DOGE was always designed to provide flimsy pseudo-efficiency cover for wholesale corruption. It was designed to pretend that the government was “cutting waste and fraud” while a bunch of velour tracksuit wearing con men stripped the country for parts and sold what was left off the back loading dock.
As we’ve since explored, DOGE also burned through billions of dollars, exposed the sensitive data of untold Americans, killed untold millions of people worldwide, and generally distracted dim and misinformed Americans from the fact their government is too corrupt to function in the public interest and is no longer capable of consistently standing up to corporate power.
Enter Brendan Carr, who appears to be under fire for the FCC’s efforts to hide his agency’s correspondence with DOGE bros. Last year, journalist Nina Burleigh and advocacy group Frequency Forward sued the FCC, alleging that the agency violated the Freedom of Information Act by wrongfully withholding agency records.
In a new filing (via Ars Technica) in the US District Court for the District of Columbia, Burleigh and Frequency Forward say Carr also hid his use of Signal as a communications tool, which they apparently believe he used to communicate with DOGE:
“The evidence clearly demonstrates that the FCC has acted in bad faith by withholding documents responsive to Plaintiffs’ FOIA [Freedom of Information Act] request. The FCC acted in bad faith when it redefined the search criteria without notice to Plaintiffs or this Court. Further, the FCC acted in bad faith by concealing the fact that the Chairman Carr has a Signal account on a phone he uses to conduct government business.”
While Carr’s obnoxious censorship efforts get all the policy and media attention, he’s also been at work destroying the FCC’s consumer protection authority, eliminating media consolidation limits, and dismantling what little corporate oversight we had left at the agency. This was “cleverly” dubbed Carr’s “delete, delete, delete” agenda. Telecom monopolies and robocallers love the plan.
It’s not clear what a bunch of 20-something Elon Musk cult members could have contributed to Carr’s mindless demolition of public interest governance, but it sure would be nice to take a transparent look, given the vast financial conflicts of interest between Musk’s fake government agency and the multiple Musk-owned companies looking (and getting) giant financial favors from the FCC.
“The evidence strongly suggests that Musk bought his way into the White House and to obtain his position as the de-facto head of DOGE, and that he had used his government authority and access to information to earn huge profits for himself and his companies,” the plaintiffs wrote. “Plaintiffs’ FoIA request seeks documents that shed light on the relationship between the FCC, Musk as regulator and Musk and his companies as regulated entities.”
Meanwhile, I still think it’s embarrassing that the press, and some Dem politicians, initially treated DOGE as if it was a good faith effort they could work with. As opposed to what it clearly was all along: corruption and grift under the flimsy veneer of improved government efficiency.
This story was originally published by the Texas Tribune and the Texas Newsroom and co-published with ProPublica. Republished under the Texas Tribune’s republish feature.
Months after fighting to keep secret the emails exchanged between Texas Gov. Greg Abbott’s office and tech billionaire Elon Musk’s companies, state officials released nearly 1,400 pages to The Texas Newsroom.
The records, however, reveal little about the two men’s relationship or Musk’s influence over state government. In fact, all but about 200 of the pages are entirely blacked out.
Of those that were readable, many were either already public or provided minimal information. They included old incorporation records for Musk’s rocket company SpaceX, a couple of agendas for the governor’s committee on aerospace and aviation, emails regarding a state grant awarded to SpaceX and an application from a then-Musk employee to sit on a state commission.
One is an invitation to happy hour. Another is a reminder of the next SpaceX launch.
The documents were provided in response to a public records request by The Texas Newsroom, which asked Abbott’s office for communications with Musk and the businessman’s employees dating back to last fall. Abbott’s and Musk’s lawyers fought their release, arguing they would reveal trade secrets, potentially “intimate and embarrassing” exchanges or confidential legal and policymaking discussions.
Abbott’s spokesperson, Andrew Mahaleris, said the governor’s office “rigorously complies with the Texas Public Information Act and releases any responsive information that is determined to not be confidential or excepted from disclosure.”
Open government experts say the limited disclosure is emblematic of a larger transparency problem in Texas. They pointed to a 2015 state Supreme Court decision that allowed companies to oppose the release of records by arguing that they contain “competitively sensitive” information. The ruling, experts said, made it harder to obtain records documenting interactions between governments and private companies.
Tom Leatherbury, who directs the First Amendment Clinic at Southern Methodist University’s Dedman School of Law, said companies took advantage of the ruling. Among the most prominent examples of the ruling’s effect on transparency was McAllen’s refusal to disclose how much money was spent to lure pop star Enrique Iglesias to the city for a concert. The city argued that such disclosures would hurt its ability to negotiate with artists for future performances. Eventually, it was revealed that Iglesias was paid nearly half a million dollars.
The problem has been exacerbated, Leatherbury added, by the fact that the Office of the Attorney General, which referees public records disputes, does not have the power to investigate whether the records that companies want to withhold actually contain trade secrets.
“Corporations are willing to assert that information is confidential, commercial information, and more governmental bodies are willing not to second-guess the company’s assertion,” Leatherbury said. (Leatherbury has performed pro bono legal work for The Texas Newsroom.)
Musk and his companies’ representatives did not respond to questions about the records.
