Freedom of Information Act (FOIA) requests are a popular topic here on Techdirt. We've discussed how important FOIA rules are... and how the government seems to go out of its way to try to ignore both the letter and spirit of the law. Because that's just how secretive governments act. However, it's certainly true that some FOIA requests are a little more ridiculous than others. Take, for example, Refinery29 reporter Vanessa Golembewski's amusing decision to file a FOIA request for Game of Thrones Screeners after finding out that the producers have been sending advance screeners to President Obama. Showrunners David Benioff and Dan Weiss admitted in an interview that they sent the screeners:
“I think, for both of us, finding out the President wanted advanced copies of the episodes was an ‘ah-ha’ moment,” Weiss said. “That was a very strange moment.”
And did they say yes?
“Yes,” Weiss replied. “He’s the leader of the free world.”
Benioff added: “When the commander-in-chief says, ‘I want to see advanced episodes,’ what are you gonna do?”
So Golembewski decided that if the President had them, she could (and should!) FOIA them:
I decided this was a perfect opportunity to test the limits of the Freedom Of Information Act. If the president — and by extension, our government — is in possession of a file, surely that file is subject to my request to see it as a U.S. citizen.
Golembewski is pretty upfront in recognizing the chances of this actually working are slim to none, but still decided to go through with the process. Of course, it's going to get rejected. In fact, we've seen similar requests in the past. Back in 2013, we wrote about a (more legit) attempt to FOIA the backing track to Beyonce's rendition of the Star Spangled Banner at the inauguration. The composition was in the public domain, and the performance, recorded by the Marine Corps. Band, should also be public domain, as it's a work of the federal government, which is not subject to copyright.
And, indeed, the government did provide the music in question, but also warned that some of the other songs that were sent may have other copyright issues. More importantly, the government flat out rejected the request for any Beyonce related music, noting that the copyright was held by her, and not the government: "Please note that Ms. Beyonce Knowles-Carter's vocals/music do not belong to the Marine Corps. Therefore, you will have to send your request directly to Ms. Knowles-Carter's attorney..." Though, they did helpfully provide that attorney's name and contact info. I imagine that Golembewski may receive a similar note, since the President does not also get the copyright in those screeners.
Given the heightened interest in the government's efforts to compel companies like Apple to break into their own products for them, the EFF figured it would be a good time to ask the government whether it had used FISA court orders to achieve these ends.
Naturally, the government would rather not discuss its efforts to force Apple, et al. to cough up user data and communications. Hence the secrecy surrounding its use of NSLs, subpoenas and gag orders. Hence, also, its desire to keep cases involving All Writs Acts orders under seal if possible. Hence also (also) its refusal to discuss the secret happenings in its most secret court.
The EFF filed FOIA requests with the DOJ in October of last year and followed up with more in March. The October request sought documents about FISA court decisions related to requests for technical assistance from US companies. After a few months of back-and-forth, the DOJ claimed only two responsive documents were found -- neither of which was a court decision… and neither of which would be released.
The EFF's most recent request broadened the search parameters in hopes of landing more responsive documents.
Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” issued from 1978 to June 1, 2015, “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’”
It also requested the same documents for the period of June 2015 to the present. As of this point, it has yet to receive a response.
The EFF is now suing the DOJ for wrongfully withholding responsive documents and other violations of FOIA regulations, including "performing inadequate searches."
The documents it's seeking are of significant public interest, especially now that the FBI's All Writs-enabled technical assistance demands are at the center of a second war over encryption. As staff attorney Nate Cardozo points out, the devices and services used by millions of Americans shouldn't be subject to the whims of secret courts relying wholly on government ex parte presentations and submissions.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” said Cardozo. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”
Later today Pratheek Rebala reached out to mention that this data is available publicly, and there were 8 other payments as part of the same award, totaling $1.4 million; the document I have is one part, totaling $336,000. Furthermore, there were 4 bids for the contract and IBM won the bidding.
Because these are FOIA documents, some information has not been freed. (See: FOIA Exemption: SOP) This makes it difficult to narrow down the amount of the contract that went just to the random number/arrow generator.
