Your Government, In The Dark
The day after the 2021 inauguration, Sen. Chris Murphy of Connecticut took to Twitter to declare: “Biden is making transparency cool again.”

This was a head-scratcher for many journalists and transparency advocates. Freedom of Information – the concept that government documents belong to and must be accessible to the people – has never not been cool. Using federal and local public records laws, a single individual can uncover everything from war crimes to health code violations at the local taqueria. How awesome is that? If you need more proof: there was an Australian comic book series called Southern Squadron: Freedom of Information Act; the classic anime Evangelion has a Freedom of Information Act cameo; and the Leeds-based post-punk Mush received 7.4 stars from Pitchfork for its latest album “Lines Redacted.”

OK, now that we’ve put that down in writing we realize that the line between “cool” and “nerdy” might be a little blurry. But you know what definitely is not cool? Denying the public’s right to know.

Since 2015, The Foilies have served as an annual opportunity to name-and-shame the uncoolest government agencies and officials who have stood in the way of public access. (They’re named after FOIA – the U.S. Freedom of Information Act, which has a state corollary, the California Public Records Act.) We collect the most outrageous and ridiculous stories from around the country from journalists, activists, academics, and everyday folk who have filed public records requests and experienced retaliation, over-redactions, exorbitant fees, and other transparency malpractice. These annual faux awards celebrate Sunshine Week each March.

The Most Secretive Dog’s Bollocks: Conan the Belgian Malinois

Back in 2019, what should’ve been a fluff story (or scruff story) about Conan, the Delta Force K9 who was injured while assisting in the raid that took out an Islamic State leader, became yet another instance of the Trump administration tripping over itself with the facts. Was Conan a very good boy or a very good girl? Various White House and federal officials contradicted themselves, and the mystery remained.

Transparency advocate and journalist Freddy Martinez wouldn’t let the sleeping dog lie; he filed a FOIA request with the U.S. Special Operations Command, aka SOCOM. But rather than release the records, officials claimed they could “neither confirm nor deny the existence or nonexistence of records,” the much-dreaded “Glomar response” usually reserved for sensitive national security secrets (the USNS Hughes Glomar Explorer was a secret CIA ship that the agency didn’t want to acknowledge existed). Never one to roll over, Martinez sued SOCOM and the Defense Department in June 2020.

Just in time for Sunshine Week, Martinez got his records – a single page of a veterinary examination, almost completely redacted except for the dog’s name and the single letter “M” for sex. Conan’s breed and color were even blacked out, despite the fact that photos of the dog had already been tweeted by Trump.

Your Government, In The Dark

The Biblical Proportions Award: Chicago Mayor Lori Lightfoot

With Covid-19 affecting all levels of government operations, many transparency advocates and journalists were willing to accept some delays in responding to public records requests. However, some government officials were quick to use the pandemic as an excuse to ignore transparency laws altogether. Taking the prize this year is Mayor Lori Lightfoot of Chicago, who invoked the Old Testament in an effort to lobby the Illinois Attorney General to suspend FOIA deadlines altogether.

“I want to ask the average Chicagoan: Would you like them to do their job or would you like them to be pulled off to do FOIA requests?” Lightfoot said in April 2020, according to the Chicago Tribune, implying that epidemiologists and physicians are also the same people processing public records (they’re not).

She continued: “I think for those people who are scared to death about this virus, who are worried every single day that it’s going to come to their doorstep, and I’m mindful of the fact that we’re in the Pesach season, the angel of death that we all talk about is the Passover story, that angel of death is right here in our midst every single day.”

We’d just note that transparency is crucial to ensuring that the government’s response to Covid is both effective and equitable. And if ancient Egyptians had the power to FOIA the pharaoh for communications with Moses and Aaron, perhaps they probably would have avoided all 10 plagues – blood, frogs, and all.

The Cat Face Filter Award: Federal Bureau of Prisons

Kids these days – overlaying cat faces on their videos and showing the Bureau Of Prisons how it should redact media sought by FOIA requesters. That was the message from an incredulous federal appeals court in March 2020 after the BOP claimed it lacked the ability to blur out or otherwise redact faces (such as those of prisoners and guards) from surveillance videos sought through FOIA by an inmate who was stabbed with a screwdriver in a prison dining hall.

The court wrote: “The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans.” The judge made clear that although “we do not necessarily advocate that specific technique,” the BOP’s learned helplessness to redact video footage is completely .

The Redaction Most Likely to Make Your Bubbe Weep: Federal Aviation Administration

When General Atomics proposed flying a new class of drone over the San Diego region to demonstrate its domestic surveillance capabilities, Voice of San Diego Reporter Jesse Marx wanted to learn how it possibly could have been approved. So he filed a FOIA request with the Federal Aviation Administration, and ultimately a lawsuit to liberate documentation. Among the records he received was an email containing a “little vent” from an FAA worker that began with “Oy vey” and then virtually everything else – including the employee’s four bullet-pointed “genuinely constructive thoughts” – were redacted.