As part of an effort to track Musk’s clout in the state Capitol, The Texas Newsroom on April 20 asked Abbott’s office for communications with employees from four of the businessman’s companies: SpaceX, car manufacturer Tesla, the social media site X and Neuralink, which specializes in brain nanotechnology.
The governor’s office said it would cost $244.64 to review the documents, which The Texas Newsroom paid. After the check was cashed, lawyers representing Abbott’s office and SpaceX each sought to keep the records secret.
SpaceX’s lawyer sent a letter to Texas Attorney General Ken Paxton dated June 26, saying that publicly releasing the emails would hurt its competitive advantage.
Abbott’s public information coordinator, Matthew Taylor, also asked Paxton’s office for permission to withhold the documents, arguing they included private exchanges with lawyers, details about policymaking decisions and information that would reveal how the state entices companies to invest here. Taylor said some of the records were protected under an exception to public records laws known as “common-law privacy” because they consisted of “information that is intimate and embarrassing and not of legitimate concern to the public.”
Releasing the Musk emails, he said, would have a “chilling effect on the frank and open discussion necessary for the decision-making process.”
Ultimately, Paxton’s office mostly sided with Abbott and Musk. In a Aug. 11 opinion, Assistant Attorney General Erin Groff wrote that many of the documents could be withheld. Groff, however, ordered the release of some records determined to be “either not highly intimate or embarrassing” or of “legitimate public interest.”
A month later, the governor’s office released 1,374 pages of records, the vast majority of which were completely redacted.
Some records included a note that appeared to explain why. A note on page 401, for example, cited the exemption for competitive bidding records for 974 redacted pages. Names and emails of Musk’s employees were also removed.
“The fact that a governmental body can redact more than 1,000 pages of documents that are directly related to a major business’s activities in Texas is certainly problematic,” said Reid Pillifant, an attorney specializing in public records and media law. (Pillifant has represented a coalition of media outlets, including ProPublica and The Texas Tribune, in lawsuits seeking the release of public information related to the May 2022 mass shooting at an Uvalde elementary school.)
He and other experts said such hurdles are becoming more common as legislation and court decisions have weakened the state’s public records laws.
Four years after the 2015 Supreme Court decision, legislators passed a new law that was meant to ensure the release of basic information about government deals with private businesses. But open government experts said the law did not go far enough to restore transparency, adding that some local governments are still objecting to the release of contract information.
Moreover, lawmakers continue to add carve-outs to what qualifies as public information every legislative session. Just this year, for example, legislators added the following exceptions to public records and open meetings laws: information relating to how government entities detect and deter fraud and discussions during public government meetings about certain military and aerospace issues.
Even with the increasing challenges of accessing public records, Leatherbury and Pillifant were stumped by the governor’s decision to release thousands of pages only to black them out fully. Leatherbury said that the governor’s office may have wanted to show the volume of records responsive to the request.
“They wanted you to see what little you could get in the context of the entire document, even though that’s kind of meaningless,” he said.
The Texas Newsroom has asked the Office of the Attorney General to reconsider its decision and order the release of the Musk emails. There is little other recourse to challenge the outcome.
If a member of the public believes a government agency is violating the law, they can try to sue. But the experts noted that a recent Texas Supreme Court decision made it more difficult to enforce the public records law against the governor and other executive officers. Now, Leatherbury said, it’s not clear how challenging such a records decision would work.
“Every Texas citizen should care about access to these kinds of records because they shed light on how our public officials are making big decisions that affect the land where people live and how their taxpayer dollars are being spent,” Pillifant said.
Lauren McGaughy is a journalist with The Texas Newsroom, a collaboration among NPR and the public radio stations in Texas. She is based at KUT News in Austin. Reach her at lmcgaughy@kut.org. Sign up for KUT newsletters.
The destructive force that is DOGE still somehow manages to exist, despite it not being (depending on which claim is made and when) an official federal agency and/or overseen by anyone specifically identifiable as the head of DOGE.
Until recently, everyone — including Donald Trump — knew (and said as much in public) that DOGE was both a government agency andheaded by Elon Musk. When the lawsuits started flying, the backtracking began by the administration, which apparently thought it could cover its tracks by walking backwards in its golf-cleated clown shows.
Trump’s love for DOGE has managed to undercut the protections DOGE hoped it would be able to avail itself of when the FOIA requests began pouring in and the discovery demands started hitting federal dockets.
The administration is now attempting a Hail Mary play, albeit one that hails Thomas and Alito (and possibly, Roberts), rather than the patron saint it’s named after. Given the makeup of this current court, it probably has a far better chance of success than simply hurling the ball into the air and hoping someone on their own team manages to come down with it. (And, indeed, it has already scored a temporary stay, thanks to an emergency order issued by Chief Justice John Roberts.)
Citizens for Responsibility and Ethics in Washington (CREW) has been suing DOGE ever since it rejected its FOIA requests for the agency’s operational documents. The Trump Administration is now fighting back, albeit with at least one hand inadvertently tied behind its back, as Josh Gerstein and Kyle Cheney report for Politico:
The Justice Department filed an emergency appeal Wednesday urging the high court to put a hold on a judge’s orders giving a watchdog group access to documents detailing firings, grant terminations and other actions proposed by the so-called Department of Government Efficiency, which was overseen by Tesla and SpaceX founder Elon Musk.
Solicitor General John Sauer is also asking the Supreme Court to block a deposition of the obscure official the Trump administration has identified as the leader of the budget-cutting drive: DOGE administrator Amy Gleason.