Here's a blurry photo of the app in use, overseen by a TSA agent wearing the regulation genital-fondling gloves.
The TSA -- presumably appropriately shamed for spending $1.4 million on an app someone could build for several hundred thousand dollars less/without IBM's awesome computing power during their spare time -- began reaching out to those covering this story with a correction.
The total development cost for the randomizer app was $47,400, a TSA spokesperson told Mashable, which was part of the $336,413.59 contract.
No further details were provided. This clarification suggests the TSA only comically overpaid for its "randomizer" rather than tragicomically overpaid for its digital coin flipper.
It's not that the app doesn't serve a purpose -- although it does so in an overpriced, underwhelming fashion. The TSA had two concerns to address. First, it didn't want to be viewed as "profiling" when "randomly" selecting people for extra scrutiny, as it had in the past.
You're OK. You're OK. You're… brown. Come this way. You're OK. You're OK. You're… an infant. Please follow me.
Second, it had to actually randomize the outcome to deter would-be terrorists from gaming the system and bypassing the Director's Cut of the TSA's Security Theater.
So, it handled it as government agencies are supposed to. It made a list of requirements, opened up the floor for bidding, awarded the contract, and (most likely) watched deadlines and budget targets sail past like passengers granted instant Pre-Check approval just because the lines were getting a little long.
Now, it's probably not quite as ridiculous as it first appears -- all of this money devoted to a left/right arrow generator. The app would need to be both tamper-proof and idiot-proof and combining the TSA and IBM on a project is going to generate a lot of overhead costs. The total may also include the purchase of a few hundred iPads, which aren't exactly easy on the wallet.
But in the end, it's $50,000 for a random number generator with a lackluster front-end being run by a Wal-Mart greeter but for potential terrorists. And to date, it has yet to direct a would-be terrorist into the waiting arms of secondary screeners.
On Monday, President Obama gave a speech about journalism in Washington DC, in which he bemoaned the state of investigative journalism today, suggesting that the lack of good investigative journalism is partly to blame for the mess that is this year's Presidential election season:
A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability, especially when politicians issue unworkable plans or make promises they can’t keep. (Applause.) And there are reporters here who know they can't keep them. I know that's a shocking concept that politicians would do that. But without a press that asks tough questions, voters take them at their word. When people put their faith in someone who can’t possibly deliver on his or her promises, that only breeds more cynicism.
There's plenty in the speech that I certainly agree with. The state of media coverage that has moved towards shallow entertainment and he said/she said journalism is sad. And it's good that the President called out that kind of stuff as well:
I think the electorate would be better served if we spent less time focused on the he said/she said back-and-forth of our politics. Because while fairness is the hallmark of good journalism, false equivalency all too often these days can be a fatal flaw. If I say that the world is round and someone else says it's flat, that's worth reporting, but you might also want to report on a bunch of scientific evidence that seems to support the notion that the world is round. And that shouldn’t be buried in paragraph five or six of the article.
He also highlighted some strong investigative reporting from the past and claims he's dismayed that we're seeing less of that today:
Whether it was exposing the horrors of lynching, to busting the oil trusts, to uncovering Watergate, your work has always been essential to that endeavor, and that work has never been easy. And let's face it, in today’s unprecedented change in your industry, the job has gotten tougher.
But he leaves out his own administration's actions as a big part of why the job of reporting has "gotten tougher." While he came into office promising "the most transparent administration in history" and one of his first official actions as President was to tell the entire federal government to default to revealing information in response to Freedom of Information Act (FOIA) requests, as we've detailed over and over again, the administration has actually been one of the most opaque, setting records for denying FOIA requests, and making it nearly impossible to get any information out of the government without a lawsuit.
Former NY Times Executive Editor, Jill Abramson, who's worked in journalism in DC for decades, noted that the Obama administration was the most secretive, by far.
"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.
And part of her complaint was not just in how the administration refuses to reveal anything, but also in how vindictive the White House was against reporters and sources.
The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.
