It seems like these days, everyone is finding classified documents in places they shouldn’t be: their homes, their offices, their storage lockers, their garages, their guitar cases, between the cracks of their couches… OK, we’re exaggerating a little – but it is getting ridiculous.
While the pundits continue to speculate whether former President Donald Trump, former Vice President Mike Pence and President Joe Biden put national security at risk, that ultimately might not be the biggest problem.
What we know for sure is that these episodes illustrate overlapping problems for government transparency. It reveals an epidemic of over-aggressive classification of documents that could easily be made public. It means that an untold number of documents that belong to the public went missing – even though we may not get to see them for at least 25 years, when the law requires a declassification review. And then there’s the big, troubling transparency question: If these officials pocketed national secrets, what other troves of non-secret but nonetheless important documents did they hold on to, potentially frustrating the public’s ability to ever see them?
It doesn’t do much good to file a Freedom of Information Act (FOIA) request for records that have mysteriously disappeared. (The equivalent in California is the California Public Records Act.)
Misbehavior like this is why we created The Foilies, annual tongue-in-cheek “awards” for agencies and officials that thwart the public’s right to government information or otherwise respond outrageously to requests for documents and records. Each year, the Electronic Frontier Foundation and MuckRock News, in partnership with the Association of Alternative Newsmedia, publish this list of ne’er-do-wells to celebrate Sunshine Week (March 12-18) – an annual event to raise the profile of the democratic concept of government transparency.
It may be many years before the public learns what secret and not-so-secret documents weren’t turned over by past administrations to the National Archives. But when we do, we’ll be sure to nominate them for the top prizes. In the meantime, we have plenty of recognition to hand out. Read on and get to know the 2023 who’s-who of government opacity.
(I’m Not Your) Steppin’ Stone to Transparency Award: Federal Bureau of Investigation
We are all lucky that the FBI is always on the lookout for “left-wing innovations of a political nature,” especially those nasty “subliminal messages.” That’s why, in 1967, it sent an informant to a Monkees concert, who reported on the band’s anti-war sentiment to add to the FBI’s growing file on the band.
Micky Dolenz, the band’s sole surviving member, is suing for that file under FOIA. As his complaint points out, the FBI spied on many musicians of that era, including Jimi Hendrix and John Lennon.
Dolenz sued after the FBI failed to produce the file beyond the heavily redacted portion that it already published online. The FBI has since provided five more redacted pages, Dolenz’s attorney says. Hopefully, this will shed more light on the FBI’s heroic war against Beatles, Monkees and other subversive members of the animal kingdom.
The Outrageous Fee of the Year Award: Rochester Community Schools District
This year’s winner for most ludicrous fee assessment takes us to a suburb north of Detroit, where parents were met with a hefty price tag for trying to find out whether the school district was spying on them.
As reported by WXYZ, the parents were part of a Facebook group where they discussed their dissatisfaction with the district’s approach to remote learning. After a local parent sued the district, claiming she was fired because a district official had complained to her employer about her criticism of the district’s Covid-19 policies, these parents began filing public records requests to see if the district was monitoring their social media.
When one parent asked for records to know whether their name was included in any social media monitoring, the district said that to comply with the request, staff would have to search every email ever sent by an employee – a total of 12,115,251 emails. The district told the parent to be prepared to be liable for a whopping $18,641,345 fee, with $9,320,673.73 due in advance. That’s a lot of bake sales.
The Redactions Don’t Gitmo Surreal Award: The U.S. Southern Command
The U.S. facility at Guantanamo Bay in Cuba regularly serves up both insults and injuries. A number of people still held there have been subjected to torture and other inhumane treatment at U.S. “black sites”; many are imprisoned indefinitely; and the Pentagon considers detainees’ artwork to be property of the U.S. government. The whole thing is a bit surreal, but U.S. Southern Command (SOUTHCOM) has more techniques for turning up the dial.
Bloomberg reporter Jason Leopold submitted a FOIA request in 2017 for artwork created by those detained at Guantanamo Bay. SOUTHCOM finally fulfilled the request last spring, and it took its own creative liberties with the release.
To the hundreds of pages of colorful paintings and drawings created by Gitmo prisoners, the military added hundreds of little white redactions. FOIA requires redactions to be very particular and to specifically cite applicable exemptions. It seems there were plenty of very particular elements with which the agency took issue, claiming that amidst trees of leaves and other scenes were materials that were ineligible for release due to personal privacy concerns and the risk that they would betray law enforcement techniques. When prisoners’ art could potentially disclose military secrets, we’re well through the looking glass.
“Gitmo, after 20-plus years, is not only a black box of secrecy,” Leopold says, “but it has its own Orwellian rules when it comes to transparency.”
We Can Neither Confirm Nor Deny the Existence of This Award: National Security Agency
Sometimes agencies will respond to a FOIA request with a stack of documents. Other times, they will reject the request out of hand. But some agencies choose a third route: They tell you they can neither confirm nor deny whether the information exists, because the subject matter is classified, or because a positive or negative response would expose the agency’s hand in whatever intelligence or investigation game they’re playing.