The crux of the administration’s opacity argument [PDF] is this: DOGE is nothing more than an advisory entity that lacks the power to make independent decisions. Obviously, everything about DOGE says otherwise, as it has propelled massive staffing and funding cuts across multiple agencies, participated in extremely careless (and possibly illegal) data exfiltration, and done pretty much whatever it wants since it materialized as the barely-sentient wet dream of a guy who insists on wearing a baseball cap to every Oval Office meeting.
But that has been undercut by Trump himself, who has stated the agency definitely can do everything the administration is now claiming in court it can’t do, as well as thrown someone under the DOGE bus to act as the recipient for the negative attention (and FOIA requests, and deposition demands) Trump managed to successfully shield his fascist-saluting man-child from since his return to the Oval Office.
This trouble has been brewing for a few months:
U.S. District Judge Christopher Cooper found there were strong indications that DOGE was actually directing cuts and layoffs at numerous federal agencies. That substantive operational role suggests DOGE’s activities fall under the Freedom of Information Act, the judge wrote.
Now that a judge is saying stuff we’ve all been able to clearly observe since DOGE’s inception, the administration now wants the Supreme Court to declare that the public (and multiple litigants) shouldn’t be allowed to believe their own eyes.
Making matters worse for the administration’s anti-transparency efforts is the fact that it has finally decided to put someone’s name on the top of the department’s letterhead: DOGE administrator Amy Gleason. (From what’s known about Gleason, it seems clear she’s being used to catch bullets meant for Trump/Musk, rather than actually direct DOGE operations.)
While this will probably keep Musk and his mouth out of court, it does make it clear that DOGE not only acts on its own impulses (rather than just offer mass termination “guidance”) but that someone will ultimately have to answer questions about DOGE’s actions in court, should discovery requests manage to secure some depositions.
Obviously, the normal court processes and determinations in litigation against DOGE cannot be allowed to stand. That’s why the administration wants the judges it bought to give it a free pass on destroying the federal government while simultaneously preventing the public from learning anything more about the salt-the-earth tactics being spearheaded by DOGE. And it really doesn’t matter whose name is currently at the top of the org chart in terms of destruction. But it does matter when it comes to FOIA litigation and the administration’s insistence DOGE is limited to simply suggesting moves the administration might want to make.
There’s no telling how this desperation move will work out. The Supreme Court has played both sides of the encroaching fascism line in recent weeks, giving Trump some free passes while occasionally shutting down the administration’s efforts to vanish constitutional rights into the anti-immigration cornfield.
Let’s hope this will end up being one of the latter. What’s already known about DOGE and its operations is extremely disturbing. Perhaps the exposure of more internal information will help more people realize the government they chose to elect is actively trying to destroy many of the things they still hold dear and propel some opposition from citizens who never thought they’d be #NeverTrump. We can only hope.
The Intelligence Community just demonstrated, in spectacular fashion, exactly how badly Donald Trump and his ODNI chief Tulsi Gabbard misrepresented the laughable supposed “invasion” of the US by Venezuelan gangs. And they did it by responding to a Freedom of Information Act request in what may be record time — just six business days.
For context: FOIA requests typically languish for months or years. I’ve personally had requests sit for so long that agencies eventually asked if I still wanted the information. Year-long waits are standard operating procedure, despite the law requiring responses within 20 days.
So it’s notable the Office of the Director of National Intelligence somehow responded to a FOIA request from the Freedom of the Press Foundation in record time earlier this week. The request was sent on April 25th, and the response was delivered on May 5th.
The issue: the Intelligence Community’s report on whether or not (in this case, not) the Maduro government in Venezuela was directing Tren de Aragua actions in the US. As you’ll recall, part of Donald Trump’s “invocation” of the Alien Enemies Act, in order to rendition random Venezuelans to a Salvadoran concentration camp, he had to declare that Venezuela had “invaded” the US. This was obvious nonsense, but here’s what he claimed:
TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.
TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.
In order to invoke the Alien Enemies Act, he had to show that a foreign nation had invaded the US. It’s ridiculous on its own to claim that the Venezuelan gang has done much of anything, let alone “invade” the US. Indeed, it’s been shown that the narrative around TdA is mostly a fabrication from NYC Mayor Eric Adams who needed a scapegoat.
But, even if the gang were “invading” (which it is not), that’s still not a foreign nation. So Trump had to claim that Maduro was somehow controlling TdA. Yet, as the Washington Post revealed towards the end of April, there was an assessment by the intelligence community saying that was total bullshit, and there was no clear connection between Maduro and TdA.
This has been obvious all along, and even Trump-appointed judges are calling bullshit on the AEA invocation.
But hearing that the intel community had also rejected this notion was a big deal. Especially since the Director of National Intelligence, Tulsi Gabbard, insisted the exact opposite, as pointed out by Marcy Wheeler. After the initial Washington Post report, Tulsi Gabbard put out a tweet screeching about the “illegal leak” that she claimed was “twisted and manipulated to convey the exact opposite” while simultaneously claiming that the ODNI “fully supports the assessment that the foreign terrorist organization, Tren De Aragua, is acting with the support of the Maduro Regime.”
