The Government's Antipathy Towards Transparency Has Made FOIA Lawsuits The Default Process

from the gov't-resorting-more-and-more-to-'make-me'-response dept

This is default mode for the Freedom of Information Act.

In a federal FOIA complaint, the ACLU and University of Arizona Professor Derek Bambauer and Associate Professor Jane Yakowitz Bambauer claim that the Department of Homeland Security has failed to respond to requests made in January and February for records that may “shed light on Border Patrol’s extensive but largely opaque interior enforcement operations.”

The professors seek “records related to U.S. Border Patrol’s interior enforcement operations in Tucson and Yuma Sectors, including relevant agency policies, stop data, and complaint records.”

The CBP (Border Patrol) operates far inland these days with the blessing of the DHS. To live in states bordering Mexico is to have your freedom to travel within the country needlessly interrupted by uniformed officers inquiring about your country of origin.

The CBP’s surveillance technology has also wandered much further inland, far past the so-called “Constitution-Free Zone” that extends 100 miles in from the country’s borders. Its drones, which are specifically to be used for border surveillance, have been loaned out to an assortment of federal agencies and local law enforcement.

The CBP has also become a deadlier force, responsible for 27 fatalities in the last three years. This number has increased dramatically, in part because CBP agents seemed to be looking for reasons to open fire — like standing directly in the path of escaping vehicles.

But this isn’t so much about the CBP as it is about the government’s betrayal of the ideals behind the Freedom of Information Act.

“We shouldn’t have to go as far as filing a lawsuit to get these records,” Professor Bambauer said in a statement. “This is public information about a matter of pressing public concern. We cannot allow DHS and Border Patrol to continue operating in our communities without being subject to public scrutiny.”

No, citizens shouldn’t have to file lawsuits just to get the government to turn over responsive records. And, yet, this has become the expected route to freeing information. Nearly every document handed out by the Office of the Director of National Intelligence has been prompted by a lawsuit. The CBP drone documents mentioned above? Those are also tied to a FOIA lawsuit. Without the court’s prompting, it’s highly unlikely any of the documents the CBP “failed” to turn up during its first FOIA search would ever have been made public.

This is now the standard process for obtaining information from the government, whether at the federal level or below. There are many agencies that handle requests with few problems. But the agencies leaning towards the law enforcement/counterterrorism end of the spectrum are far from compliant. They resist, stall or simply ignore requests, pushing inquiring entities towards the courtroom.

This is completely wrong. A FOIA lawsuit is a remedy. Now, it’s just standard practice. And this goes far past simply unacceptable into sickening territory.

Government agencies are supposed to be accountable to the public that pays for everything they do. The FOIA law is simply a tool of accountability that can be wielded by any citizen. But these agencies have perverted the FOIA system so thoroughly that what was supposed to be a last resort (a lawsuit) is now just another step in the FOIA process.

The DOJ likely has no problem with the DHS, CBP and others blowing off FOIA requests until the judicial system orders them to turn over the requested info. After all, in its ridiculous argument for warrantless cellphone searches, it stated that if people felt the police shouldn’t have had access to their cellphone contents, they could always argue for suppression in court. This is the same mentality. Instead of respecting the limitations set by the Fourth Amendment, the DOJ suggests people should use a remedy (suppression) to hold cops accountable rather than expecting the police to police themselves and avoid violating citizens’ privacy and civil liberties.

These agencies know that not everyone has the time or money to battle for the release of documents, so their exposure is limited should they choose not to comply. It’s extremely hard for a nation’s citizens to hold its government accountable if the government is going to use the citizens’ own money against them.

ACLU, EPIC and the EFF have gone to court time and time again with no greater goal than getting government agencies to comply with a federal law. This ongoing subversion of the FOIA is completely unacceptable. This government is giving the public the finger, letting it know that it will only be accountable when forced to.

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Comments on “The Government's Antipathy Towards Transparency Has Made FOIA Lawsuits The Default Process”

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That One Guy (profile) says:

This government is giving the public the finger, letting it know that it will only be accountable when forced to.