This so-called “Glomar response” is derived from a Cold War-era case, when the CIA refused to confirm or deny to the Los Angeles Times whether it had information about the USNS Hughes Glomar Explorer, a CIA ship that was used to try to salvage a sunken Soviet spy sub.
“The Reporters Committee for Freedom of the Press is studying the prevalence of so-called ‘Glomar’ responses to FOIA requests across the federal government,” RCFP Senior Staff Attorney Adam Marshall says. “As part of that project, it has submitted FOIA requests (what else) to every federal agency regarding their Glomar volume over a five-year period.”
So far, RCFP has learned that the U.S. Commodity Futures Trading Commission sent four Glomars; the U.S. Department of Energy Office of the Inspector General sent 14; and the U.S. Department of Health and Human Services Office of the Inspector General sent 102.
The NSA came back with an astounding 2,721 Glomar responses over the five-year period. As Marshall noted, in fiscal year 2021 alone, Glomars accounted for at least 41 percent of all the FOIA requests the NSA processed. And so we honor the NSA for being so transparent about its lack of transparency.
The Leave No Coffee Mug Unturned Award: General Escobedo, Mexico
When an agency receives a records request, an official is supposed to conduct a thorough search, not poke around half-heartedly before generating a boilerplate rejection letter. What’s rare is for an agency to send a photo essay documenting their fruitless hunt for records.
That’s exactly how the city of General Escobedo in Nuevo León, Mexico, responded to a public records request (using Mexico’s equivalent of FOIA) that the EFF filed for documents related to a predictive policing law. The “Inexistencia de Información” letter they sent included a moment-by-moment photo series of their journey, proving they looked really hard, but couldn’t find any records.
First, the photos show they were outside the city’s security secretariat building. Then they are shown standing at the door to the police investigative analysis unit. Then sitting at a computer, looking at files, with a few screengrabs. Then looking in a filing cabinet.
The next photo shows them looking in the drawer where they keep their coffee mugs – just in case there was a print-out jammed between the tea bags and the stevia. See, they looked everywhere.
Only problem… those screengrabs on the computer they breezed past were exactly the kind of documents we wanted. EFF appealed the case before the state’s transparency board, which eventually forced Escobedo to release a slideshow and receipts showing the city had spent more than 4 million pesos on the Sistema de Predicción de Delitos project.
The Wishy-Washy Access Award: Alphabet and The Dalles, Oregon
The Western U.S. has been caught in a 20-year megadrought, but when The Oregonian/OregonLive sought records on water usage from the city of The Dalles, the news organization found itself on the wrong side of a lawsuit. The city claimed the data was a trade secret, and filed suit on behalf of Google parent company Alphabet to block the release of records.
Alphabet, like other major tech companies, has increasingly invested in massive data centers that slurp up vast quantities of water to cool off their hardware. How much water, however, was a mystery, and one of pressing concern for locals. One resident told The Associated Press she had seen her well water continue to drop year after year. “At the end of the day, if there’s not enough water, who’s going to win?” she asked. After a 13-month fight, there was something to savor: The city dropped its fight. Alphabet even tried to spin it as a PR win and declared itself a champion of transparency.
The data turned out to be worth fighting for: The data centers’ water usage had tripled in the past five years, to where it consumes more than a quarter of all water used in the city, according to analysis from Mike Rogoway at The Oregonian.
I Wanted to Clarify That My A** is Covered Award: White House
Backroom dealmakers sometimes struggle to keep their deals in the backroom, especially when they inadvertently reveal them in emails that are presumptively public records. That’s when they follow up by saying, “I wanted to clarify that the email I sent was pre-decisional and privileged information,” hoping these magic words will exempt the email from disclosure should anyone file a records request.
On June 23, 2022, a White House staffer revealed to the Kentucky governor’s office that President Biden planned to nominate Chad Meredith as a federal judge the next day. Days later, the White House official then tried to use the follow-up “clarification” email as cover. But the Louisville Courier-Journal got the story, and the Kentucky governor’s office released the emails confirming the nomination plans, despite the weak follow-up email trying to claw them back into secrecy.
The president ultimately scrapped Meredith’s nomination entirely after pro-choice advocates criticized Biden’s apparent backroom trading on judicial nominations with Senate Minority Leader Mitch McConnell. Meredith had defended Kentucky’s anti-abortion laws under the previous Republican governor.
The whole ordeal, which was overshadowed by the Supreme Court overruling Roe v. Wade on the very day Meredith would have been nominated, shows the ridiculous ways officials will try to keep public records secret.
The Transparently Proud of Destroying Public Records Awards: Michael Gableman
The effort to investigate unsubstantiated 2020 election fraud claims in Wisconsin sped past comedy and into ludicrous land. The driver of this ridiculous journey: Michael Gableman, a former Wisconsin Supreme Court justice who was hired by Wisconsin State Assembly Speaker Robin Vos to investigate alleged election fraud.
Gableman’s inquiry has cost taxpayers nearly $2 million, with no evidence of any election wrongdoing disclosed when Vos shut it down and fired Gableman last August.