So, that leads us to the FOIA request from the Freedom of the Press Foundation. The standard would be to slow walk this reply. Such a request would normally take a year or so. And yet this response took… six business days. And revealed that contrary to Trump and Gabbard’s claims, the Intel Community could find no real evidence supporting Maduro controlling TdA.
The Intelligence Community’s assessment demolishes Trump’s invasion claims. The key findings:
While Venezuela creates a “permissive environment” for TdA operations and some low-level officials likely profit from its activities, the Maduro regime “probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.”
The IC’s evidence shows Venezuela actually treats TdA as a threat, with law enforcement actively working against the gang. The report notes TdA’s “decentralized makeup” would make any coordinated relationship with the regime “logistically challenging.”
Most damning: “most of the IC judges that intelligence indicating that regime leaders are directing or enabling TDA migration to the United States is not credible.”
The FBI offers one minor caveat: some Venezuelan officials may help TdA members migrate and use them as proxies to “destabilize governments” in several countries. But even this assessment, based on earlier reporting, falls far short of Trump’s claims of state-directed invasion.
As the NY Times notes, this totally undermines the already flimsy claims that Trump had used to make his proclamation in order to rendition people without due process.
The lightning-fast FOIA response speaks volumes about the Intelligence Community’s stance. It’s almost as if they’re not really thrilled with Gabbard and Trump lying about all this. And, as Wheeler separately notes, this also undermines Gabbard’s separate hysterical claims about the supposed “damage” of these “leaks.”
And at a time when Trump’s Administration is falling further behind on FOIA requests, FOPF got near immediate response for its FOIA showing that even if any material in the NYT and WaPo stories was classified, it has since been publicly released. That kind of response only happens when people within an agency want something to be released. And in this case, it means that Tulsi has not sufficiently commandeered ODNI to prevent FOIA professionals to carry out a classification review and release information publicly.
It likely means that the people who leaked these debunkings in the first place have found a way to undercut claims that they committed a crime by doing so. At the very least that will make it hard for the FBI to argue this leak is of sufficient seriousness to obtain warrants and subpoenas targeting journalists. It may even make it impossible for the FBI to claim a crime was committed in the first place, because the FBI will have to prove that the NYT and WaPo stories relied on more than made it into this memo.
While Gabbard will likely try to prevent such rapid responses in the future, this instance shows that at least some parts of the intelligence apparatus are still capable of using transparency to fight disinformation – even when it comes from their own leadership.
A startling government surveillance program that involved government investigators embedded in AT&T offices was accidentally released in response to an FOIA request (seeking documents about something else entirely) more than a decade ago.
But, since 2013, there’s still plenty that’s unknown about the DEA’s Hemisphere program. What’s known is this: the DEA was able to collect phone records in pretty much real-time, on-demand from AT&T. This went further than even the NSA’s bulk collection of phone records under its Section 215 authority — something that was ultimately shuttered by the agency after it found it impossible to comply with legislated reforms. On top of that, pulling data from landlines was far less useful than it used to be before everyone moved to mobile phones.
The DEA’s program, however, may still be running. If it is, it certainly can’t have improved over the last decade. We do know its problematic and easily abused — something made (almost) clear by a 2019 report by the DOJ Inspector General.
We still don’t have access to a fully un-redacted report. Unbelievably, the Inspector General’s office allowed the DEA to tell it what to redact from its 2019 report, allowing it to control the narrative, at least to a certain extent. Fortunately, some of those redactions have been excised, thanks to FOIA litigation by the Cato Institute.
In apparent response to a successful Cato Institute administrative appeal under the Freedom of Information Act (FOIA), the Department of Justice Inspector General’s (DoJ IG) office released today additional, highly revelatory data on a Drug Enforcement Administration (DEA) mass electronic surveillance program code-named HEMISPHERE.
[…]
Today, that less redacted version of the DoJ IG report was released on the IG’s website, and it provides further disturbing evidence of the symbiotic relationship between federal law enforcement and major telecommunications providers in the employment of warrantlessly obtained commercially collected data for surveillance and investigative purposes.
The full(er) report [PDF] provides a few more details to the Hemisphere picture. What’s known is that AT&T has generated “billions” of call records and provided access to them for more 15 years. Unlike the phone data harvested by the NSA under Section 215, there’s no expiration date on this data and, since it’s technically held by a private company, it’s up to AT&T to decide when (or if) the phone records are purged. Additionally, AT&T provided location data for mobile service users, something the NSA’s bulk collection didn’t contain.
What gets a bit more revealed here is the massive legal gray area that the program operated in. Both the DEA and the FBI requested more legal clarity from the DOJ. The FBI seemed to have genuine concerns about possible illegal misuse of this database. The DEA seemed a bit more interested in just getting a blanket “this all looks legal to us” green light from the office of legal counsel.
Even though the program had been in use since early 2007, it was more than a half-decade later that any sort of legal memo was issued. What arrived was way too little, far too late. Here’s the Inspector General’s take on the so-called legal authority the DEA relied on to exploit this ultra-cozy relationship with AT&T:
We found no evidence of any written legal analysis of the legal issues described above or of any other expected DEA use of Hemisphere in advance of the program. Indeed, it was not until January 2013, more than 5 years after the program began, that the DEA completed a robust written legal assessment, albeit in a draft memorandum that [name redacted] never memorialized into a final product or distributed to users. We believe that several earlier events should have alerted the DEA to the need for a careful legal review.
