CVIndependent

Sun06242018

Last updateWed, 27 Sep 2017 1pm

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

I got a text from my mom flipping out about The Memo—the document assembled by Fresno-area Congressman Devin Nunes and released, despite intelligence agency concerns, on Feb. 2.

She’s smart but not especially political, and her text made it clear that the #releasethememo movement that began as an alt-right rallying cry had now reached the mainstream. “As a teenager you ranted about the CIA (you were right),” she wrote. “Now the FBI. Can we trust any politician or any government office?”

It was a strange moment for me, because, at the same time every mainstream news network in the country was on “Memo Watch,” I was covering a woefully uncovered trial in Baltimore, where the FBI uncovered a vast police corruption conspiracy after they traced some opioids that killed a young woman back to a drug gang and, upon tapping phones, realized the gang was working with a Baltimore Police officer named Momodu Gondo. When FBI agents tapped his phone, they realized that he and other officers were regularly targeting citizens whom they thought had a lot of cash—to rob.

Over the last three weeks of a federal trial—six of the officers pleaded guilty, while two maintained innocence and stood trial—we have learned that, according to testimony, one officer executed a man point-blank in 2009 because he “didn’t feel like chasing him.” According to Gondo’s testimony, a deputy commissioner came out to the scene to coach everyone on what to say: The victim was about to run them over, and he had to shoot. The deputy commissioner announced his retirement immediately following the testimony.

We also learned that during the uprising following Freddie Gray’s death, Wayne Jenkins—the ringleader of the elite police task force who was also indicted—came to a bail bondsman with two big trash bags of pharmaceuticals stolen from pharmacies and told him to sell them.

The bail bondsman testified that Jenkins came to him with stolen drugs almost every night. Jenkins, who did not testify, has come across as something like a demon. Even Jemell Rayam, who shot the man to keep from chasing him, thought Jenkins’ actions were excessive. Most of the officers said they were scared of him. He is, in Trump’s language, “high-energy,” and is in many ways the perfect image of Trumpian law-enforcement: If people are poor, or black, or immigrants—unprotected—then they are inherently criminal, and nothing you can do to them is criminal.

Jenkins had been involved in this kind of activity since at least 2010, when he and Det. Sean Suiter—who was apparently murdered in November, the day before he was supposed to testify to the grand jury in the case—chased a “target,” causing a fatal car crash, and then planted drugs in the car. Jenkins, as many people testified, was protected by the local power structure.

But the plodding investigations by the FBI—and prosecutions of the U.S. attorneys—brought down Jenkins’ long reign of terror.

This is similar to the story told by David Grann in last year’s Killers of the Flower Moon, which is about how the newly formed FBI was able to break through the white-power structure of 1920s Oklahoma law enforcement and expose local authorities’ involvement in killing hundreds of Native Americans in order to steal their payments from oil on Osage-owned lands.

Yet the national media—which covered every second of the burning CVS during the riots following Freddie Gray’s death—was largely silent about the vast police misconduct revealed in the trial, even though they dovetailed in some uncomfortable ways with the Memo Watch hysteria.

The Memo’s author, Devin Nunes, worked on Trump’s transition team and had a weird midnight Uber ride and secret White House lawn meeting a few months back. He ultimately alleged that the Steele dossier—source of the “pee tape” rumors—was paid for by the Democratic National Committee and used to get a Foreign Intelligence Surveillance Court warrant on former Trump advisor Carter Page.

The Trump team has long alleged that Page, who has done some bragging about his Russian connections, was nothing more than a “coffee boy”—and that this was an attempt by the FBI to take Trump down.

Ultimately, The Memo was a dud, but it does highlight the weird moment where the right is attacking law enforcement agencies, and the left is valorizing them. It’s not hard to find countless examples of FBI malfeasance—the agency’s COINTELPRO is one of the worst incidents of law enforcement over-stepping in American history, as J. Edgar Hoover and his team plotted illegal, Jenkins-esque ways to destroy the black-militant movement.

The rather young and dashing dynamic duo of federal prosecutors in Baltimore—Leo Wise and Derek Hines—come across as champions of Baltimore’s most vulnerable citizens. But as they pulled out a big bag of black masks and clothes that Jenkins used for burglaries, I couldn’t help but think of their colleague Jennifer Kerkhoff, who, an hour down the road in Washington D.C., is still trying to prosecute 59 people for wearing black clothes during Trump’s inauguration, following a protest where a few windows were broken.

Regardless, the Trumpist attempt to undermine the FBI can be seen as an attempt to protect people like Wayne Jenkins—remember that Trump pardoned the super-racist former Arizona sheriff Joe Arpaio—in the name of “local control” or “states’ rights.” It is part of what Steve Bannon called the “deconstruction of the administrative state,” an attempt to have lawmen—lawmen in whom the president sees himself—seen as above the law.

Just as testimony in the Baltimore trial wrapped up, it came out that the Trump team was trying to plan a big military parade on Pennsylvania Avenue in Washington, D.C. Surely, that will elicit massive protests—and may be a great gift to the lagging and fractured protest movement—but I couldn’t help but imagine Wayne Jenkins, with his grappling hooks and stolen drugs, riding with Arpaio at the front of the whole thing as a perfect picture of Trumpian law enforcement.

But Jenkins better not wear his black burglary clothes—D.C. prosecutors might mistake him for an anarchist and charge him with another conspiracy.

