We’ve made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a “FOIA terrorist” by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.
Theresa May, the UK Home Secretary who seems like a comic book version of a government authoritarian, is leading the charge in the UK for its new Snooper’s Charter, officially called the “Investigatory Powers Bill,” that is filled with all kinds of nasty stuff for making it easier for the government to spy on everyone. Among the many problematic elements is the demand for basically everyone’s metadata. May dismissed the concerns about this by saying it’s nothing more than “an itemised phone bill.” Given that, Member of Parliament Keith Vaz noted to May that people might be interested to see May’s itemized phone bill.
Soon after that, we noted that UK resident Chris Gilmour sent in a FOIA request for May’s metadata. Specifically, he asked for the following:
1) The date, time, and recipient of every email sent by the Home Secretary during October 2015.
2) The date, time, and sender of every email received by the Home Secretary during October 2015.
3) The date, time, and recipient of every internet telephony call (e.g. “Skype” call) made by the Home Secretary during October 2015.
4) The date, time, and sender of every internet telephony call (e.g. “Skype” call) received by the Home Secretary during October 2015.
5) The date, time, and domain address of every website visited by the Home Secretary during October 2015.
Not surprisingly, it appears he was not the only one to do so. UK newspaper The Independent sent in a FOIA request asking for:
… the web browser history of all web browsers on the Home Secretary Theresa May’s GSI network account for the week beginning Monday 26 October. Feel free to redact any web addresses relating to security matters.”
There may be other such requests as well — but both of these requests got back the same basic response from the UK government. In both cases, the government rejected the requests, claiming they were “vexatious.” Here’s the response to Gilmour’s:
We have considered your requests and we believe them to be vexatious. Section 14(1) of
the Act provides that the Home Office is not obliged to comply with a request for
information of this nature. We have decided that your request is vexatious because it
places an unreasonable burden on the department, because it has adopted a scattergun
approach and seems solely designed for the purpose of ?fishing? for information without
any idea of what might be revealed.
While the Government is widening its own powers to access the information of citizens, it is watering down the public?s right to access the Government?s information.
Either way, there seems to be a legitimate question to ask Theresa May: if there’s no big deal about having the government go through your metadata and it’s “just like an itemised phone bill,” then why is it so “vexatious” for the public to ask for May’s metadata?
For almost a year now, a Wisconsin district attorney (now the state’s Attorney General) has been trying to keep allegedly embarrassing footage of him from making its way into the hands/eyes of the public. Last October, while running for the State Attorney General’s office, Brad Schimel first went to court to prevent his political opposition from doing this:
Video that purportedly shows the Republican vying to be Wisconsin attorney general making racist and sexist remarks could be released just days before the election…
The Democratic Party of Wisconsin brought the issue to a head with an Oct. 21 petition that says Waukesha County district attorney Brad Schimel made “offensive racial remarks and ethnic slurs, including but not limited to stereotyped accents, as well as sexist remarks” during a Statewide Prosecutors Education conference.
The recordings — taken at a statewide prosecutors conference and apparently containing (in addition to the alleged racist and sexist remarks) “sensitive subject matter” pertaining to the prosecution of child pornography cases — have twice been ordered to be released by judges. And twice the state’s Department of Justice has stepped in on Schimel’s behalf.
“The decision by Attorney General Van Hollen in 2014 to withhold disclosure of these videos was based on sound principles of victim protection and maintaining confidentiality of prosecutorial techniques,” Schimel said in the statement.
Nonetheless, the judge presiding over the case didn’t buy the DOJ’s arguments.
With regard to the 2013 video recording, the circuit court noted the DOJ’s claim that victims would be harmed by disclosure. The circuit court made the following findings of fact about the 2013 video recording. The presentation took place in a large conference room with numerous individuals present. In his presentation, Schimel employed the “case study” method, focusing on a high-profile case from several years before. Largely addressing prosecutors, Schimel shared lessons learned in dealing with victims of sensitive crimes, tips for interacting with victims, and changes Schimel intended to make in his own practices. Schimel commented on the reactions of the victims and their families to the crime, how the defendant first came to the attention of law enforcement, and the role of the courts. While Schimel provided a great deal of detail, he did not share any identifying information about the victims.