"Day-to-day intimidation of sources is also extremely chilling," she said.
Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.
"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."
And then, of course, there are the criminal lawsuits. The Obama administration has used the Espionage Act against more journalists and leakers than every other President in history combined... and doubled. And, as of two years ago, he had put media leakers in jail for nearly 50 times as long as all other administrations combined.
That is not supporting investigative reporting. That is threatening and intimidating journalists and their sources. Creating true chilling effects and scaring people away from doing the very work that the President insists the media should be practicing.
Way back in 2011, I saw Daniel Ellsberg speak, and he speculated that a key reason why President Obama was so incredibly hostile to a free and open press was because he was embarrassed by his own actions that they were investigating. Ellsberg pointed out that the previous president, George W. Bush was known for widely abusing the power of his position, but he seemed proud of doing so. President Obama, on the other hand, got elected with promises of moving away from such abuses and restoring civil liberties. But that didn't happen. Things went in the other direction under his watch and his command. So you could understand why the President remains less than keen about leaks and the media digging into things like mass surveillance of Americans, or secret drone bombing campaigns.
It's a shame that the President feels the need to berate reporters over failing to do real investigative reporting, when a big part of the issue is his own administration's concerted effort to make that much more difficult.
We've been noting for years: when Senator Ron Wyden says that (1) there's a secret interpretation of a law that is at odds with the public's understanding of it, or (2) that government officials are lying, you should pay attention. It may take a while, but it always comes out eventually that he's absolutely correct. For at least five years now, we've been posting semi-regular updates to Wyden calling out the government for its secret interpretations of the law, and some of that was proven entirely accurate thanks to the Snowden revelations concerning how the PATRIOT Act and the FISA Amendments Act had been interpreted. However, since the Snowden revelations, Wyden has made it clear that that's not all. In particular, he's spoken about a Justice Department legal opinion, written by John Yoo, that Wyden insists is important and should be revealed.
As you may be aware, I have previously written to the Department of Justice regarding a
particular secret legal opinion from the DOJ's Office of Legal Counsel. which has now
been the subject of a recent suit under the Freedom of information Act. This opinion
remains classified, but it pertains to common commercial service agreements. The DOJ's
motion to dismiss the now-pending FOIA case also noted that this opinion was signed by
Deputy Assistant Attorney General John Yen and dated March 30, 2003.
As I have noted in previous correspondence with the DOJ, I believe that this opinion is
inconsistent with the public's understanding of the law, and should be withdrawn. I also
believe that this opinion should be declassified and released to the public, so that anyone
who is a party to one of these agreements can consider whether their agreement should be
revised or modified. For these reasons, I encourage you to direct DOJ officials to comply
with the pending FOIA request.
As we noted in our previous coverage, the contents of this memo almost certainly impact the various cybersecurity issues, in particular the Cybersecurity law (a variation on CISA) that passed and became law late last year.
But, the much bigger news comes in the following paragraph, in which Senator Wyden says that the DOJ is lying to the court in trying to kill the ACLU's FOIA request:
Additionally, I am greatly concerned that the DOJ's March 7, 2016, memorandum of law contains a key assertion which is inaccurate. This assertion appears to be central to the DOJ's legal arguments, and I would urge you to take action to ensure that this error is correct.
I am enclosing a classified attachment which discusses this inaccurate assertion in more detail.
You can see the DOJ's memorandum of law here (or embedded below) to see if you can sniff out the "key assertion which is inaccurate." Marcy Wheeler, who is damn good at this stuff, has some suggestions and thoughts, though each has some caveats. Either way, just the fact that this is a guessing game is ridiculous. The fact that the DOJ appears to be purposely misleading the court is a travesty -- but one that has become all too common these days.
In the meantime, are there any legal opinions that John Yoo authored that didn't turn out to be absolutely horrific? He wrote the legal opinion that authorized torture. And just a few weeks ago, another one of his ridiculous legal opinions (from 2002) was released, revealing his absolutely ridiculous legal rationale for warrantless wiretapping. Yoo seemed to specialize in trying to paper over basically anything illegal that the government wanted to do.