The 2019 report notes that the program is inactive. But it does state that — due to this lack of legal clarity — there’s nothing preventing the DEA (or FBI) from seeking this sort of arrangement with phone service providers in the future. It recommends the DEA seek a full legal assessment of this program, as well as any others it might be pursuing to replace it and have that in place before it moves forward with similar bulk record access. As Senator Ron Wyden made clear in 2023, the DEA has already moved forward with a program that’s basically Hemisphere 2.0. And, given that the DEA has refused to discuss this newer program with congressional leaders, it’s a safe bet there’s no controlling legal assessment in place to prevent history from repeating.
“I think that the strong bias with respect to government information should be to make it available to the public. Let’s be as transparent as possible. Fully transparent.”
When one of his fanboys tweeted that quote, Elon responded by making an even bigger claim, saying: “There should be no need for FOIA requests. All government data should be default public for maximum transparency.”
As big believers (and users) of the FOIA system, that actually sounded good to us, and I would have supported any actual effort to make more government information and documents public by default.
Right after the inauguration, Lauren Harper at the Freedom of the Press Foundation noted that this was an opportunity for Elon to put “his documents where his mouth is, and make DOGE’s records public.” But, she noted, the early indications didn’t look good, including the fact that one of their first orders of business was to shut down the OMB FOIA portal. It’s still down as I type this.
Of course, if Musk was living up to his words that we wouldn’t even need FOIA because he’d just make everything public, well, that would be one explanation.
But that’s not what is actually happening. Just as when he took over Twitter, we’re learning that Musk’s promises and Musk’s reality are wholly different things. When he promises to make things better for “the people,” he always means “make things better for Elon.”
As you can see, he said those things two days before Elon Musk was elected alongside Donald Trump to (apparently) rip out every bit of accountability from the government of the United States of America. Now that he has near total control over the systems that make the US work, he apparently wants them to be pretty damn secret.
We first heard about this last week when the always excellent 404 Media reported that the DOGE boys were told to stop using Slack, because someone realized the conversations were accessible by FOIA.
Employees working for the agency now known as DOGE have been ordered to stop using Slack while government lawyers attempt to transition the agency to one that is not subject to the Freedom of Information Act, 404 Media has learned.
“Good morning, everyone! As a reminder, please refrain from using Slack at the moment while our various general counsels figure out the best way to handle the records migration to our new EOP [Executive Office of the President] component,” a message seen by 404 Media reads. “Will update as soon as we have more information!”
Sounds like someone’s got something to hide, huh?
Given that not one, not two, but three of the DOGE boys have been outed as having terrible fucking judgment (either blatantly racist tweets or being involved with a fucked up cybercrime group built around Discord and Telegram chat channels) you have to imagine that some shit is going on in those Slack chats.
And thus, it was announced late last week that DOGE has been reorganized outside of OMB (subject to FOIA) and now under the Executive Office of the President, which is subject to the Presidential Records Act instead, allowing such records to be hidden for at least a decade.
The White House has designated Mr. Musk’s office, United States DOGE Service, as an entity insulated from public records requests or most judicial intervention until at least 2034, by declaring the documents it produces and receives presidential records.
And that, of course, is only if the Trump admin abides by the PRA, something he was famous for ignoring in his first administration, including when he took classified documents with him to Mar-A-Lago when he left office.
So, again, what is Elon hiding? After all, when he said everything should be public, he said the only exceptions should be things like “how to make a nuclear bomb.”
Seems like an admission that he’s doing some crazy shit.
Which is actually a problem if he’s claiming to be protected by the Presidential Records Act. After all, the reason there is secrecy like that under the PRA is because it’s supposed to cover advice to the President. The fear was if that advice would become public too quickly, advisors wouldn’t be able to be honest with the President. But the reason most of the rest of the executive branch is subject to FOIA is because they’re actually doing stuff, not just advising. And that information is required, under law, to be public.
I recognize, again, that the Trump administration sees laws only as things they get to use to punish those they hate, rather than anything that binds them, but I’m guessing that lawsuits are about to be filed (if they haven’t been already) challenging this designation.
So, maybe we’ll actually find out what kinds of messages Elon is trading with the guy who calls himself “Big Balls” and the guy who claimed he “was racist before it was cool.”
But only after a court gets involved. So much for “maximum transparency.”
Musk’s version of government efficiency appears to mean efficiently hiding what he and his crew are doing inside our government.
The perennial attempts to widen the reach of copyright in the pursuit of yet more revenue is something that is to be expected from companies. After all, maximizing profits is basically what companies do. But as previous Walled Culture posts have lamented, there is also a widespread tendency among non-profit cultural institutions – museums, art galleries, libraries etc. – to use copyright to generate revenue from images of their holdings, to the detriment of public access. The problem here is that the majority of their collections are unequivocally in the public domain, and yet these cultural institutions are trying to claim that a digital reproduction of those public domain objects is not in the public domain.
A post in February noted that the recent THJ v Sheridan court ruling in the UK effectively prevented these kind of copyright claims being made over faithful reproductions of public domain materials. The post also quoted from an analysis by Douglas McCarthy about the likely impact of that ruling. McCarthy has followed that up with more detailed work looking at the current copyright policies and practices of 16 leading UK cultural institutions. His post reporting on the results bears the ominous title “Anarchy in the UK”. Making requests under the UK’s Freedom of Information Act (FOIA), he asked two questions:
Does your institution claim copyright in digital images of 2D out-of-copyright visual works (such as prints or photographs) in its collections? If so, on what basis in law are such claims made?