I’m rather surprised they haven’t just gone ahead and enshrined the ‘You get nothing, because we don’t answer to you’ excuse into law yet, given how blatant they are in their contempt for the public.

I mean, it’s already the unofficial policy, might as well make it official and save time.

Loki says:

Re: Re:

Well, as the Declaration of Indepence says: “…and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”

The government, like all governments before that have devolved into authoritarianism, thinks it can wean the population off of freedom and into acquiescence. Eventually, though, they’ll push too far and the gloves’ll come off.

I saw a quote the other day (I think it was Reddit) that pretty much summed the current situation up fairly well: “We’re past the point of a peaceful solution, but shooting is not yet an option.”

Pragmatic says:

Re: Re: Re:

Shooting never will be an option till we get the same options as they have… like that’ll ever happen. It’s why I always advocate against violence. That, and the question of what will happen in the aftermath. I mean, if the guy with the most powerful weapons and the most influence wins, and that guy doesn’t think the way you do, it’ll be Revolution 3.0, won’t it? That’s what scares me.

John Fenderson (profile) says:

Re: Re: Re: Re:

I do think that there can come a day when violent revolution is necessary. I think we’re light years away from that day in the US, though. Violent revolution is an indication of the complete failure of the effort to make the world better. Not only is it inherently immoral, but it’s a hail mary kind of move that is unlikely to result in a better world.

GEMont (profile) says:

Re: Re: Re:2 Re:

That’s because Revolution is a circular movement that takes you all the way around to arrive right back at the place you started from.

What is needed, is evolution, not revolution.

The Fed lives by the sword. They would love nothing more than a national revolution. They have the means to suppress any size uprising and such a situation would let them eradicate all the insurrectionist leaders in the process.

It would allow them to declare martial law nationwide – a dream the fascists hold as the door to eternal profits – placing restrictions on all civilian travel, activity and speech. It would legalize slavery – work-gangs – internment camps – replacement industrial laborers and generally make the conquest of America a done deal.

They are not worried about revolt.

They are worried about common consensus – that all non-millionaire (and non-wannabe millionaire upper-class) Americans will someday agree that enough is enough and pull off a national strike. Simply stop working for the man.

This is why so much of the Fed’s efforts are in designing ways and means of keeping Americans at each other’s throats. It is also why they will put an end to non-commercial internet and social media and why they are recording every communication every American makes.

They are afraid of the public, but not of a violent public revolt. After all, the men and women behind all of this will not be the one’s to fight a violent revolution – their minions will do that for them. And they have a lot of minions. The very process of destabilization necessary to the installation of a fascist state creates the poverty and desperation that produces minions from the ranks of the public.

In other words, the public will fight on both sides of a revolution, while the fat cats sip bourbon in their hill top mansions.

As the rulers put it at the start of the Dark Ages;

Become a soldier in our employ and torture, terrorize and kill the peasants, or remain a peasant and be tortured, terrorized and killed. The choice is yours.

This process even worked in South Africa to get blacks to torture, terrorize and kill fellow blacks for the nazi white land owners. It never fails.

Revolution is a dead end game and only the criminals can win.

Anonymous Coward says:

Is there no penalty?

I guess I should already know the answer to this, but shouldn’t there be a penalty when it’s found that a government agency has withheld information that a court finds that they shouldn’t have withheld?

Is nobody accountable? Shouldn’t people lose jobs over this shit? Shouldn’t the government be forced to not only cover the cost of the lawsuits but also award the plaintiff for wrongfully misleading them and subverting the law?

Anonymous Coward says:

Re: Re: Re: Is there no penalty?

Who is directly responsible though? It’s hopefully not the person who was following department policy, but finding the people responsible for the policy is remarkably difficult… case in point, who was “responsible” for the News International phone hacking policy?

