The city’s Public Advocate Bill de Blasio, who is running for mayor, recently released a report asserting that a third of all Freedom of Information records requests to the police department were ignored. The numbers are no surprise to journalists who cover the department, such as Leonard Levitt, a veteran cops reporter who now writes at NYPD Confidential.

“All I can tell you is that the NYPD does whatever it wants to regarding FOI requests,” Levitt said. “Which means they never turn anything over, at least not to me. The only time they did respond was after I got the NY Civil Liberties Union involved.”

Back in October 2012, this reporter submitted a public records request for the discharge reports filed by NYPD officers over the previous year.

I filed the public records request on Oct. 1. And then waited. On Jan. 11, I received this response:

In regard to your request, for all weapons discharge reports filled [sic] by officers between January 1, 2012 and September 26, 2012, I must deny access to these records on the basis of Public Officers Law section 87 (2)(g) and 87 (2)(e) as such records/information, if disclosed would reveal criminal investigative techniques or procedures, and or are intra-agency materials. Furthermore, these records are also exempt from disclosure as these records on the basis of Public Officers Law section 87 (2)(e) and Public Officers Law 87 (2)(a) in that such records consist of personell records of a Police Officer and are therefore exempt from disclosure under the provisions of Civil Rights Law section 50-a.

Now, stop and consider this for a second. The NYPD said the public interest of how, when and why its officers use deadly force against the citizens it’s sworn to protect is outweighed by the need to protect the privacy of those same officers. Not only that, the public interest was outweighed by the need to protect its investigative techniques.

A New York judge ruled two years ago — in response to a NYCLU lawsuit, naturally — that discharge reports are subject to disclosure, do not violate officers’ privacy and do not compromise the department’s investigative techniques.

When the emails were finally released last week, after a two-year legal battle, they revealed a desperate public relations campaign in which city officials tried to rally support from prominent women — including Oprah Winfrey, Gloria Steinem, Caroline Kennedy, and Bette Midler — to champion Black's appointment. (I'll admit: never in a million years did I expect my work to result in stories containing the sentence, "Ms. Winfrey couldn't be reached for comment.") In the end, the emails were amusing, slightly enlightening, but largely innocuous.

“I’ve been here since 1974,” Freeman said. “The track record of the police department, particularly in the last decade, indicates in so many instances a failure to give effect to the spirit and letter of the freedom of information law."

“I look back at various mayoral administrations, and my feeling is that there was more of an intent to comply with the law in the era of Mayor [Ed] Koch than there has been since,” Freeman continued. “My sense has been that the downward slope began in Giuliani’s administration.”

• Liberty Fanfare by John Williams, composed in 1986
• Chant and Jubilo by W. Francis McBeth, composed in 1961

Please be advised that the recorded sound of the Marine Band is in the public domain and as such is provided per the FOIA request. However, even though the Marine Band's sound is in the public domain, the musical selections still may have copyright encumberances attached to them. It is entirely the requestor's responsibility to give all necessary notices, acquire all copyright clearances, and pay all required fees as necessary for any use of copyrighted music. Every music title should be researched. We cannot relieve anyone of their responsibility to obtain licenses or permission from the various copyright holders and/or music publishers involved. Neither the Marine Corps nor the Marine Band accepts any responsibility for any use of Marine Band sound other than our own distribution

And when is that expiration date? That's complicated, partially since Williams, whose soundtracks often seem to singlehandedly power Hollywood, is still alive: copyright covers the life of the artist, plus 75 years for good measure. We wish Williams the best and, with unbound optimism, hope he will live to 115. Thus we estimate that we'll be able to post the music in 2122.

But copyright also has a pesky habit of extending itself, again and again. The Copyright Act of 1976 set copyright protection to last life of author plus 70 years, and then the 1998 Copyright Term Extension Act extended copyright to life of author plus 75 years, with some special cases.

When I asked one of our legal advisors when we could safely release the files, I was told, "Never."

In June 2007, I filed a Freedom of Information Act (FOIA) request to learn more about the basis for Google's complaint that Microsoft's implementation of desktop search in Windows Vista violated the terms of its 2002 antitrust consent agreement.

In September 2011, I was notified that material relevant to my request would be provided, with a $15 fee to cover copying costs. I sent the check the following month and it was cashed in November 2011. It then took more than a year of hectoring the Department of Justice and the intercession of the Office of Government Information Services to actually get the "responsive materials." The documents arrived in late March.