Has your institution sought or received any legal advice on copyright in its digital images of out of copyright artworks in the last ten years, and in response to the recent THJ v Sheridan case? If so, will you release that advice?
The responses were quite varied. The most laudable comes from the National Library of Scotland, which replied:
The Library does not claim copyright in digital images of 2D out-of-copyright works in our collections anymore. The Library recognises that there is no legal basis for claiming fresh copyright in digitisations. This means we do not try to enforce control over the re-use of out of copyright materials.
The National Galleries of Scotland (NGS) are pretty good:
NGS does not claim copyright on digital images of artworks that are out of copyright. All images on our website of works that are out of copyright have the caption Creative Commons CC by NC and no additional copyright line.
However, there is an inconsistency here. The NGS does not claim copyright on digital images of works that are out of copyright. That should mean that they are in the public domain. And yet it has adopted the CC-BY license: that’s not public domain, which does not require attribution in this way. The response of the Tate Gallery is confusing:
Tate’s position is that it does not claim copyright, as defined under the Copyright, Designs and Patents Act 1988, in its digital images which solely portray 2D out-of-copyright works in its collection.
But the license on its Web site says:
You may not copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use tate.org.uk content in any way except for your own personal, non-commercial use. In certain prescribed circumstances, you may adapt, alter or create a derivative work from any tate.org.uk content for your own personal, non-commercial use, with the prior written permission of Tate which will be indicated against the relevant tate.org.uk content.
Again, that is not how the public domain works. Moreover, McCarthy’s earlier analysis was about how the Tate Gallery was attempting to use licensing to restrict access to public domain images, so it’s not clear what its current position is.
Some, like the British Library and Wallace Collection, didn’t manage to reply, for whatever reason, which seems pretty feeble. Finally, it’s worth noting the sniffy response of the National Gallery in London:
This is not a question for FOIA; this is asking the Gallery to give an opinion on a position rather than seeking information the Gallery holds.
In its reply the National Gallery went on to say:
We can confirm, however, that following reasonable searches of the relevant business area, no recorded information is held… no recorded information exists which confirms the Gallery’s policy on whether it claims copyright in digital images of 2D out-of-copyright works beyond the information you referenced (information contained on the Gallery’s website).
As McCarthy rightly points out:
The National Gallery’s statement that ‘no recorded information exists’ to support these copyright assertions raises significant questions about how the Gallery manages and records its copyright policy, especially given the definitive language used in its publicly available terms.
The responses to McCarthy’s FOIA requests provide an important snapshot of the copyright chaos that reigns among UK cultural institutions. Only a few of them seem to have a clue, or any sense that they have a responsibility to make cultural artefacts that belong to the public readily available – and without restrictions – to the people who fund them every year through their taxes. It’s a further dismal sign of how a misguided obsession with copyright does not promote the appreciation of creativity, or help others build on it, but actively throws a variety of abstruse legal obstacles in the way.
You would think this is a done deal, but it isn’t. It just keeps getting stupider.
Last year, journalist Ben Camacho filed a public records request for photos of all active Los Angeles PD officers. After a couple of rounds of litigation, the city agreed to release the sought records. Camacho shared these with the Stop LAPD Spying Coalition, which added the photos to its existing searchable database of current LAPD officers.
All (litigation) hell broke loose shortly thereafter. The city sued Camacho, demanding the “return” of the digital files it had given him. LAPD officers sued the city for releasing the photos. The LAPD’s union was also involved in the litigation.
As for Camacho, he’d done nothing wrong. He lawfully acquired the files. And he lawfully shared the files with others. This was confirmed by the settlement paid to Camacho by the city of Los Angeles, which agreed Camacho had obtained these photos legally. And that settlement is part of its defense in the lawsuit filed against by LAPD officers — the admission that a mistake was made by releasing the photos, but it was neither malicious or legally negligent. Furthermore, the city has asserted its own immunity, saying its decision to release this information (whether intentionally or not) is beyond the reach of the officers’ litigation.
Not that it matters to the officers, who still seem to think that if they whine enough, someone will do something about it. Obviously, whatever the result, the publication of the photos has already happened and cannot be undone. So, the officers have decided the best way forward with their litigation is to make a bunch of unverifiable claims about how this publication has endangered them.
Are you guys fans of conclusory statements and vague assertions? Great news! The affidavits being filed by LAPD officers have plenty of both, as the Los Angeles Daily News reports.
“Since the release of my service photo, I avoid public spaces and am very cautious when I am in a public space,” says one such officer identified only as John Doe 137. “I am in constant fear that someone will be able to identify me, follow me home and harm me or my family.”
Doe 138 says he always carries his firearm when he leaves home, even if just to go grocery shopping.
Another officer, John Doe 2, says he was working undercover when at the time of the dissemination of his photo and that his life has changed “forever” as a result.
“Since the release of my personal and private information, I have been forced to alter my social media accounts, change my mailing address and alter my family trust and real estate holdings in order to get back some of the privacy that I have lost,” Doe 2 says.
