Government transparency laws like the Freedom of Information Act (FOIA) exist to enforce the public's right to inspect records so we can all figure out what the heck is being done in our name and with our tax dollars.
But when a public agency ignores, breaks or twists the law, your recourse varies by jurisdiction. In some states, when an official improperly responds to your public records request, you can appeal to a higher bureaucratic authority or seek help from an ombudsperson. In most states, you can take the dispute to court. In Florida, violating the "Sunshine Law" is actually a criminal offense.
Public shaming and sarcasm, however, are tactics that can be applied anywhere.
The California-based news organization Reveal tweets photos of chickpeas or coffee beans to represent each day a FOIA response is overdue, and asks followers to guess how many there are. The alt weekly DigBoston has sent multiple birthday cakes and edible arrangements to local agencies on the one-year anniversary of delayed public records requests. And here, at the Electronic Frontier Foundation, we give out The Foilies during Sunshine Week, an annual celebration of open-government advocacy.
Now in its fourth year, the Foilies recognizes the worst responses to records requests and the most outrageous efforts to stymie transparency. These tongue-in-cheek pseudo-awards are hand-chosen by EFF's team based on nominations from fellow transparency advocates, participants in #FOIAFriday on Twitter, and, in some cases, our own personal experience.
If you haven't heard of the EFF before, we are a nonprofit based in San Francisco that works on the local, national and global level to defend and advance civil liberties as technology develops. As part of this work, we file scores of public records requests and take agencies like the U.S. Department of Justice, the Department of Homeland Security, and the Los Angeles Police Department to court to liberate information that belongs to the public.
Shining a spotlight is sometimes the best strategy, so we are pleased to announce the 2018 winners of the Foilies.
The Mulligan Award: Pres. Donald J. Trump
Since assuming the presidency, Donald Trump has skipped town more than 55 days to visit his Mar-a-Lago resort in Florida, according to sites like trumpgolfcount.com and NBC. He calls it his "Winter White House," where he wines and dines and openly strategizes how to respond to North Korean ballistic missile tests with the Japanese prime minister for all his paid guests to see and post on Facebook. The fact that Trump's properties have become secondary offices and remain a source of income for his family raises significant questions about transparency, particularly if club membership comes with special access to the president. To hold the administration accountable, Citizens for Responsibility and Ethics in Washington filed a FOIA request for the visitor logs, but received little in response. CREW sued and, after taking another look, the Secret Service provided details about the Japanese leader's entourage. As Politico and others reported, the Secret Service ultimately admitted they're not actually keeping track. The same can't be said about Trump's golf score.
Crime & Punishment Award: Martin County, Florida, Commissioners
Generally the Foilies skew cynical, because in many states, open records laws are toothless and treated as recommendations rather than mandates. One major exception to the rule is Florida, where violations of its "Sunshine Law" can result in criminal prosecution.
That brings us to Martin County Commissioners Ed Fielding and Sarah Heard and former Commissioner Anne Scott, each of whom were booked into jail in November on multiple charges related to violations of the state's public records law. As Jose Lambiet of GossipExtra and the Miami Herald reported, the case emerges from a dispute between the county and a mining company that already resulted in taxpayers footing a $500,000 settlement in a public records lawsuit. Among the allegations, the officials were accused of destroying, delaying and altering records.
The cases are set to go to trial in December 2018.
The Square Footage Award: Jacksonville, Florida, Sheriff's Office
When a government mistake results in a death, it's important for the community to get all the facts. In the case of 63-year-old Blane Land, who was fatally hit by a Jacksonville Sheriff patrol car, those facts include dozens of internal investigations against the officer behind the wheel. The officer, Tim James, has since been arrested on allegations that he beat a handcuffed youth, raising the question of why he was still on duty after the vehicular fatality.
Land's family hired an attorney, and the attorney filed a request for records. Rather than having a complete airing of the cop's alleged misdeeds, the sheriff came back with a demand for $314,687.91 to produce the records, almost all of which was for processing and searching by the internal affairs division. Amid public outcry over the prohibitive fee, the sheriff took to social media to complain about how much work it would take to go through all the records in the 1,600-foot cubic storage room filled with old-school filing cabinets.
