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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: foia, lawsuits, transparency


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    GEMont (profile), 13 May 2014 @ 4:57pm

    ...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.

    -

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.