To the GGP, fining the government for the cost of the lawsuit is a little strange, since the government is paying with its citizens’ money anyway. Even better would be killing the departmental legal budgets for fighting bogus FOIA stalling court cases, but is there a way to do that without opening the department up to abuse from frivolous suits that it can’t afford to defend against?

Anonymous Coward says:

Re: Re: Re:2 Is there no penalty?

if the government department looses a FIOA lawsuit the government department as a whole should have its budget docked, each section should be docked proportional to its take of the department budget, this should stop the department shifting the burden on some section it doesn’t like (section policing staff for corruption) and they will insure enough money for the legal section to run.

The government department should be acting within the law at all times. Only a corrupt official has anything to fear from a FIOA request.

Loki says:

Re: Is there no penalty?

Shouldn’t people lose jobs over this shit?

Yeah, Congress. But nobody is voting these people out because they think their guy/party is actually representing them and the problem is the other guy/party. Everyone is to busy listening to what these people are saying and not enough time watching what they are actually doing.

Until enough people finally admit that neither the republican or democratic parties are representative of their respective philosophies or anymore, much less their constituents, things will just continue to get worse.

Anonymous Coward says:

Re: Re: Is there no penalty?

Maybe everything you say is true except the voting them out of office part. That is a huge misconception that the public has a real power here to do anything to these people who act in recent history for the best of corporate interests and their own. In case you hadn’t noticed, America is being sold down the shit tube by these people.

Seegras (profile) says:

Re: Is there no penalty?

Well, you could make it into law, that FOIA requests must be granted unconditionally, and if you want to withhold anything, you need a judge to sign it off; with a penalty if the judge decides otherwise (or sends your document back because of too much blacked out parts).

The trouble is, the DOJ is actually a very bad offender itself. So I’m not sure what really would happen.

Anonymous Coward says:

Every time the government does something like this, it reminds me of the ongoing antibiotics crisis.

They’ve got some last-ditch emergency technique, but they start using it all the time for absolutely everything, so it’s constantly losing effectiveness. Then, if and when an actual major emergency comes along, they try the same thing, but it doesn’t work.

I suppose it also reminds one of The Boy Who Cried Wolf.

art guerrilla (profile) says:

Re: Re:

don’t know if you saw the scientist on teevee on the daily show, but he had some interesting factoids regarding the overuse of antibiotics (glaser ? blaser? his name was something like that, flogging some book on the subject)…

one interesting factoid was, we have 10 TIMES as many bacteria in our body as we do our own cells…
(of course, bacteria are mostly teeny tiny compared to our cells, but still…)
many/most of these are symbiotic critters which help us out for the cost of a little room and board…

so, turns out, we are only 1/10th human after all…

Anonymous Coward says:

Its a new millenium, oh hooray!!

Government agencies are supposed to be accountable to the public that pays for everything they do.

It is a fact that everyone on the public side of the “chain of command” is just lucky enough that the doors of our homes aren’t being smashed in and ‘shoot first ask questions later policies’ aren’t the standard answer to those bothersome FOIA requests, etc..

DogBreath says:

Re: Penalty for non-complliance

If the department improperly declines to fill (including improper redaction) an FOIA request, as determined by the court, then the request must be completed at zero cost to the requestor.

a good start, but I would add:

If the department improperly declines to fill (including improper redaction) an FOIA request again, as determined by the court, then that request must be completed at zero cost to the requestor, and said departments employees retirement and investment funds will be outsourced to a Prince in Nigeria. Upon a third failure, said department will have their entire payroll payout scheme also outsourced to a Prince in Nigeria, effectively obliterating said department because no one works for free. (NOTE: Prince for retirement does not have to be same Prince as payroll).

David (profile) says:

We do have the power

We have the power to reform the government, but it would take a concerted effort by the entire country to vote out the roadblocks. Congress enters reelection mode the day after the last election results are certified.

I personally think anyone who registers as a candidate for President should have to resign any public office they currently hold (federal or state). If you can run around campaigning and still hold your position in Congress (or governor) and nobody misses you, you’re not working hard enough, or don’t have enough work to do.