Baynard Woods is a reporter for the Real News Network and the founder of Democracy in Crisis, a project of alternative newspapers across the country. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.. Twitter: @baynardwoods.

Published in National/International

Hundreds of people were lined up in the marble hallways of a Senate office building, hoping to get one of the 88 public seats in Room 216, where James Comey, the FBI director Trump fired over the Russia investigation, was scheduled to testify at 10 a.m. on Thursday, June 8.

That was at 8:30 a.m. More came. Some of the people waiting in the winding line said they’d arrived at 4 a.m. Bars were opening early, and for once, it seemed like reporters and senators were the only people in Washington, D.C., not day-drinking.

Yes, this was serious shit.

Comey said that Trump asked him for loyalty. It freaked the then-director out—because if the FBI is not independent of political factions, it becomes a secret police force abetting tyranny or totalitarian control.

At one point, Comey tried to explain why he had assured Trump that he wasn’t personally under an investigation on several occasions.

Comey also said he told the president about salacious material—the Russian sex workers pissing on the bed the Obamas slept in, I guess—in a dossier gathered by a former intelligence official and later published by BuzzFeed; he didn’t want Trump to think the FBI would use the material against him.

“I was worried very much of being in kind of a—kind of a J. Edgar Hoover-type situation,” Comey said, referring to the legendary director—you might say dictator—of the FBI for half a century.

It was remarkable to hear Comey talk this way about the man more associated with the bureau than anyone else—but he had good reason: It helps us contextualize what is happening now, because things were even more fucked-up a century ago. That should make us feel a little better.

Hoover—a powerful, paranoid and proud eccentric—crafted the modern FBI. He started working for the Department of Justice in 1917. The country had finally entered World War I in April of that year. Two years earlier, in 1915, as the war in Europe escalated, Germany feared U.S. involvement and began a propaganda campaign (or “active measures,” as we’re calling it). As Tim Weiner writes in his book Enemies: A History of the FBI, a German official “began to build a propaganda machine in the United States; the Germans secretly gained control of a major New York newspaper, the Evening Mail; their front men negotiated to buy The Washington Post and the New York Sun. Political fixers, corrupt Germans and crooked detectives served the German cause.”

The U.S. eventually entered the war, and the government—especially the bureau, which worked under the Department of Justice—began to arrest and surveil German immigrants.

“The bureau launched its first nationwide domestic surveillance programs under the Espionage Act of 1917, rounding up radicals, wiretapping conversations, and opening mail,” Weiner writes, noting that more than 1,000 people were convicted under the act.

In 1920, a few years later, Hoover orchestrated the “biggest mass arrest in U.S. history,” according to Weiner’s research in unclassified documents, when the bureau “broke into political meetings, private homes, social clubs, dance halls and saloons across America,” arresting more than 6,000 people, for many of whom there were no warrants.

Back in the modern day, 200 people, including a reporter, were charged with felony rioting after protests on inauguration day; the reporter was arraigned the day after Comey’s testimony. Reality Winner, the federal contractor who leaked secrets about Russian attempts to hack voting machines in 2016, was arrested and charged under the Espionage Act a couple of days earlier.

It’s still hard to imagine the scope of those 1920 raids. It shouldn’t be.

Hoover later distanced himself from the raids and denied involvement. But rather than backing off as outrage grew over the violations of civil liberties, Hoover started to collect secret files on his political enemies. That’s what Comey was referring to when he referred to a Hoover-type situation.

David Grann’s stunning new book, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, shows how valuable a centralized investigative force can be in its detailing of the early FBI’s role in solving at least some of the murders of the indigenous Osage people in Oklahoma in the early 20th century, committed as a means to steal their money. The entire white power structure—from businesspeople to police to doctors—were in on the conspiracy to kill the Osage. But the FBI was outside of that local structure and was able to solve and prosecute some of the crimes as a result.

But much of the bureau’s history is shameful, reactionary and racist, as in COINTELPRO, or Counterintelligence Program, which targeted civil rights and peace activists in the 1960s. In a 2015 talk, Comey said he kept Hoover’s application for a warrant to wiretap Martin Luther King Jr., which cited “Communist influence in the racial situation,” on his desk. He said he required agents to study the Bureau’s MLK files and other instances of injustice, “to ensure that we remember our mistakes and that we learn from them.”

The idea of remembering our mistakes and learning from them is about as far as you can get from the whitewashed view of history implicit in Trump’s “Make America Great Again” slogan. Trump doesn’t seem like a person who is capable of admitting, much less learning from, a mistake, so the Senate needs to be particularly vigilant in their confirmation of Christopher Wray, Chris Christie’s Bridgegate lawyer, whose appointment as Comey’s replacement was announced over Twitter the day before Comey testified.

Things may seem bad now, but the bureau’s previous political persecution of the left, immigrants and minorities should remind us that they can always get worse.

Democracy in Crisis is a joint project of alternative newspapers around the country, including the Coachella Valley Independent. Baynard Woods is editor at large at the Baltimore City Paper. His work has also appeared in The Guardian, The New York Times, the Washington Post, Vox, Salon, McSweeney’s, Virginia Quarterly Review and many other publications. Send tips to This email address is being protected from spambots. You need JavaScript enabled to view it.. Twitter @demoincrisis. Podcast every Thursday at www.democracyincrisis.com.

Published in National/International

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