The list of possible indicators is so broad as to cover nearly the entirety of the government's workforce -- not just those with security clearances.
(U)Insider Threat Motives
Greed or financial difficulties Disgruntled or wants revenge Ideology Divided loyalties Vulnerable to blackmail Ego/Self-lmage lngratiation Family/personal issues
To be seen as a threat by the government, one only needs to experience the rigors of everyday life, like "financial difficulties" or "family issues." If a person's viewpoint is not totally aligned with the agency they work for, the person may be viewed as holding a hostile "ideology" and will likely be "disgruntled."
The document also has a list of indicators related to job functions. Any straying from the confines of the position could be viewed as threatening.
(U) Behavior Indicators
Interest in matters outside their scope of responsibilities. lnappropriately seeks to obtain classified information on subjects not related to their work. Downloads/transfers information without proper authorization or need via media devices or email. Deliberate and unnecessarily copies of documents or media. Works unusual times outside normal duty hours. Unexplained affluences. Engaged in suspicious personal contacts. Unreported foreign contacts. Overwhelmed by life crises and/or career disappointments. Compulsive and destructive behavior.
The following page of the report shows this part of the Insider Threat program is specifically based on Chelsea Manning, as every single one of these items is listed under "PVT. Manning's Behavior Indicators." That includes the mysterious "Unexplained affluences," which continues to go unexplained in the detailing of Manning's behavior. (I would assume this refers to outward signs of wealth not supported by pay grade, but the report just tosses the ungainly wording into the list without specifying what it is, how it's determined, or how it applies to Manning.)
Somewhat comically, Manning's assigned shift is referred to as being "outside normal duty hours."
Works unusual times outside normal duty hours.
PVT Manning utilized his 12 hour shift from late evening (~7pm) until the morning (~7am) to conduct his illegal activity.
As The Guardian points out, documents obtained by Steven Aftergood of the Federation of American Scientists show over 100,000 government employees have already been targeted for insider threat surveillance. The program calls it "continuous evaluation," which is the government's innocuous terminology for surveillance of all activities, including those outside of work, like financial transactions, political affiliations and activism.
In total, the report does almost nothing to allay fears that the Insider Threat program will be used to hunt down whistleblowers. Manning's report indicates the government feels advocates for transparency ("promoted the ideology that all information should be public") and people who don't fit into binary gender confines ("[Manning] struggled with his self-image as a man when he wanted to be openly accepted as a female") should be subjected to pervasive surveillance by their own government.
The bottom line is that even if an employee is otherwise satisfied with their government employment, they still need to "fit in" with fellow employees, live a life mostly free of financial or personal stress, advocate only for their employer's official/unofficial positions and hopefully identify as straight male/female. Anything outside of these confines is asking for trouble. Whistleblowers don't even stand a chance.
This week is Sunshine Week, and the good folks over at FOIA site Muckrock.com have encouraged us to repost this wonderful/horrifying post on the worst FOIA redactions. You can also view the original MuckRock's FOIA redaction hall of shame over at their site.
If you only have a hammer, then every problem looks like a nail — and as we've learned over the years from many an overenthusiastic FOIA officer, if you only have a Sharpie, then every document looks classified. As part of our Sunshine Week coverage, we put together a list of the most ridiculous redactions we've (un)seen.
And this one, a horrifying short story in its own right.
B(6), the Beyoncé Exemption
In 2013, there was controversy abounded when The Times of London alleged that Beyoncé's perfect rendition of the "Star Spangled Banner" during Obama's second inauguration was the work of lip-syncing. Unperturbed, MuckRock's founder Michael Morisy seized on this as an opportunity to use FOIA to release those tracks, providing public-domain Bey for all. Sadly, his efforts were thwarted by a combination of FOIA not working that way, and of all things, John Williams. Yes, that John Williams.
Adding insult to injury (a phrase that will come up more than once in this article), Michael's follow-up request for the processing notes on his request included a very notable omission.