Some even run for vice president, lose, and just go back to their positions in the Senate. It might eliminate all of those frivilous candidates if they had to resign their jobs.

GEMont (profile) says:

...and one more time....

Yeah, I know its tiring to see the same damn statement made over and over again, but for some reason Americans are incredibly resistant to anything that runs contrary to their fantasy version of the world….

The US Federal Government no longer works for the American Public.

It takes your money and lives on your property, but it answers to other people now, most of which are not even American.

It does not really matter whether you believe this now or not, because very soon, once they get all their ducks in a row, they will inform you all that;

a.) you’re now under house arrest and forbidden to travel without proper papers – (papers please)

b.) that you are all guilty of crimes against the state, until you can prove yourself innocent – (meaning you’re all punishable unless you willingly become collaborators and squeal on your neighbors).

It amazes me no end how often and in how many places this scenario has been repeated here on earth, and it amazes me no end how often the people to who it happens, simply refuse to believe it can happen here until it is simply too late.

In fact, I’m not certain, but methinks that this scenario is universally identical every time and that in no place and at no time, has the soon to be conquered public become aware of the impending assault beforehand.

Obviously, the USA is no wiser than any of the preceding nations that failed to see the writing on the wall.

Well, they say you get the government you deserve.

GEMont (profile) says:

Let's make a paper airplane...

Y’all just don’t seem to get it.

Its THE Federal Government we’re discussing here.

They make ALL the rules and dole out ALL the punishments.

Everything that the federal employees are doing to stymie public access via FOIA to embarrassing documents, is in accordance with the rules and desires of the federal government and thus none of those employees are offending anyone but the public – an offense the fed deems both necessary and comical.

There is no punishment for obeying the rules of your employer when your employer is also in charge of punishment.

The Federal Government has unlimited funding, provided by you the taxpayers, and with this money they can do whatever they want because they are in charge of determining who has broken the law, who needs to obey the laws in the first place, and when a law needs to be altered in order to allow government more freedom of action – and they are in charge of altering any such laws too.

And once they’ve stopped working for the US Public, they can simply determine that they do NOT need to follow a law, by reinterpreting the meaning of any law they wish to circumvent, secretly.

You cannot force them to change, or to do the right thing because they are in charge of forcing people to change, or do the right thing. They can and do ignore the public’s demands utterly and the public can do nothing about it.

You might note that the founding fathers mentioned that it is the duty of the people to occasionally overthrow a government that has become corrupt and unresponsive.

They did not state it was the duty of the people to convince the government to change because they understood that once a government takes the position of conqueror, it can no longer be controlled in any way by the public.

In such a situation, the public becomes the enemy of the state and the government becomes public enemy number one and only armed revolt can win the day – under normal circumstances.

Sadly, that is no longer a possibility and in fact, the federal government would very much love to have the American public take up arms against it.

They now possess the technology to suppress even a full national revolution, and would love nothing more than to get all the insurrectionists in front of their gun-sights at one time.

Talk about sending a message and saving a fortune on propaganda.

The only, and I do mean only possible chance the American Public has of taking back the reigns of power from the corporate and criminal hands that now wield it against them, is a national strike.

If you cannot hit their bosses in the pocketbook, you can have no effect at all on the corporate owned minions who hold public office in the federal government.

Sadly this is highly unlikely simply because Americans are the most divided people on earth, on just about every level and it is very improbable that they could come together to combat an outside force, such as a delinquent federal government.

In fact, it is unlikely they could come together long enough to agree on the construction of a paper airplane.

Anonymous Coward says:


“Instead of respecting the limitations set by the Fourth Amendment, the DOJ suggests people should use a remedy (suppression) to hold cops accountable rather than expecting the police to police themselves and avoid violating citizens’ privacy and civil liberties.”

In a culture that teaches women how to avoid being raped instead of teaching men not to commit rape, this reasoning seems par for the course.

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