The circuit court further found the information in Schimel’s 2013 presentation would be helpful to families trying to protect children from crime and would encourage cooperation in the prosecution of crime. In particular, the court found that the public should hear Schimel’s statements that there were lessons to be learned from the prosecution at issue in the case study. The case study crime was widely reported at the time of the prosecution, the criminal complaint contained virtually everything Schimel mentioned, and Schimel’s presentation did not add anything not already in the public sphere. Furthermore, Schimel did not offer anything novel regarding prosecution techniques or approaches, and the presentation did not impact the ability of prosecutors to prosecute crimes successfully or work with law enforcement or the community. The circuit court concluded that the public’s right to know outweighed the public’s interest in shielding the 2013 video recording from public view.
The same goes for the contested recordings from 2009.
The circuit court next considered the 2009 video recording, reiterated the strong presumption in favor of disclosure, and made the following findings. The court described the video recording as “investigating child predators 101,” a basic and not particularly novel presentation. Schimel discussed various strategies used in investigating and prosecuting sex predators, but most, if not all, of the strategies and techniques were already widely discussed in the public sphere. Noting that law enforcement techniques have evolved significantly since 2009, the court found “not a shred of evidence in this record that releasing that 2009 video is going to impact the ability to prosecute and investigate and” apprehend sex predators. The public had a right to know how to protect children from internet predators and that law enforcement and prosecutors are taking steps to protect children. The public interest in access to the 2009 video recording outweighed the DOJ’s reasons for withholding the recording.
Schimel, through his office, has appealed this decision, asking for an extension of the twice-challenged injunction until the state’s Supreme Court has had a chance to review the case. The motion notes correctly that a released recording cannot be “unreleased” if the Supreme Court later finds in favor of the DOJ. Thus ends the logical arguments. Surrounding that are many statements that use the public’s name in vain while attempting to “save” the public from recordings a court has already determined would benefit the public.
Beginning with the second factor–irreparability–it is clear that the denial of a stay would essentially nullify any further review, even if the supreme court were to accept DOJ’s position. If DOJ were to prevail on appeal, but without a stay, the public will have suffered irreparable injury because the videos will have been released contrary to the public’s interest.
This would seem to conflate Schimel’s interest with the public’s interest. Considering a petition was signed for the release of video (by a partisan group, so there’s that), there would appear to be public interest in the release of these recordings, especially if they contain the racist and sexist remarks the plaintiffs claim they do. (The court’s decision to lift the stay does not address the existence/nonexistence of these comments.)
Schimel/the DOJ’s motion also notes that time is no longer of the essence, considering its previous thwarting of the recordings’ release during the run-up to an election.
The remaining factors ask whether harm will come to the petitioners or the public if a stay is granted. There is no good reason to think that harm to either would occur. These videos relate to law enforcement techniques and otherwise discuss past crime-related events. The petitioners have provided no reason to think that they need them immediately. Rather, the videos were initially sought in anticipation of an election that is now past.
Likewise, there is no time-sensitive information in the videos that the public might need now instead of later. Rather, the public interest is best served by allowing this litigation to reach finality after the supreme court decides whether to accept review. If review is granted, that court will be the ultimate arbiter of what best serves the public, but only if a stay is imposed or continued now.
Once again, the DOJ speaks for the public and declares the release to be against its interests. It also makes lofty statements about how the Supreme Court knows best, something Schimel may regret if the state’s top court finds in favor of the plaintiffs.
One of the documents the city chose to release was the District Attorney’s report on the shooting. This is where the contradictions begin. Obviously, the city thought this would be the last word in the civil suit. Statements from multiple officers all suggest the same thing: the man they intentionally shot (another caught bullet fragments to the spine during the hail of gunfire) made several “threatening” moves that left officers with no other choice but to open fire.
The 14-page report is an echo chamber. Officers, responding to a call about a bike theft, encountered three Hispanic males walking with bicycles. Having reached the unfounded conclusion that these were the suspects, they detained the men. (“Detained” being a fancy word for drew their weapons and shouted a lot.)