The Government Retribution Award: City of Portland, Oregon

People seeking public records all too often have to sue the government to get a response to their records requests. But in an unusual turn-around, when attorney and activist Alan Kessler requested records from the city of Portland related to text messages on government phones, the government retaliated by suing him and demanding that he turn over copies of his own phone messages. Among other things, the city specifically demanded that Kessler hand over all Signal, WhatsApp, email, and text messages having to do with Portland police violence, the Portland police in general, and the Portland protests.

The Secret Covid Statistics Award: North Carolina Department of Health and Human Services

Seeking a better understanding of the toll of Covid-19 in the early days of the pandemic, journalists in North Carolina requested copies of death certificates from local county health departments. Within days, officials from the state Department of Health and Human Services reached out to county offices with guidance not to provide the requested records – without citing any legal justification whatsoever. DHHS did not respond to reporters’ questions about why it issued that guidance or how it was justified.

Some local agencies followed the guidance and withheld records, some responded speedily, and some turned them over begrudgingly – emphasis on the grudge.

“I will be making everyone in Iredell County aware through various means available; that you are wanting all these death records with their loved ones’ private information!” one county official wrote to The News and Review reporters in an email. “As an elected official, it is relevant the public be aware of how you are trying to bully the county into just giving you info from private citizens because you think you deserve it.”

The Juking the FOIA Stats Award: Centers for Disease Control

The Wire, the classic HBO police dramalaid bare how police departments across the country manipulate data to present trends about crime being down. As ex-detective Roland Pryzbylewski put it: “Juking the stats… making robberies into larcenies. Making rapes disappear. You juke the stats, and majors become colonels.”

The CDC seems to love to juke its FOIA stats. As the nonprofit advocacy organization American Oversight alleged in a lawsuit last year, the CDC has been systematically rejecting FOIA requests by claiming they are overly broad or burdensome, despite years of court decisions requiring agencies to work in good faith with requesters to try to help them find records or narrow their request. The CDC then categorizes those supposedly overbroad requests as “withdrawn” by the requester and closes the file without having to provide any records. So those FOIAs disappear, much like the violent crime reports in The Wire.

The CDC’s annual FOIA reports show that the agency’s two-step juke move is a favorite. According to American Oversight, between 2016 and 2019, CDC closed between 21 to 31 percent of all FOIA requests it received as “withdrawn.” (CDC’s closure rate during that period was roughly three times that of its parent agency, the Department of Health and Human Services, which on average only closed 6 to 10 percent of its FOIAs as withdrawn.) After American Oversight sued, the CDC began releasing documents.

The Thin Crust, Wood-Fired Redactions Award: U.S. State Department

Former Secretary of State Mike Pompeo hosted plenty of controversial meals during his three-year tenure. There was the indoor holiday party last December and those bizarre, lavish “Madison Dinners” that cost taxpayers tens of thousands of dollars, including more than $10k for embossed pens alone. And while we know the full menu of Pompeo’s high-class North Korea summit in 2018 in Manhattan – filet mignon with corn purée was the centerpiece – the public may never find out two searing culinary questions about Mikey: What are his pizza toppings of choice, and what’s his go-to sandwich?

On the pizza angle, the State Department let slip that Pompeo likes it thin and wood-fired, in emails released to NBC correspondent Josh Lederman. But the list of toppings was far too saucy for public consumption, apparently, and redacted on privacy grounds. Same for Pompeo’s sandwich-of-choice, which the State Department redacted from emails released to American Oversight. But we still know “plenty of dry snacks and diet coke” were on offer.

The Most Expensive Cover-Up Award: Small Business Administration

In the early weeks of the pandemic, the Small Business Administration (SBA) awarded millions of dollars to small businesses through new Covid-related relief programs – but didn’t make the names of recipients public. When major news organizations including ProPublica, The Washington Post and The New York Times filed public records requests to learn exactly where that money had gone, the SBA dragged its feet, and then – after the news organizations sued – tried to withhold the information under FOIA Exemptions 4 and 6, for confidential and private information. A court rejected both claims, and also forced the government to cough up more than $120,000 in fees to the news organizations’ lawyers.

The Save the Children Award: Louisville Metropolitan Police Department, Kentucky

The Louisville Metropolitan Police Department’s Explorer Scouts program was supposed to give teenagers a chance to learn more about careers in law enforcement. For two LMPD officers, though, it became an opportunity for sexual abuse. When reporters asked for more information on the perpetrators, the city chose to respond with further absurdity – by destroying its records. The case against the city and the Boy Scouts of America is scheduled to begin in April 2021.