Well, apparently there's a inter-departmental competition on wasted ink, because earlier this year, fellow DOJ component the federal Bureau of Prisons responded to Beryl Lipton's request for contracts with nearly 150 functionally blank pages ... and to add insult to injury (see?), each page was rendered in an inexplicably hideous shade of bureaucratic yellow.
Adding additional insult to the already insulted injury, this was a physical release, so each of those pages had to be scanned in manually.
The CIA's Redaction Game Goes Meta
While we wrote about this just last week, we're only now grasping the implications - the CIA spent over a year on John Kirsch's request regarding JFK assassination researcher Mary Ferrell, and their final response was just a copy of his original request, with the very dead Ferrell's social security number scratched out.
Which means the CIA have achieved the impossible and managed to release less information through FOIA than we had to begin with. Begrudging respect, that's taking "less is more" to the next level.
The DEA's Pretty Sure You're Okay with
Back in 2014, CJ Ciaramella received training slides from the DEA regarding the sinister-sounding, and ultimately, sinister-being practice of "parallel construction," which encourages agents to hide evidence chains obtained from covert surveillance techniques, particularly the ethically ambiguous ones. To that end, the instructor differentiates between methods that Americans are chill with and ones that they are decidedly less chill with. Number one among chill-with methods is .
While the fact that this method is so acceptable you don't even need to know its name might raise some eyebrows, this next slide should assuage all your lingering legal doubts.
See? Nothing to worry about.
Somehow, what was left in the slides manages to be even less comforting that what was taken out - including some not-at-all-inappropriate Dirty Harry trivia to make sure folks are paying attention.
The IRS's Mission: Incredible Waste of Time and Money
Last year, Alex Richardson filed several requests to the IRS regarding their embattled Whistleblower's Officer, which has been charitably described as "intentionally undermined." Seeing as the agency had already gone far enough to break out the "neither confirm nor deny" denial on the subject, we didn't get our hopes up ... which is why we were caught off-guard when a CD of "responsive documents" arrived in the mail.
Even more enticingly, the CD was encrypted, with a note that further instructions would come in the mail. Cue strings.
Sure enough, a day later those instructions came, and even though they were a tad on the underwhelming side (the passcode turned out to be "FOIAis" and the tracking number) we were eager to get our hands on the obviously valuable information contained therein, which turned out to be ... six completely redacted pages.
At least one staff member self-destructed in 30 seconds.
Finally, to add iInsult to iInjury, the encryption program only works on Windows - so Apple users can't even access the nothing they've got.
The NYPD's Pigpen Exemption
Not all redactions are intentional - after Shawn Musgrave successfully fought the NYPD's claim that he hadn't "reasonably described" the very specific form he had requested by using the very specific form number, they relented and handed over a copy. Although, apparently, first they rubbed a diarrhetic squid over it...
...and then they handed over a copy. Significantly more legible was the cover letter that came with the release, demanding a $1.25 for copying fees. Insult, injury, etcetera.
In a rare FOIA-ry Tale ending, Shawn pushed back on grounds that, well, he was kinda actually hoping to read the thing, and the NYPD coughed up a clean copy. As for our calimari friend, looks like they were adopted by the FCC.
The Sobering, Staggering Conclusion
Five years ago, before everyone and their libertarian uncle were up in arms about bulk data collection, Jason Smathers requested talking points from the NSA. Nearly two years later, this request produced perhaps the pinnacle of the FOIA officer's art form - "These are sobering findings."
Often imitated ...
...but never duplicated, we keep the original copy above the MuckRock coffee machine as a daily reminder that sunlight isn't just the best disinfectant...
...but it's a pretty decent check on self-importance, too.
State Sen. Mark Leno, seeking to tighten accountability amid a national conversation over police shootings and a push for law enforcement reform in San Francisco, introduced a bill that would roll back a 1978 law and subsequent Supreme Court rulings that prompted cities to close police disciplinary cases to the media and the public.
This is Leno's second attempt to rewrite the law that created an accountability shelter for police officers. It must be said this is a much better idea than the San Francisco PD's response to a recent high-profile shooting: limiting officers to firing two bullets each during interactions with citizens. Despite more public support for greater law enforcement transparency, Leno still faces a tough battle to push this legislation through. As in any other push for police accountability, those pushing back are the usual, powerful suspects.