The report contains repeated claims by multiple officers that aren’t matched by the events depicted in the video. Officers claim Ricardo Diaz Zeferino “ran towards them” and made “furtive movements” in the general area of his waistband. While the video does show Zeferino having problems keeping his hands above his head, it doesn’t show much in the way of “furtive movements.” It definitely doesn’t show his hand “hovering” over his back pocket.
The document is a fascinating depiction of all the things that could possibly make an officer fearful — an emotion that usually results in “discharged weapons,” to use the deflective parlance of hundreds of officer-involved shooting reports: “furtive movements,” other officers “seeming scared,” right elbow “bowing out,” “losing sight” of a hand, “big swinging motion” of Diaz’s right hand, “manipulating something on the right side of his body,” and so on. How a motion can simultaneously be “furtive” and “big and swinging” is beyond me, but then again, I rarely have to explain why I’ve shot an unarmed person.
Beyond that, there’s additional claims made to buttress the righteous shoot. Diaz had a “maniacal grin.” Diaz’s movements became “faster and more deliberate.” An officer expresses his disbelief that Diaz would ignore an order to keep his hands up, believing such disregard for authority to be indicative of Diaz’s intent to kill. Another officer states he believes Diaz was “testing [the officers’] limits” and “closing the ground” between them.
Considering the official background of the shooting, it’s hardly surprising the city spent several months fighting to keep this video from reaching the public. Now that it has been made public, the police department has gone into damage-control mode. At best, its efforts are inept.
Police have said the shooting was justified and that the dash cam videos from the squad cars don’t tell the whole story. An attorney for the city said this week that one of the videos “looks bad” but that it was not taken from the perspective of officers.
I have no doubt that if the video were more exonerating, the city would have never a) fought the release or b) claimed the video “didn’t tell the whole story.” And the claim that a dashcam video is somehow not a police officer’s “perspective” is completely laughable.
Even more laughable is one of the city’s arguments in favor of keeping the video sealed. It basically told the judge that the high-dollar settlement was offered in part to buy silence and secrecy.
The Court’s rationale for sealing the subject videos was the parties’ stipulated protective order—entered against the backdrop of stalled litigation. However, the parties cannot contractually agree to deprive the public of its strong First Amendment interest in accessing these videos, which were filed in connection with a dispositive motion. Defendants assert that the videos should remain sealed because they agreed to settle the case for $4.7 million—an amount above their liability insurance policy—specifically because they expected the protective order to continue and the videos to remain secret.
The court is unimpressed by the city’s “Hey, we paid good money to make this go away” argument:
However, Defendants’ argument backfires here—the fact that they spent the city’s money, presumably derived from taxes, only strengthens the public’s interest in seeing the videos. Moreover, Defendants cannot assert a valid compelling interest in sealing the videos to cover up any wrongdoing on their part or to shield themselves from embarrassment. The only valid privacy interest in this case belongs to the Plaintiffs, who have made abundantly clear that they wish the videos to be made available to the public.
Moreover, while the videos are potentially upsetting and disturbing because of the events they depict, they are not overly gory or graphic in a way that would make them a vehicle for improper purposes.
Generally such settlements include no admission of guilt by the city—the cops involved usually keep their job, and the settlement money always comes from taxpayers, not from police officers, their unions, or their pension funds. Settlements effectively end discussions on police brutality because many people view them as victories even though they come without admissions of guilt and with the punitive bill being picked up by taxpayers, not cops.
But it didn’t work here. The city paid out and still has to deal with the repercussions of its officers’ actions. It has already filed an appeal with the Ninth Circuit Court. And it has received the most useless of temporary restraining orders in response:
After The Times published the videos online, 9th Circuit Judge Alex Kozinski issued an order that “the police car camera video footage shall remain under seal pending further order of this court.”
And, as long as we’re talking about transparency, let’s discuss the other parties involved in this case. “Interested media organizations” — including the Associated Press, the LA Times and Bloomberg News — all filed motions in support of the video’s release. And while all were more than happy to post the video as soon as it was released, not a single one of them could be bothered to post the court order that gave them access to this footage. Once again, media outlets continue to pretend public court records are somehow proprietary information. Articles quote from the order, but apparently the $1.30 they paid to download it from PACER (if these outlets paid anything at all) entitles them to interpret public documents on our behalf, rather than allow us to read them for ourselves.
