Legal Issues

by Tim Cushing


Filed Under:
battleship, cia, dhs, direct hit, exact, foia



Judge Says FOIA Isn't Battleship; Requesters Don't Need To Score Direct Hits To Obtain Documents

from the nine-page-judicial-eyeroll dept

Government agencies will eventually follow the letter of FOIA law. It usually takes a lawsuit to push things forward, but even losing in court seldom prompts above-and-beyond service from the government. The spirit of the law is ignored in favor of obfuscation, foot-dragging, and blatant antipathy.

Certainly the government shouldn't be expected to compose FOIA requesters requests for them if they send vaguely-worded requests. On the other hand, the government shouldn't demand specificity from requesters who don't know what documents an agency has on hand or how the search will be conducted.

The CIA once told a requester he needed to know exactly which parties were involved in communications about the agency's FOIA portal outage -- information that could only be gleaned from the emails the CIA was refusing to look for until it had more information. This is the normal level of being dicked around that requesters can expect when dealing with our more reticent public agencies.

"Vagueness" was the CIA's excuse to not perform its FOIA duties. The DHS, on the other hand, has decided specificity in requests can also be used against requesters. A FOIA lawsuit filed by the Government Accountability Project contends the agency did a deliberately lousy job searching for records related to border phone searches and ideological assessments performed by border security personnel.

The federal judge agrees. The opinion [PDF] notes the DHS has turned the FOIA process into a game -- one requesters aren't likely to win. [h/t Mike Scarcella]

This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a fleet of plastic warships on a secret grid and alternate directing “shots” at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target.

Plaintiff Government Accountability Project (“GAP”) asked for any records in the Department of Homeland Security’s (“DHS”) possession that related to “ideological tests” and “searches of cellphones” at the U.S. border. The agency obliged in a manner consistent with the rules of Battleship. It canvassed its electronic records for direct hits, looking only for records that contained the verbatim language GAP used in its request. For the first search, it used the terms “ideological tests” and “border”; for the second, it used the keywords “search” and “cellphone.” After the searches yielded zero responsive documents, GAP complained that DHS unreasonably omitted additional search terms that quite likely would have generated a more robust return. Because FOIA requests do not operate like a game of Battleship—and for other more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew.

Somehow the DHS failed to come up with any responsive emails related to border cellphone searches or ideological tests -- both items heavily-discussed in the news and in Congress. While the DHS did manage to find 965 megabytes of responsive records for "search" and "cellphone," its staffers decided none of the 807 documents were actually responsive to GAP's request.

GAP argued the DHS's searches were deliberately structured to steer around responsive documents. The court again agrees, pointing out it's the government's duty to help requesters obtain the documents they seek, not be deliberately obtuse.

[T]hough a “requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotation omitted).

The court addresses the DHS's seemingly-deliberate obtuseness in a footnote, pointing out things its FOIA response team likely knows, but chooses not to deploy to reduce the number of documents it has to hand over.

The Court appreciates DHS’s concern that searches for commonly-used words like “cell,” “phone,” and “test” may return too many records for the agency to digest. But that concern dictates using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level.

Doing simple things like these -- which anyone in an FOIA position should know how to do -- would produce responsive documents far more frequently than restricting the first search to "ideological test," which likely omitted documents containing both of these words but not in that specific order. The same goes for the second request, which requires uses of variations of "cellphone" to capture relevant documents. It appears the DHS had no interest in fulfilling this request or the spirit of the law -- something made doubly clear by the fact that the DHS did not even start searching for records until it was sued… five months after receiving the request.

FOIA law serves the public. It is not in place to serve the government agencies that are supposed to be serving the public. The only reason the law exists is because agencies will never be proactively transparent. They need to be forced to be transparent, and even then, they do what they can to avoid the responsibilities placed on them by this legislation. More decisions along this line will dissuade bad faith search efforts. But when legal fees are awarded, it's taxpayers who ultimately pay the price for malfeasance committed by agencies they fund with even more of their tax dollars. So the effect will be present, but the buffer zone of other people's money will definitely mute the effects.


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  • identicon
    Anonymous Coward, 22 Oct 2018 @ 5:34am

    At some point this type of obstructive behavior on the part of the DHS needs to start coming with charges. "Obstruction of justice. Criminal negligence." Etc.

    If taxpayer dollars serve as a penalty buffer, too, then people need to start being directly liable. Not the lower level staffers, mind, but the people in supervisorial positions who are setting policy and direction.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2018 @ 9:04am

      Re:

      Not the lower level staffers, mind, but the people in supervisorial positions who are setting policy and direction.

      Well, it depends. If the person is following their department's FOIA policy, then yes, the person setting that policy should be liable. If they're not, then the person should be held to account for not following the policy,

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 23 Oct 2018 @ 1:03am

      Re:

      Just imagine how the government would react if someone responded to a subpoena the way government agencies respond to FOIA requests.

      reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 22 Oct 2018 @ 7:55am

    "But that concern dictates using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level."
    I got here and just had to know who:

    CHRISTOPHER R. COOPER
    United States District Judge

    The embed wont go past page 6 even when choosing Pages> #9.

    reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 22 Oct 2018 @ 11:41am

    New EZ-to-Use DHS FOIA Request

    Please submit your FOIA request as a nested JSON object, structured to include:

    • the name of each document to search
    • starting index of each substring of interest
    • length of each of these substrings
    • the regex you would like used

    Note: all DHS files and records are stored in encrypted form for security purposes, and only ciphertext will be searched. Should you require a plaintext search, simply submit our private key to us.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 22 Oct 2018 @ 8:26pm

      Re: New EZ-to-Use DHS FOIA Request

      simply submit our private key to us.

      With the way TLAs like tye NSA have been leaking sensitive tools, filfilling that requirement could be easier than it sounds.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 22 Oct 2018 @ 12:39pm

    AND...

    "The spirit of the law is ignored in favor of obfuscation, foot-dragging, and blatant antipathy. "
    Outright lying..

    "he government shouldn't demand specificity from requester's"
    Like walking into a NEW library and looking for the card catalog??

    "(DHS)contends the agency did a deliberately lousy job searching for records related to border phone searches and ideological assessments performed by border security personnel. "
    And misconstrued and Fabricated and added mis-info to exaggerate and confuse the issues.

    AND, are they doing the job they were created for, or going Above and Beyond..

    And who are we paying for these NEW Policing agencies..

    reply to this | link to this | view in chronology ]

  • identicon
    Name, 23 Oct 2018 @ 4:55am

    It's not Battleship, it's more like Go Fish

    Seems to me it's more like Go Fish with a stacked deck.

    reply to this | link to this | view in chronology ]


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