Harry Stern, an attorney who represents officers around the Bay Area, slammed the proposal, linking it to the San Francisco Board of Supervisors’ recent approval of a day of remembrance for Mario Woods, the stabbing suspect whose video-recorded killing by police sparked protests and a federal review of the city force.
Harry Stern works for the deputies' union and, like many other union reps, feels the real problem with today's policing is everyone else.
“No one is against accountability,” Stern said. “But when politicos press an agenda that includes declaring a day in honor of a violent felon, one must consider their motives with a jaundiced eye. ... In today's criminal-friendly, antipolice climate, we need fewer baseless public floggings of cops, not more.”
Actually, it seems pretty clear that some people are against accountability, with a large majority of them acting as police union reps. No one likes "baseless public floggings," but union leaders have made it abundantly clear they're not too fond of justified floggings either, whether performed in public or not.
Another law enforcement union is also looking to block the bill.
San Francisco Police Officers Association officials will be among those fighting the legislation. Nathan Ballard, an adviser for the union, said that while officers support efforts to bring transparency — including having officers wear body cameras — the union will oppose legislation seeking “to undo the California Supreme Court’s ruling that protects police officers’ privacy interests.”
For public figures who act under the color of law and wield an immense amount of power, police officers (or at least their union reps) seem awfully sensitive about their (mostly-imagined) privacy. The public should have access to police misconduct records, including the names of officers involved. The unions pretend this will lead to "public floggings" by those with ulterior motives, like politicians and the media. But the simple fact is that law enforcement remains a revolving door for bad cops, allowing them to move from one agency to the next with minimal effort. Access to police misconduct records will allow outside parties to keep tabs on job-surfing habitual offenders -- an essential aspect of accountability very few law enforcement agencies seem willing to perform themselves.
The documents confirm longstanding suspicions about the administration's meddling, and lay bare for the first time how it worked to undermine FOIA reform bills that received overwhelming bipartisan support and were unanimously passed by both the House and Senate in 2014 — yet were never put up for a final vote.
Jason Leopold has also obtained some documents of his own. These show the SEC and FTC were also instrumental in preventing the FOIA reform bill from landing on the President's desk.
It's an annual tradition. Legislators will offer up an FOIA reform bill, usually with broad support, and it will end up going nowhere. Too many agencies would prefer to leave the FOIA as it is -- intermittently useful but far too often reliant on lawsuits and endless appeals to wrest documents out of the government's hands. Exemptions are abused and agencies further contribute to the general opacity by ever-so-slowly upgrading their digital document-handling capabilities and outdated (and incomplete) search systems.
As Leopold notes, the 2014 effort to reform the Freedom of Information Act passed out of the House with a 410-0 vote. And then it was left to die as agencies like the DOJ and SEC stepped in to halt forward progress.
The administration released its own talking points in opposition of the reform effort, claiming that any more openness would throw the machinery of government into disarray.
The White House claimed it would increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests, according to a secret six-page DOJ set of talking points turned over to the Freedom of the Press Foundation along with 100 pages of internal DOJ emails about the FOIA bill.
The DOJ pushed back the hardest. And the administration not only allowed it to do this, but actively supported it in its efforts.
Remarkably, the talking points go on to say that the DOJ opposed the administration's own instructions that called on agencies to act with the "presumption of openness" as stipulated in Holder's guidelines and Obama's presidential memo. The DOJ, they said, would "strongly oppose" any attempts to codify it into law.
Despite its opposition to codifying a "presumption of openness," the DOJ considers itself to be the paragon of governmental transparency.
Last year, in testimony before the House Oversight and Government Reform Committee, Melanie Pustay, who heads the DOJ's Office of Information Policy (OIP), which is supposed to ensure that all government agencies adhere to Holder's guidelines, told lawmakers that the DOJ is doing a great job with FOIA. She graded the agency five out five on "presumption of openness."