The UK’s short-lived, awkward relationship with its Freedom of Information law appears to winding its way towards an acrimonious divorce. Not fully implemented until 2005 and disowned by its co-creator (former PM Tony Blair) in his memoirs only five years later, it has apparently now reached the point of irreconcilable differences: those being the public’s interest in what their representatives are doing and their representatives’ extreme disinterest in sharing their feelings emails and documents.
Michael Gove, the justice secretary, is considering making it more difficult to procure information from government bodies, including allowing officials to count “thinking time” when calculating how much it costs to retrieve information. One plan is to make it easier for ministers to veto publication of certain documents… Another is to change the way the cost of finding information is calculated so that officials can more readily turn down requests.
The first aspect would hand final veto power over to acting prime ministers. This is viewed by Gove and others as “needed” because the government was unable to prevent Prince Charles’ correspondence from being released to The Guardian. As is almost always the case with contested open records requests, some embarrassment resulted from the publication of the released documents — which showed that member of royalty pushing his personal perspective on issues like defense spending… or homeopathy… on a variety of legislators.
The second aspect is more related to Michael Gove’s own FOI problems. Gove has previously been investigated for using personal email accounts to conduct official business. The 90-day automatic email destruction policy the UK government instituted is somewhat helpful in keeping the public uninformed, but what if someone wants to retain these official records longer for personal reasons, but doesn’t feel particularly compelled to share them with FOI requesters? Well, that’s where the discussion of fees comes into play.
Currently, citizens can request anything as long as the costs incurred by government bodies doesn’t exceed £600. Considering many files are stored electronically, can be easily searched and resulting documents sent electronically, costs of fulfilling requests continue to decrease. So, Gove and others are suggesting a couple of changes: lowering the £600 cutoff point and/or padding invoices. The latter would see such intangibles as “considering” potential document releases billed at an hourly rate. Redaction efforts would also be billed.
If these changes are put into effect, FOI releases will slow to a trickle and some requests will meet with an almost un-challengable refusal, thanks to executive veto power. David Cameron promised a “complete revolution in transparency” during his term. Depending on your opinion of Cameron, this is either the antithesis of his goal, or exactly what he had in mind.
Loads of politicians continue to skirt the requirements of open records laws by using personal email accounts to handle official business. Others simply implement voluntary/poorly defined data retention policies that ensure nothing of interest will be handed over to the public. Given a short enough retention period, any request can be stonewalled until the autodestruct has rendered responsive files unavailable.
This is what the UK government is doing. Tony Blair, the prime minister behind the implementation of the UK’s Freedom of Information laws, has publicly lamented ever inviting the public into the conversation. It now appears they’ll still be mostly excluded from any email correspondence. (via slashdot)
Weeks before Tony Blair’s Freedom of Information (FOI) act first came into force, Downing Street adopted a policy of automatically deleting emails more than three months old, resulting in a system described by those who worked under it as ‘dysfunctional’. Campaigners have described the timing of the IT policy as ‘not a coincidence’.
One former permanent secretary told the newspaper that he thought there were problems with his BlackBerry when he noticed his emails kept disappearing.
The public might call this system opacity at its finest. But it’s apparently not all that popular with those on the inside, either. It’s one thing to be on the outside and attempting to peer in with a stack of FOI requests. It’s quite another when government employees often experience email-induced early-onset dementia. The “90 Days or it’s Deleted!” policy has been referred to as “extremely frustrating,” especially when no one’s able to verify what was agreed upon in meetings held only three months ago.
On top of 10 Downing Street’s disappearing act, there’s a concerted effort by other staffers and lawmakers to keep emails out of the public’s hands. Some delete theirs almost immediately after reading. Others avoid discussing anything “interesting” in official emails.
The problem obviously traces back to Blair’s hesitant implementation of the law. A promise of new openness was immediately undercut by a deliberate email retention policy change. When the leadership openly regrets and resents new avenues of accountability, the rank-and-file will only be more than happy to follow. In his memoirs, Blair called the FOI law a “weapon” in the hands of “journalists,” showing just how deep-seated the government’s disdain for openness actually is.
