serious injury caused by police.

“It raises a bigger question: why not for all the shootings?” McCarty said. “Having an independent third-party law enforcement agency come and do the investigation can bring about more transparency and more trust in the process.”

McCarty points to a report by the Stanford Criminal Justice Center that describes the Wisconsin law as a model California should follow. But Tanya Faison, a leader of Black Lives Matter in Sacramento, said such a change is far short of a panacea.

“There need to be oversight boards that reflect our community that do the investigations when police officers kill people,” Faison said. “This would move the needle in the right direction, but there is more work to do.”

Police opposed McCarty’s bill last year, saying people who mistrust local law enforcement are unlikely to have more confidence in state-level authorities. And they challenge the assumption that investigators can’t set aside their personal relationships to conduct a fair inquiry.

“What McCarty is saying is that these officers are unprofessional and can’t do their job,” said Marvel. “I don’t buy into that premise.”

California Attorney General Xavier Becerra chimed in with support only after last year’s bill was watered down to a study. Lawmakers then killed it in the Senate Appropriations Committee, where bills can die without a public vote.

Asked this month if he would support McCarty’s effort this year, Becerra was noncommittal. “What you want to make sure is that you have an investigation that withstands the test of transparency, scrutiny and accountability. That can be accomplished in any number of ways,” he said.

Establishing a unit in the state Department of Justice to investigate police shootings would cost between $8.5 million and $10 million a year, according to an analysis of prior legislation. McCarty said he’s exploring whether his proposal can be inserted into this year’s state budget.


California has no power to revoke a cop’s certification

State law says that anyone convicted of a felony cannot serve in law enforcement. Beyond that, though, California’s system for getting rid of bad cops is highly decentralized. The state has more than 600 law-enforcement agencies, and each one can decide if—short of a felony conviction—an officer’s misconduct is a firing offense.

It’s the opposite of how most of the country regulates police, according to research by Roger Goldman, a retired professor at the Saint Louis University School of Law. He said that 45 states have a centralized system for revoking an officer’s professional certification—and most of them do it for less than a felony conviction.

“States like Georgia, Florida and North Carolina are decertifying cops hand over fist, and California is decertifying nobody, other than if convicted of a felony,” Goldman said.

It wasn’t always like this. California used to allow its law-enforcement regulatory agency—known as the Commission on Peace Officer Standards and Training—to yank a cop’s certification. But in 2003, police unions lobbied the Legislature to take away that power, and Gov. Gray Davis signed the bill a month before he was recalled.

The other states with a decentralized system like California’s are Hawaii, New Jersey, Massachusetts and Rhode Island, Goldman said. “What do they have in common? Very blue. Very strong police unions. The (California) Legislature is obviously scared to death of taking on the police unions.”

Though Goldman contends that the lack of such a system makes it easier for bad cops in California to bounce from one department to another, state officials disagree. They argue that police departments here can do a background check on anyone they’re considering hiring and find out if they’ve been fired for misconduct.

“Just because California doesn’t have a process, per se, like other states (to) rescind or cancel a certificate or license, (that) doesn’t mean California takes that lightly,” said Dave Althausen, spokesman for the state regulatory agency.

It has a database that tracks every sworn officer in the state, he said, including when they were hired by a department and under what circumstances they left. If they are convicted of a felony, the law says the agency must note in their file that they are “ineligible to be a peace officer in California.”

But, Althausen acknowledged, there’s no requirement that agencies check the database when hiring a new officer.


And yet: California is now considering the nation’s toughest standards for use of deadly force

In 1989, the U.S. Supreme Court ruled that police use of force is justified whenever a “reasonable officer” in the same circumstance would do the same, setting the legal standard now used in every state. It’s one reason so few cops are convicted of crimes when they kill—jurors must consider whether a reasonable officer perceiving the same threat would make the same split-second decision. If so, the killing is legally justified.

California lawmakers will consider a bill this year that would make California the only state in the nation to set a different standard—one supporters believe will make it easier to hold police accountable. Under AB 931, police could only use deadly force when “necessary” to prevent injury or death in the context of the officer’s entire encounter with a suspect—not just the moment before firing his gun. Killing would only be legally justified if other tactics, such as warnings or de-escalation, were not possible instead.

“We’re not saying that law enforcement officers can never use deadly force,” said Assemblywoman Shirley Weber, a San Diego Democrat carrying the bill with McCarty. “Deadly force can be used, but only when it is completely necessary.”

Lawyers with the American Civil Liberties Union, which is backing the bill, say the Supreme Court standard sets a minimum level of protection for civilians confronted by police, and that states can choose to set a higher bar. But Ingemunson, the lawyer for the LA police union questioned that, saying the proposed standard may violate officers’ rights under federal law.

“The theory would be that an officer also has rights, and one might be to be judged by the federal standard, not some state standard,” he said.

Police are frustrated that the bill language has not yet been made public (as of this story’s publication) and say it’s hypocritical of the ACLU to criticize law enforcement for a lack of transparency while working with legislators behind the scenes to draft a bill that would impact their profession. They also warn that the “necessary” standard might discourage police from going into dangerous situations where their help is needed.

“It would be a colossal hindrance to law enforcement in this state,” said Marvel. “It would take away our ability to react efficiently and effectively. Officers will be thinking, ‘Should I really be doing this? Should I run away?’”

Though no other states have a standard like the one California is considering, some police departments have a standard higher than the one set by the Supreme Court in their internal policies. Seth Stoughton, an assistant professor at the University of South Carolina School of Law, researched use-of-force policies in the nation’s 50 largest police departments for a paper published last year. He concluded that Los Angeles has nothing in its policy describing a continuum of the types of force that should be deployed, while Seattle has the most detailed policy, stating, in part, that officers must “use only the force necessary to perform their duties.”

“The Supreme Court case law sets a (low) floor, but not a ceiling on how agencies handle use of force internally,” Stoughton wrote.

Franklin Zimring, a professor at UC Berkeley’s law school, said the California Legislature could best impact police behavior by increasing the amount of civil damages victims may seek in lawsuits over deadly force.

“The major force in controlling, or failing to control, police use of force is the police chief,” Zimring said. “What state law can do is … make excessive use of deadly force expensive enough to motivate police chiefs.”

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

Published in Local Issues

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