After six years, the truth can finally be told. What follows is an excerpt from an email sent by Kulpreet Rana, Google's director of intellectual property, to Justice Department attorney Aaron Hoag, dated Oct. 4, 2006.

Thanking Hoag for taking the time to meet the previous week, Rana wrote, "During that meeting, you raised a few questions that we wanted to follow-up on. Rather than waiting to get all of the answers, I wanted to get back to you on some of the more pressing issues...probably the most important of which is REDACTED."

This goes on for an entire page. It's a gray box of nothing.

The dozens of email messages provided in response to my FOIA request look just like this: Page after page of gray where text should be. Only the email addresses, the signatures and the legal and social boilerplate have been left intact.

The pages that the Justice Department saw fit to release include news articles from the New York Times, Reuters and other publications about Google's complaint. The entirety of the "responsive material" either has been available to anyone with an Internet connection for years or consists of names, salutations, thank yous and nothing else.

The conservative government accountability organization Judicial Watch recently received an official response letter to a Freedom of Information Act (FOIA) request the group submitted in September 2002 — nearly 11 years ago.

“It’s quite common for federal agencies as well as the White House to flip the finger at FOIA requests that could expose wrongdoing or shed a negative light,” Judicial Watch wrote in a blog post Tuesday. “In fact, JW often must file lawsuits to get ‘public’ records that should not require litigation to obtain. In this particular case, it took the DIA and NSA a whopping 11 years to determine that the information falls under the ‘release authority’ of a different agency—the Naval Criminal Investigative Service (NCIS).”

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Creates the Internet Posting Removal Act. Provides that a web site administrator shall, upon request, remove any posted comments posted by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

A WEB SITE ADMINISTRATOR UPON REQUEST SHALL REMOVE ANY COMMENTS POSTED ON HIS OR HER WEB SITE BY AN ANONYMOUS POSTER UNLESS SUCH ANONYMOUS POSTER AGREES TO ATTACH HIS OR HER NAME TO THE POST AND CONFIRMS THAT HIS OR HER IP ADDRESS, LEGAL NAME, AND HOME ADDRESS ARE ACCURATE. ALL WEB SITE ADMINISTRATORS SHALL HAVE A CONTACT NUMBER OR E-MAIL ADDRESS POSTED FOR SUCH REMOVAL REQUESTS, CLEARLY VISIBLE IN ANY SECTIONS WHERE COMMENTS ARE POSTED.

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.

The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London

First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

Two key memos outlining the Justice Department's views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. 

The word "see" is obviously some sort of joke because there's absolutely nothing to "see" here, unless you consider To, From and Subject fields to be the "smoking gun." Oh, and this one paragraph that leads into 56 straight pages of black ink.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.

The Justice Department's unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department's secret opinions about the Patriot Act's Section 215 — that simply should not exist in a democratic society.

[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there's no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.

The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.

Last week, Digital Journal reported that the documents obtained by PCJF detailed how the FBI cooperated with the Department of Homeland Security, US military and private corporations to monitor and investigate Occupy Wall Street protesters as "domestic terrorists" and "criminals." The documents prove that federal agencies are "functioning as a de facto intelligence arm of Wall Street and corporate America," PCJF said.

Thorough analyses of the documents has now revealed a heavily redacted file that clearly mentions a plan to use snipers to assassinate Occupy protesters. The names of the groups or individuals involved in the murderous plot have been redacted, so it is impossible to identify them at this time. What is known is that the FBI never alerted any of the potential victims of the danger to their lives.

An identified [redacted] of October planned to engage in sniper attacks against protesters in Houston, Texas, if deemed necessary. An identified [redacted] had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio and Austin, Texas. [Redacted] planned to gather intelligence against the leaders of the protest groups and obtain photographs then formulate a plan to kill the leadership via suppressed sniper rifles.

Attached is the quotation recently provided to the SD Sheriff's CID team. They visited Datron's facility and experienced the system with all three cameras and left with a flashdrive full of personal footage and a new found purpose for submitting their wish-list early. Use this quote as a reference point for configuring your system. With this we should be able to tailor an ideal system for your needs and gain marketing support for 'special pricing' specifically for Seattle PD.

As is true in most states, California's public records law provides that documents related to equipment purchases are matters of public record unless exempted by statute. Accordingly, the San Diego County Sheriff and other public agencies have the latitude to justify denial of public records requests, but not to "deny comment" when faced with such a request.