There’s not a government on the planet that welcomes the scrutiny of the public. Fortunately, some legislators have recognized this as an unhealthy attitude. The battle over the freedom of information didn’t end with FOI laws. It was only the beginning. The UK government — like ours — still has plenty of “weapons” of its own to deploy in the interest of opacity. Destruction of “retention” policies, easily-abused exemptions, stonewalling, disingenuous search efforts, exorbitant fulfillment fees — all of these are the tools the government uses to remain in its natural vampiric state of living off the income of others while recoiling from the sunlight.
The UK’s Freedom of Information law was a long time coming. In contrast to the United States government, which (begrudgingly) (and only sort of) threw open its filing cabinets for its citizens’ perusal in 1966, the UK’s version didn’t go live until 2005, after nine years of legislative maneuvering. Tony Blair, who started the push as an opposition leader, was already expressing his regrets five years later.
“Freedom of information,” he wrote in his 2010 memoir, “A Journey.”“Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naïve, foolish, irresponsible nincompoop.”
And why wouldn’t he? It’s a wonderful tool of transparency and accountability. But it’s also this:
The requests come in to local councils with appalling regularity: “How many residents in Sutton own an ostrich?” “What procedures are in place for a zombie invasion of Cumbria?” “How many people have been banned from Birmingham Library because they smell?”
In Wigan, the council was asked what plans were in place to protect the town from a dragon attack, while Worthing Borough Council had to outline its preparations for an asteroid crash.
That’s the unavoidable side effect of allowing the public to request information from their government. These requests are referred to as “vexatious” and a waste of government funds. But the alternative is to “go dark.” There’s no middle ground that won’t ultimately be misused by government agencies to withhold more information than they already do. And judging from what’s been uncovered so far thanks to the UK’s FOI law, there’s nothing many government entities would like more than additional exceptions and exemptions.
A slew of political scandals have come to light under the act. It was Ms. Brooke’s F.O.I. request that ultimately led to the parliamentary expenses scandal in 2009, resulting in the imprisonment of five Labour members of Parliament and two Conservative peers.
More recently, Jeremy Hunt, the current health secretary who formerly was culture secretary, was embroiled in controversy after F.O.I. requests revealed his close relationship with Rupert Murdoch’s media empire during News Corp’s approximately $12 billion bid for the broadcaster BSkyB. And Eric Pickles, the minister for communities and local government, landed in hot water for spending about $110,000 on tea and biscuits in a single year.
Smaller government bodies are the ones doing the most complaining about the costs of responding to FOI requests. The complaint is partially legitimate. Less funding means stretching tax dollars further. But it also leads to some disingenuous proclamations.
At Buckinghamshire County Council, workers last year spent 11,276 hours handling more than 1,700 requests, costing the taxpayers more than $400,000. The leader of the council, Martin Tett, complained of the cost in “times of austerity.”
“This is money we could be spending on other vital services, like children’s services or care for the elderly,” he said.
There’s a solution to that problem, and it doesn’t involve a return to greater secrecy. It’s a national law, and funding to cover requests should be made available by the UK government itself if smaller locales find themselves cutting children’s services to handle FOI requests. Sure, there’s not an infinite amount of funds available, but what’s being spent on handling FOI requests is basically a rounding error.
Between October 2013 and September 2014, central government departments received 48,727 requests, which would put the approximate annual cost of freedom of information at over $20 million.
Still, as advocates point out, that represents about 0.0019 percent of the budget — and $20 million is less than what the British taxpayer has paid for the travel expenses of Prince Andrew, the Duke of York.
While ostriches, asteroids and dragons may be “wasting” local funds, the amount spent handling requests is almost nonexistent. Local governments should be petitioning the national government for FOI funding assistance, not claiming that increased transparency is robbing the elderly of proper care or taking food out of children’s mouths. It’s “think of the children,” slightly rephrased. Whenever funds run low, government agencies never take a look at the $110,0000 spent on tea and biscuits. They’d much rather generate outrage and sympathy by pointing the fiscal gun at the heads of retirees and schoolchildren.