A completely laughable assertion. At least someone called out the DOJ for this statement.
"Five out of five, on an effective system in place for responding. Proactive disclosure. Are you kidding me?" Committee Chairman Jason Chaffetz asked Pustay. "The Department of Justice gives themselves a five out of five on proactive disclosure. You really think anybody in the world believes the Department of Justice is the most — they're at the top of their game, they got an A-plus, five for five? Do you really believe that?"
No one believes that. Not even the DOJ. The FBI is more secretive than the CIA. And both the DEA and FBI have a long history of refusing to turn over documents to the DOJ's Inspector General, to say nothing about the general public.
Suspicions of administration intervention were raised after then-Speaker of the House John Boehner simply sat on the bill until the last legislative session of the year closed in December 2014. But no one's been able to obtain any solid information to back up theories or confirm the agencies most instrumental in killing the bill. Legislators aren't talking about it. Administration officials won't discuss it. So, the same tool the administration won't fix was used to find out why it won't -- and which agencies fought back the hardest.
The balance of power in the government is such that it only takes a few recalcitrant agencies and a few cooperative legislators to effectively nullify the wishes of senators and representatives who passed the reform bills unanimously. That the administration had their back is no surprise. Despite its bogus claims of "most transparent administration ever," this administration has done more to decrease accountability and transparency than any other administration to date.
from the in-other-words,-the-GDP-of-Switzerland dept
Nothing quite tells the public to mind its own business like attaching a ridiculous fee demand to an FOIA response. It's pretty easy to price the public out of the transparency market, seeing as it doesn't have access to the monetary resources its tax dollars are paying for.
We've covered a few of the more ridiculous FOIA fee demands here at Techdirt, like:
The City of Ferguson charging $135/hour for FOIA response work -- a rate roughly 10 times the hourly wage of entry-level city clerk's office employees.
The City of McKinney telling Gawker emails related to a police misconduct investigation would run 9,000 hours and cost $79,000.
The Florida State's Attorney's Office demanding $180,000 to turn over records on a questionable suicide.
The FBI telling MuckRock that it would cost $270,000 to respond to an FOIA request about Booz Allen -- and that's with an electronic file "discount" of over $6,000 applied.
Mr. Robert R. Jarrett, Director of Operations, Defense Procurement Acquisition Policy, and a FOIA Initial Denial Authority, stated that it is possible that contracts that acquired the requested items are present in the Electronic Documents Access (EDA) system; however, there are more than 30 million contracts in EDA, consisting of more than 45 million documents. No method exists for a complete text search of EDA, as some documents are scans of paper copies. The estimated time required to perform the necessary redactions of proprietary data, assuming 20 minutes per document, is estimated to be 15 million labor hours at an estimated cost of $660 million.
While this amount may be couch change for the DoD (0.1% of its $573 billion budget), it's ridiculously out of reach for any US citizen without billions of dollars to their name. Then there's the question of feasibility. Even if every man, woman and child in America tossed MuckRock a couple of bucks to push this request forward, the estimate of 15 million labor hours suggests the DoD will never fulfill it. If the DoD throws 30 people at the problem 24 hours a day without a day off, Peck still shouldn't expect a response until 2073 at the earliest.
This astronomical estimate says two things about the DoD, though. One, it apparently uses these forensic devices frequently enough that searching for responsive documents will be a massive undertaking. Two, it says the Electronic Document Access system is not nearly as useful as its name would suggest, what with document scans not being searchable. This is a government-wide problem and one that no one's too interested in fixing.
Many FOIA responses contain documents scanned at skewed angles using the worst hard copy available. It happens often enough that it almost appears the government is seeking to maintain a level of obfuscation while still paying lip service to transparency. Sure, a released document is better than no response at all, but the insistence on releasing documents capable of defeating OCR software prevents collation of similar documents and thwarts search efforts for relevant info -- both on the government's end and the public's.
This decision will be appealed and the request narrowed significantly, but I imagine the DoD's database will continue to thwart both its FOIA response team and requesters like Peck, for years to come.