The family is not responsible for the sheriff's filing system or its feng shui failings, nor is it the family's fault that the sheriff kept an officer on the force as the complaints – and the accompanying disciplinary records – stacked up.
The Prime Example Award: Midcoast Regional Redevelopment Authority
When Amazon announced last year it was seeking a home for its second headquarters, municipalities around the country rushed to put together proposals to lure the tech giant to their region. Knowing that in Seattle Amazon left a substantial footprint on a community (particularly around housing), transparency organizations like MuckRock and the Lucy Parsons Labs followed up with records requests for these cities' sales pitches.
More than 20 cities, such as Chula Vista, California, and Toledo, Ohio, produced the records – but other agencies, including Orlando, refused to turn over the documents. The excuses varied, but perhaps the worst response came from Maine's Midcoast Regional Redevelopment Authority. The agency did provide the records, but claimed that by opening an email containing 37 pages of documents, MuckRock had automatically agreed to pay an exorbitant $750 in "administrative and legal fees." Remind us to disable one-click ordering.
The Data Disappearance Award: Trump Administration
Last year, we gave the "Make America Opaque Again Award" award to newly inaugurated President Trump for failing to follow tradition and release his tax returns during the campaign. His talent for refusing to make information available to the public has snowballed into an administration that deletes public records from government websites. From the National Park Service's climate action plans for national parks, to the USDA animal welfare datasets, to nonpartisan research on the corporate income tax, the Trump Administration has decided to make facts that don't support its positions disappear. The best example of this vanishing game is the Environmental Protection Agency's removal of the climate change website in April 2017, which only went back online after being scrubbed of climate change references, studies and information to educate the public.
The Danger in the Dark Award: The Army Corps of Engineers
When reporters researching the Dakota Access Pipeline on contested tribal lands asked for the U.S. Army Corps of Engineers' environmental impact statement, they were told nope, you can't have it. Officials cited public safety concerns as reason to deny the request: "The referenced document contains information related to sensitive infrastructure that if misused could endanger peoples' lives and property."
Funny thing is, the Army Corps had already published the same document on its website a year earlier. What changed in that year? Politics. The Standing Rock Sioux, other tribal leaders and "Water Protector" allies had since staged a multi-month peaceful protest and sit-in to halt construction of the pipeline.
The need for public scrutiny of the document became clear in June when a U.S. federal judge found that the environmental impact statement omitted key considerations, such as the impact of an oil spill on the Standing Rock Sioux's hunting and fishing rights as well as the impact on environmental justice.
The Courthouse Bully Award: Every Agency Suing a Requester
As director of the privacy advocacy group We See You Watching Lexington, Michael Maharrey filed a public records request to find out how his city was spending money on surveillance cameras. After the Lexington Police Department denied the request, he appealed to the Kentucky Attorney General's office – and won.
Rather than listen to the state's top law enforcement official, Lexington Police hauled Maharrey into court.
As the Associated Press reported last year, lawsuits like these are reaching epidemic proportions. The Louisiana Department of Education sued a retired educator who was seeking school enrollment data for his blog. Portland Public Schools in Oregon sued a parent who was curious about employees paid while on leave for alleged misconduct. Michigan State University sued ESPN after it requested police reports on football players allegedly involved in a sexual assault. Meanwhile, the University of Kentucky and Western Kentucky University have each sued their own student newspapers whose reporters were investigating sexual misconduct by school staff.
These lawsuits are despicable. In the most charitable interpretation, they expose huge gaps in public records laws that put requesters on the hook for defending lawsuits they never anticipated. At their worst, they are part of a systematic effort to discourage reporters and concerned citizens from even thinking of filing a public records request in the first place.
The Foilies were compiled by Electronic Frontier Foundation senior investigative researcher Dave Maass, staff attorney Aaron Mackey and Frank Stanton Fellow Camille Fischer. Illustrations by EFF art director Hugh D'Andrade. For more on the EFF's work, visit eff.org.