Considering the amount of fiscal impropriety FOI requests uncover (despite the best efforts of government agencies to thwart them), it can easily be argued that this transparency pays for itself — especially when it only has to cover .002% of the national budget to break even.
Freedom of information requests have become one of the most useful weapons in the armory of those seeking to bring more transparency and oversight to governments. Indeed, so powerful are they that the person responsible for introducing them in the UK, Tony Blair, later came to regret doing so:
“You idiot. You naive, foolish, irresponsible nincompoop,” Blair wrote of himself in his autobiography “A Journey” last year, recalling his adoption of the law, which took effect in 2005. “There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”
A recent decision in France expands the power of the freedom of information law there in a rather interesting way. The case concerns a request to the Commission for Access to Administrative Documents (CADA, in French), an independent administrative authority responsible for ensuring the freedom of access to administrative documents. Here’s what happened, as reported by the French free software organization April:
At the end of November 2014, the CADA received a request by Mr X, who asked the Public Finance Department (Direction Générale des Finances Publiques — DGFiP) to send him the source code of the software for simulating personal income tax, in order to use it for academic research. At its board of 8 January 2015, the CADA issued its opinion, which was “favourable to communicating the requested source code to Mister X, in the format under which the government services store it. The requestor is free to reuse it according to Section 12 of the Act of 17 July 1978, barring any intellectual property rights held by third parties to the government services, which wouldn’t have been mentioned by the Director General for Finances”.
That broadens the application of access to government documents to include government software — presumably on the basis that its source code is indeed a kind of document. It will be interesting to see whether similar requests will be granted by other government departments in France, and if other countries could be persuaded to adopt the same view.
Frankly, it was only a matter a time before this came to be. Two years or so ago, Mike wrote a piece about a Supreme Court ruling that gave the go-ahead to the state of Virginia to discriminate in its response to FOIA requests based on state residency. The state law that allowed Virginia to flatly refuse to comply with transparency requests from non-state residents was curious as a matter of good governance and was heralded by some, including Mike, as being a potential roadblock to national media, especially new media, to reporting on the goings on in the many states of our blessed union. The internet and new media, as perhaps should have been obvious, have their ways of routing around all this silliness.
Here to show how it’s done is Deadspin, who filed an FOIA request in Tennessee, which has similar discriminatory FOIA policies, for emails between the University of Tennessee and Nike. This all stemmed from a rather banal situation going on at the school in which most of the women’s teams are being rebranded from “Lady Vols” to simply “Volunteers” like the men’s teams. This change in branding curiously came at the same time the school dropped its partnership with Adidas and switched to Nike, so Deadspin wanted to find out if there was some kind of influence being wielded by Nike over female athletic programs at a public university. So they filed for the FOIA request.
It was soon followed by a rejection letter … because I’m not a Tennessee resident. As it stands, Tennessee’s state laws only give the right to review records to “any citizen of this state.” I am not a citizen of the state, and therefore they can tell me (and whoever else doesn’t live in Tennessee, which includes everyone who works at Deadspin) to bugger off. Is this legal? Apparently so.
There’s only one word for describing this way of thinking: garbage. Why don’t they just put a sign at the Tennessee border saying, “Nothing to see here, please turn around”? Or just change the name of the Tennessee Open Records Act to the Tennessee Kinda-Sorta-Maybe-If-We-Like-You Records Act? Of just amend the text of the law to read, “Nah, fuck you”? Functionally, this just seems like a fantastic tool for ensuring national media can only give you glowing coverage—any documented verification is impossible, unless they want to give it to you.
That sentiment of frustration has been shared by numerous national blogs and media, including this one, if mildly so, several years back. It’s a sense of the game being over if you don’t happen to be a resident of the state in question. This, as it should be obvious, violates the spirit of the FOIA as a general tool for transparency, but what can you do? The Supreme Court ruled form on high, right?
Of course not. If new media should be linked to citizen journalism and blogs in particular embrace their readerships and communities as information sources, this is a non-problem. Deadspin sees it similarly in a post entitled “Tennessee Won’t Give Us Nike’s Emails; Maybe They’ll Give Them To You.”