LOL. What even is this? The first officer seems to believe people are performing searches of the Stop LAPD Spying database and performing citywide searches in person to stalk officers whose photos were made available. Officer Doe 138 is probably just doing what he has always done: going to the grocery store strapped. And the third officer is asserting an extreme overreaction to the publication of a service photo — one that expresses a desire to reclaim “privacy” but says nothing about the presumptive danger of being identified by criminals as an undercover officer.
That’s only part of the stupidity. Another officer claims the release of his photo “affected his mental health” because at some time in the past, he once worked in county jails to elicit confessions from people already imprisoned for other crimes. At no point does this affidavit suggest this is something he is still doing, much less why this release would change anything at all about the danger level since presumably the people he questioned in jail ALREADY KNOW WHAT HE LOOKS LIKE.
It’s all very dramatic and all very useless. As the city has pointed out — something buttressed by its settlement with Ben Camacho — what happened here was unfortunate, but inadvertent. Since it wasn’t deliberate, there’s no cause for action. And even if it was deliberate, the city government’s litigation privilege makes it immune to this lawsuit.
There you have it, aggrieved coppers. Welcome to the reality you rarely have to encounter: the invocation of immunity by someone other than yourselves. Maybe you’ll learn something from the experience. Then again, if regular officers are filing affidavits claiming emotional distress from release of the photos, they’re way off the mark. The only thing the city agrees was “unfortunate but inadvertent” was the release of photos of undercover officers. Any regular officer who performs their duties in public, undisguised, and (most likely) while wearing an LAPD uniform, has zero chance of demonstrating the release of their photo changed the danger matrix of performing their day-to-day job.
Suck it up, self-proclaimed heroes. The affidavits sworn to here only contain fantasies about theoretical danger. If a cop can actually demonstrate a link between the release of these files and any current threats/harassment, they should definitely do so. Given that no one has, this is just a bunch of people whining because one of their extra rights was inadvertently (and momentarily) ignored.
This is one of the stupidest things ever in terms of public records lawsuits. And that’s saying a lot, considering how often this site has covered public records lawsuits.
This traces back to April of last year. Ben Camacho, a Los Angeles journalist who contributes to sites like Knock LA, sent out a records request for photos of all active LAPD officers. After some early litigation (filed by Camacho), the city agreed to turn over the records. The photos then were placed in a searchable database by activist group Stop LAPD Spying Coalition.
That made LA cops very angry. The police chief demanded the city “prosecute” Camacho for legally obtaining records from the city. The LAPD’s union got in on the action as well, suing the city for releasing the photos and demanding Camacho and Stop LAPD Spying “return” the photos Camacho had lawfully obtained.
That didn’t go anywhere, but the city apparently still felt compelled to oblige the LA police union. It filed a cross motion naming Camacho and Stop LAPD Spying as defendants while simultaneously asking the judge to excuse it from the lawsuit, arguing that it had done nothing wrong.
That’s an insane argument to be making when you’re also arguing the people who received the records you released are somehow doing something wrong. And that probably explains why the city is now buying its way out of one of the lawsuits related to these photos it’s currently engaged in, as Libor Jany reports for the LA Times.
The city of Los Angeles has agreed to pay the legal bills for a local journalist and a group of activists whom it took to court last year for publishing photographs of LAPD officers, part of a tentative settlement that will end a lawsuit some saw as an assault on media freedom.
Under the agreement, which still needs to be approved by the City Council, Knock LA journalist Ben Camacho and the group Stop LAPD Spying Coalition will receive $300,000 for lawyer fees. They were sued for publishing thousands of officers’ pictures that the city had itself provided in response to a public records request.
That’s just the proposal. The defendants still need to agree to it and then a judge needs to wave a gavel above it to make it final. As is almost always the case in lawsuit settlements, Camacho and Stop LAPD Spying will have to agree the city did nothing wrong before being allowed to cash the check.
That likely won’t be a problem for the defendants. After all, the city — as it stated in its own cross-motions in the lawsuit filed against it by the police union — stated it had done nothing wrong by complying with the records request. And the recipients of the legally obtained records likely feel the city didn’t break the law here, either. While they may have some hard feelings about the bogus litigation, they’ll be getting paid for having their time, money, and energy wasted.
But it’s not all over yet. As the LA Times article notes, there’s still plenty of litigation that hasn’t been settled or ruled on, including the union’s lawsuit against the city. That’s the one where the city has tried to convert the recipients of the photos into the defendants, despite the fact the union sued the city over the release of the photos and never bothered to name Camacho or Stop LAPD Spying as defendants.
However, that lawsuit really isn’t Camacho or Stop LAPD Spying’s problem at the moment. The bigger problem might be the LA city attorney, Hydee Feldstein Soto. Seemingly distressed by this inadvertent transparency (and the resulting litigation), Soto is seeking to make things worse for California residents.
Feldstein Soto also began lobbying California lawmakers to weaken the state’s public records law to allow government agencies to decline future public records requests that seek “images or data that may personally identify” employees.
Finally, despite all assertions otherwise, the LAPD and the union suing the city have yet to provide any evidence that any officers’ safety has been threatened or otherwise diminished by the release of these photos. The early claims were that undercover officers would be jeopardized by public dissemination of officer photos. But in the year-plus since the data dump, nothing has come to light showing the publication of the photos did any harm to the LAPD or its officers.