The Courier-Journal in Louisville first asked LMPD in mid-2019 for all records regarding the two officers’ sexual abuse of minors. Louisville claimed it didn’t have any; they had been turned over to the FBI. Then the Courier-Journal appealed, and the city eventually determined that they’d found a “hidden folder” still containing the responsive records – 738,000 records, whaddya know. Not for long, though. Less than a month later, they’d all been deleted, despite the ongoing request, a casualty of the city’s automated backup and deletion system, according to Louisville.

At the end of 2020, the Courier-Journal was still fighting the city’s failure to comply with the Kentucky Public Records Act.

“I have practiced open records law since the law was enacted 45 years ago, and I have never seen anything so brazen,” Courier-Journal attorney Jon Fleischaker told the paper. “I think it an outrage.”

Your Government, In The Dark

The 30 Days of Night Award: Hamilton County, Tennessee

It’s hard to imagine a more benign request than asking for copies of other public records requests, but that’s exactly what got Hamilton County officials in Tennessee so spooked they started a mass purge of documents. The shred-a-thon started after Chattanooga Times Free Press reporter Sarah Grace Taylor requested to examine the requests to see if the county’s policies for releasing materials were arbitrary. Originally, the county asked for $717 for about 1,500 pages of records, which Taylor declined to pay in favor of inspecting the records herself.

But as negotiations to view the records commenced, records coordinator Dana Beltramo requested and received permission to update their retention policy to just 30 days for records requests. After Taylor’s continued reporting on the issue sparked an outcry, the county revised its policy once again and promised to do better. “What we did today was basically try to prevent the confusion of mistakes that have happened from happening again,”said Hamilton County Mayor Jim Coppinger. In other words, it’s all just a big misunderstanding.

The Handcuffs and Prior Restraints Award: Chicago Police Department and City of Chicago

In February 2019, a swarm of Chicago police officers raided the wrong apartment with their guns drawn. They handcuffed the resident, Anjanette Young, who was completely undressed, and they refused to let her put on clothes as she pleaded with them dozens of times that they had the wrong house. Young sued the city in federal court and filed a request for body camera footage of the officers who invaded her home. The local CBS affiliate, CBS 2, also requested the body camera footage.

The Chicago Police Department denied both requests, despite a binding ruling just months earlier that CPD was required to turn over body camera footage to people like Young who were involved in the recorded events. Young ultimately got the footage as part of her lawsuit, and her attorney provided them to the media. The city’s lawyers then took the extraordinary step of asking the court to order CBS 2 not to air the video, a demand to censor speech before it occurs called a “prior restraint.” The judge denied the city’s request.

The city also sought sanctions against Young’s attorney, but the city withdrew its motion and Chicago Mayor Lori Lightfoot called the request “ill-advised” in a letter to the court. The judge decided not to sanction Young’s attorney.

The Self-Serving Secrecy Award: Niagara County, New York

Money talks. The New York Legislature knew this when it passed the Ethics in Government Act in 1987, which required, among other public transparency measures, elected officials in 50,000 person-plus municipalities to complete financial disclosure forms each year. The public should be allowed to see who our leaders may be particularly keen to hear.

Sixty-one of New York’s 62 counties generally accepted that the disclosure forms, created for public use in the first place, were meant to be disclosed, according to the New York Coalition for Open Government. Back in 1996, though, Niagara County found a quick trick to keep from sharing its officials’ finances: They made it illegal. By local ordinance, the records were made secret, and the county proceeded to reject any requests for access by claiming that releasing the information would be a violation of the law.

This local law prohibiting access was itself, of course, a violation of the law, but Niagara County managed to keep it on the books for more than two decades, and it may have gotten away with it had it not been for the work of the New York Coalition for Open Government.

In February 2020, the NYCOG, represented by the University of Buffalo School of Law Civil Rights & Transparency Clinic, sued Niagara County, alleging its ordinance was unlawful (because it was). This past fall, a court agreed. Five months later, in January 2021, the county began releasing records, ones that should have been available for the last 30-plus years.

The Power of the Tweet Award: Former President Donald J. Trump

Secrecy nerds know that classification authority – the power to essentially mark some documents as secrets exempt from disclosure – resides with and is largely at the discretion of the president, who can then designate that authority as needed to agency personnel. So one expected upside of a loose-lipped president with an undisciplined social media habit was the ability to use the Tweeter-in-Chief’s posts to target otherwise inaccessible FOIA requests.

Case in point: Trump’s October 6, 2020 tweet: “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!” Hard to argue there’s ambiguity there. But when BuzzFeed News’ Jason Leopold flagged that order in his ongoing lawsuit for the materials, that’s exactly what the Department of Justice did. Based on their investigations, DOJ lawyers told the court, the posts “were not self-executing declassification orders and do not require the declassification of any particular documents.”

The court ultimately bought the argument that you can’t take what the then-president tweets too seriously, but Trump declassified other materials related to the FBI’s investigation… on his last day in office.

Your Government, In The Dark

 

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