But, hey, we’ve got readers everywhere, right? So I’m asking all of you, residents of Tennessee, to submit a public records request for me, if you don’t mind. I’m putting a copy of my entire public records request below. Or, hey, come up with your own version if you’ve got a better idea for one. If you hear back from Tennessee, please let me know: diana@deadspin.com.
It’s a wondeful tactic, and one completely in line with the idea of new media and citizen journalism, not to mention community participation amongst the readership. Too bad the University of Tennessee is apparently looking to play extremely dumb with the crowdsourced requests.
Everybody got the exact same answer: a copy of the Nike branding audit and nothing else. Not a single email. Not one text message. Not even a lonely memo, draft, or letter… a return that ignores what we asked for and goes against what logic suggests is the mountain of paperwork generated when a billion-dollar university system interacts with a billion-dollar company. There are only two ways this is possible:
1. Nike intentionally conducted all business with Tennessee only over the phone or in person, specifically to keep everything out of the public record.
2. The University of Tennessee is telling us to go fuck ourselves.
The wonderful part about the school attempting to route around these valid requests this way is that even by winning, the university still loses. Now there’s zero doubt something shady is going on here. Either the school is refusing to comply with an FOIA request, or it is hiding its dealings in places it thinks the light of day will never shine. Either way, interest is only piqued further, rather than being sated.
We’ve written many stories about ridiculous responses to FOIA (Freedom of Information Act) requests (as well as similar state and local law requests) over the years. I’ve personally filed a few FOIA requests over the years and have never seen one sufficiently answered in the time limit required by the law. These days, it’s becoming all too common for people to have to go to court to actually get such public records requests answered. Of course, filing a lawsuit is not easy or cheap, and unless you’re the ACLU, EFF or Jason Leopold (the so-called “FOIA terrorist”), not many people actually go that far. And that’s what the various government agencies depend on. I currently have two outstanding FOIA requests — one involving Homeland Security which has simply stopped responding to repeated requests for an update (after nearly a year) and a second one involving a state government agency that is demanding thousands of dollars for a very simple request. I imagine I’ll have more to say on both of those eventually.
In the meantime, the EFF has decided to do something beyond just suing: naming and shaming the most egregious violators (and celebrating those who filed the requests). EFF has announced its “Foilies” awards for “the most outrageous responses to Freedom of Information Act and state open records act requests.” Anyone is free to nominate examples, even if you weren’t the one who made the request. You just need to be able to point to the details of the request (whether the specific responses and/or news stories about them):
You should feel free to name your own Foilies categories. For example, if the Department of Defense claimed a national security exemption in response to your FOIA request for lunch menus, you might suggest a category for ?America?s Most Dangerous Cafeteria.? But we also have several categories already in mind, such as:
Absurdly Over-Redacted Documents
Egregious Copying Fees
Extraordinarily Long Wait for Records
Silly Legal Arguments in Public Records Lawsuits
Wrongest-Headed Anti-transparency Legislation
Gratuitous Glomars
The details for how to nominate are pretty simple:
How to Submit a Nomination: Send nominations to foilies@eff.org with ?FOILIES 2015 NOMINATION? in the subject line. You can nominate multiple entries in a single email, just make sure to enumerate the nominations so we can easily separate them.
Format: Each nomination should look like this:
Category: One line category title
Description: No more than 200 words succinctly explaining the public records issue and why it deserves a Foilie. Please include this in the body of the email. (We?ll use this to winnow down the nominations and may cite the text during Sunshine Week.)
Links: Include any links to stories, records, or other information that will help us better understand the issue if we decide to read beyond the 200-word description.
Attachments: If you have the original FOIA/public records request and subsequent correspondence to support the nomination, please include it with the email (within reason: if it?s larger than 10mb, just include the most important parts). We may seek this information out separately later.
Attribution: Let us know if we can attribute the nomination (including the description text) to you and, if so, how you would like to be named (name, Twitter handle, etc.).
Contact details: Include a way for us to reach you with further questions. This information will remain confidential.
Help further the cause of transparent and accountable government by contributing to this effort and demonstrating the ridiculous contortions the government goes through in trying to block such efforts.