The probe itself, however, has generated plenty of violations of state public records laws. Gableman’s inquiry is the subject of at least four public records lawsuits. And in the process of responding to public records requests about his election inquiry, Gableman has admitted to routinely deleting records and deactivating an email account he used while working on the probe.
After receiving a records request from American Oversight, someone deleted Gableman’s personal email account, the former justice testified during a hearing in one of the suits. And when questioned about whether he knew who deleted records responsive to a public records request, Gableman was refreshingly honest.
“Did I delete documents? Yes, I did,” he said.
In Gableman’s defense, he believed deleting the records was proper, because in his view, the destroyed records were not part of his election investigation. The problem is that no one can trust Gableman’s judgment, because there is no paper trail to confirm that the records were, in fact, irrelevant to his work. Gableman’s lack of an auditable paper trail to check his work stands in stark contrast to the auditable results of the 2020 Wisconsin election.
For his records destruction and general frustration of the public’s right of access, courts have awarded plaintiffs $163,000 in attorney’s fees and costs in one case, and $98,000 in another.
The Ancient Art of Dodging Accountability Award: Cyber Ninjas
Wisconsin isn’t the only state where we’re recognizing an election “audit” contractor’s misbehavior.
After the audit of the 2020 presidential election in Maricopa County, Arizona – which ultimately reaffirmed Biden’s victory – State Senate President Karen Fann tried to save face by claiming that the reason the project spiraled out of control was because the election system was hard to audit, and not because auditing firm Cyber Ninjas might’ve been inexperienced and tilting at windmills. That’s kind of like saying it’s the homework’s fault that the dog ate it.
“As our efforts have clearly shown, elections processes here in Arizona are not designed to be easily audited, unlike every other government process accountable to citizens,” she wrote in a statement. “We look forward to implementing improvements to add ease, authentication, transparency, and accountability to our elections processes in the coming legislative session.”
The Cyber Ninjas’ own work, however, was anything but authenticatable, transparent and accountable, as the group tried to evade legitimate public records requests at nearly every turn.
The nonprofit American Oversight and The Arizona Republic newspaper had to take Cyber Ninjas to court in mid-2021 to demand access to audit records. The firm routinely refused to hand over documents, including communications, despite a court order, leading a judge in 2022 to sanction Cyber Ninjas’ founders $50,000 per day.
“I think the variety of creative positions Cyber Ninjas has taken to avoid compliance with this order speaks for itself,” Superior Court Judge John Hannah said. Cyber Ninjas began handing over records last year, revealing connections between the firm and various election conspiracy theorists and lawyers tied to Trump’s campaign and his efforts to overturn the election.
According to The Arizona Republic, Cyber Ninjas’ fines surpassed $10 million, and the firm closed up shop – and yet they still haven’t learned their lesson. The firm continues to withhold and improperly redact text messages and other correspondence. For example, Cyber Ninjas has withheld communications between CEO Doug Logan and prominent election denier Phil Waldron, claiming the messages are covered by legal privilege – even though Waldron is not a lawyer.
The Transparency Tax Award: Mendocino County
The Foilies regularly recounts outrageous public records fees. Those are usually one-off efforts This award to officials in Mendocino County in California is based on their creation of a fee system that appears designed to discourage everyone from requesting public records.
The ordinance lets officials charge you $20 per hour to look for records if you fail to “describe a specifically identifiable record.” So, if you asked for the sheriff’s “Policy 410.30,” you wouldn’t get charged, but if you asked for “all directives, policies and orders related to body-worn cameras,” you might have to pony up hard cash. Even worse, the ordinance says that if you ask for emails or other types of records that “may” include information that needs to be redacted or withheld, the county would charge you $50 or $150 per hour, depending on whether an attorney needs to be involved.
In other words, the ordinance punishes the public for not knowing exactly how the county organizes and stores its records, or what records might contain sensitive information.
Mendocino County’s ordinance is on shaky legal ground. The California Public Records Act does not give state and local government agencies the authority to assess their own search fees, review fees or redaction fees. The law only allows agencies to charge the public what it costs to make copies of the records they seek.
But aside from being potentially unlawful, Mendocino County’s fee ordinance is an affront to its residents. It treats all records requests as hostile, resource-wasting inquiries rather than a central mission of any public agency committed to transparency.
The Burn After Reading Award: Immigration and Customs Enforcement
Though it might be surprising, sometimes an agency will fulfill your request – and realize afterward they’d like to hit the undo button. Generally, however, the First Amendment protects your right to keep the records and publish them, even when the government could have originally withheld them.
That’s what happened to the FOIA warrior and journalist Jason Leopold after Immigration and Customs Enforcement (ICE) used the wrong highlighter when they responded to his request for information on Department of Homeland Security (DHS) activity in Portland, Oregon, in the wake of George Floyd’s murder in 2020.
Leopold asked ICE for communication and documents from the DHS about the training and placement of DHS personnel in Portland that summer and received a “DHS Component Actions Report” in response. Among the information on the report that ICE later claimed was sensitive enough to warrant a gimme-back: the exact numbers of helmets, crowd-control shields, and pepper-spray projectiles that the DHS loaned to the United States Park Police, the police force of the National Park Service.
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