But public records law puts the burden of evidence not on those who seek disclosure, but on those who would keep them from public view. Evidence Code section 1040 of California's disclosure law, which the San Diego County Sheriff's office has invoked as a basis for its denial, provides that public agencies may refuse to disclose official information in the case that such disclosure "is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice."

The onus is on the Sheriff to demonstrate how releasing the documents sought by MuckRock would injure the public interest.

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

• Any guidelines or protocols for ICE agents about the procedures for seizing domains
• Any communications between ICE and other government agencies with regard to the seized domains
• Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
• Any court filings requesting authorization to seize domains
• Any internal emails mentioning the seized sites
• Any legal memos mentioning the seized sites

Nineteen of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information: The cost of travel by top officials. In all, just eight of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act.

The travel costs generated by some other Obama officials --Transportation Secretary Ray LaHood, Energy Secretary Steven Chu, Environmental Protection Agency Administrator Lisa Jackson, and Homeland Security chief Janet Napolitano -- also remain undisclosed.

A request made in June for the travel records of Susan Rice, the U.S. Ambassador to the United Nations, will remain unfulfilled for more than a year, according to a federal official involved in the case.

“We really appreciate your patience in this matter. The estimated completion date is July 2013,” wrote Chris Barnes, a State Department FOIA official, in a Sept. 24 e-mail. Under FOIA, the department is required to offer a timetable for delayed responses.

Eric Newton, senior adviser at the Knight Foundation, a Miami-based group that promotes citizen engagement, said agencies have no excuse not to rapidly disclose travel costs.

“In a 24/7 world, it should take two days, it should take two hours,” Newton said. “If it’s public, it should be just there.”

Responsive agencies were able to redact personal details within the FOIA time period. The Federal Housing Finance Agency, the chief regulator for Fannie Mae and Freddie Mac, provided the travel expense records for Acting Director Edward DeMarco’s six trips out of town within 15 days of the filing.

DeMarco’s trips cost $5,653.29, the documents show. Personal information such as his Social Security number and home address were blacked-out in the file.

The administration acknowledged systemic issues with the FOIA process when the Office of Management and Budget issued guidelines Aug. 24 to all federal agencies on how to streamline government information. The memo called for all government information to be stored in an electronic format by December 2019 -- almost three years after the end of a potential second Obama term.

Having appealed the denial of my request, I got an impressively prompt reply on Tuesday evening from the director of the Office of Information Policy at DOJ, assuring me that she recognized the agency's initial response had been "incorrect," and that a new one would be forthcoming immediately. By Wednesday morning, their stance had changed entirely: They had found the reports I sought, and were forwarding them to the Office of the Director of National Intelligence (ODNI) for review to determine what would need to be redacted before release--with a request that ODNI seek to expedite its analysis to compensate for their own delay.

Now, to be sure, I'd rather have had this response a month ago, and the documents before the House vote, but at this point DOJ appears to be doing exactly what they're supposed to and making a good faith effort to facilitate the redaction and release of these important assessments. So it seemed appropriate to follow up on my initial blog post to acknowledge that--and in particular Office of Information Policy director Melanie Pustay, who straightforwardly acknowledged the error and acted quickly to correct it. We'll see soon enough whether a similar spirit of transparency reigns at ODNI.

Cross-posted from Cato-at-Liberty.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

Yesterday morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Cross-posted from Cato at Liberty.

This Court should find that such an arrangement is uncon-stitutional. More than thirty years ago, the U.S. Supreme Court recognized a presumptive right of access to criminal proceed-ings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). As discussed below, the Court has reiterated its holding repeatedly, and the nation’s military courts have applied the same reasoning to extend this right of public access to courts-martial. Amici recognize that various interests, including the need to protect national security information, may justify sealed records in certain circumstances. They do not, however, general-ly justify complete secrecy. In fact, previous disputes about claims of national security have been litigated in the open: “Briefs in the Pentagon Papers case and the hydrogen bomb plans case were available to the press, although sealed appendices discussed in detail the documents for which protection was sought.”

The logic is simple: When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement that "there exist no records responsive to your FOIA request" is wholly accurate....

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

• Eight agencies failed to respond within the five-business-day deadline they are given to make the information available, deny the request with a reason, or provide an approximate date when the documents will be ready.
• Some agencies expressed disdain for answering queries. Concerning a related question on FOIL requests, a city Housing Preservation and Development staffer wrote in an email to a records officer that “this is the kind of crap I have no patience for.” Incidentally, HPD was the fastest agency to respond to amNY’s initial FOIL request, taking two days.