Certain government agencies are of the opinion that records requesters shouldn’t even be able to pry the documents they’re seeking from their cold, dead fingers. Long after anyone could be affected and long after the people who’ve created the documents have passed on to the Great Bureaucracy in the Sky, agencies are still refusing to relinquish paperwork that’s long past its (and its creators’) expiration date.
The CIA has been battling a FOIA request in court, using the unlimited amount of time and money it has at its disposal. At the center of the battle is a single memo that was written in 1989, shortly after the fall of the Berlin Wall and the eventual collapse of the USSR. Somehow, this document is too sensitive to be released to the public even though it has already been (mostly) released to the public. (h/t Short Circuit)
Here’s the background on the document, as recounted by the DC Circuit Court of Appeals in its decision [PDF]:
In 1983, during the Cold War, Leonard H. Perroots, then an Assistant Chief of Staff for Intelligence in the United States Air Forces in Europe, allegedly recommended a course of action to his Commander in response to an elevated alert status demonstrated by the military forces of the Union of Soviet Socialist Republics (“Soviet Union”), which helped avert a nuclear crisis. Subsequently, in January 1989, Lieutenant General Perroots wrote an End of Tour Report Addendum (“Perroots Memo”) to detail the “chain of events” from 1983 to help the U.S. Intelligence Community learn lessons “as relates to our [Indications and Warning] capability and exercise planning.”
Thirty-two years later, the National Security Archive (which is not a government entity, despite its pretty official-sounding name) sent the CIA an FOIA request for the Perroots’ 1989 memo. The CIA refused to hand over the memo itself, but gave the National Security Archive the memo’s cover letter, which did not even come close to fulfilling the request, much less the Archive’s desire to obtain the memo. The Archive sued the CIA, leading to this appeal.
But between the creation of the memo (1989) and the Archive’s request and ensuing litigation (2021), the CIA made the Archive aware of the existence of this document by pretty much publishing the memo in full.
In February 2021, the United States Department of State (“DOS”) published a transcribed version of the Perroots Memo in a volume of the Foreign Relations of the United States (“FRUS”) series documenting 1981–1988.
In order to engage in this publication, the State Department needed to get it declassified by the CIA. Those are the rules, and by the “rules,” I mean federal law. The State Department published the transcription, accompanied by a citation to its CIA source, as well as a written “thank you” to CIA staff for assisting in the declassification review.
The obvious point of the Archive’s request was to compare the transcription published by the State Department with the original memo. There may have been zero difference between the two. But we’ll perhaps never know because the CIA (the agency that apparently assisted the State Dept. with a declassification review) claims the document mostly made public more than 32 years after it was written is still far too sensitive to be turned over to the National Security Archive.
You would think the presumption of disclosure, the prior publication of the declassified transcription, and the age of the document itself would weigh in favor of the Archive. But you’d be wrong. Some secrets get to remain secrets forever, even if they’re (1) barely secret, (2) old enough to start worrying about 401(k) contributions, and (3) of significant historical interest.
The lower court took a look at the Archive’s case and the CIA’s counterarguments and decided to give the government the benefit of the doubt. Nothing has improved by moving up the judicial ladder. The CIA will get to keep its secrets even if it’s extremely improbable there’s anything in there of national security value.
While the DC Appeals Court agrees the Archive suffered a “concrete injury” when the CIA refused to release the original memo, it says the transparency-focused entity will just have to walk it off. It says the official acknowledgement of the document doesn’t prevent the CIA from using FOIA exemptions related to executive orders to refuse to release it. Nor does its apparent cooperation with the State Department in the release of the memo transcription change the FOIA equation.
According to its own previous rulings (which have been largely shaped by litigation involving agencies like the CIA due to the DC Circuit being the most common forum for federal entity targeting FOIA lawsuits), the government can both make a document public and refuse to release pretty much the same document when hit with a FOIA request.
As we have emphasized in our precedent, the mere public disclosure of information does not eliminate potential risks posed by further disclosure to national security interests—and cannot overcome an otherwise valid FOIA exemption.
Supposedly, there are still some secrets in this mostly public document. The National Security Archive doesn’t know what those might be. Neither does the general public. We just have to take the court’s word for it, along with the assertions made by the CIA directly to the judge in the lower court, which weren’t even about the presence of any sensitive info:
We reject these contentions because the record, as observed by the district court, contains classified, supplemental, ex parte, and in camera declarations which establish that the CIA was not involved in the disclosure of the Perroots Memo.
That’s it. That’s all the CIA did. It told the lower court it did not actually help the State Department with a declassification review of the Perroots Memo. Because it (allegedly) did not assist in declassification, it could still consider the memo “classified” and avail itself of multiple FOIA exemptions. The fact that the CIA did nothing to prevent the State Department from publishing a transcription of the memo suggests it had nothing it needed to keep the public from seeing. But when asked for the same document, it played hardball and managed to obtain a ruling saying it can continue to blow off future requests for this memo in seeming perpetuity.
This is a ridiculous outcome. The only way this can be overturned is if the National Security Archive can convince the Supreme Court that’s something worth doing. Considering there’s only a single memo at stake here, it seems unlikely to be something the nation’s top court would be interested in resolving. As it stands now, the CIA is free to invoke FOIA exemptions to withhold documents that are not only decades old, but have been released publicly in one form or another previously. That’s a big win for completely pointless opacity, which seems to be the kind of opacity national security related agencies tend to prefer.
