The day after the 2021 inauguration, Sen. Chris Murphy of Connecticut took to Twitter to declare: "Biden is making transparency cool again."
This was a head-scratcher for many journalists and transparency advocates. Freedom of Information — the concept that government documents belong to and must be accessible to the people — has never not been cool. Using federal and local public records laws, a single individual can uncover everything from war crimes to health code violations at the local taqueria. How awesome is that? If you need more proof: There was an Australian comic book series called Southern Squadron: Freedom of Information Act; the classic anime Evangelion has a Freedom of Information Act cameo; and the Leeds-based post-punk band Mush received 7.4 stars from Pitchfork for its latest album, Lines Redacted.
OK, now that we've put that down in writing we realize that the line between "cool" and "nerdy" might be a little blurry. But you know what definitely is not cool? Denying the public's right to know. In fact, it suuucks.
Since 2015, the Foilies have served as an annual opportunity to name-and-shame the uncoolest government agencies and officials who have stood in the way of public access. We collect the most outrageous and ridiculous stories from around the country from journalists, activists, academics and everyday folk who have filed public records requests and experienced retaliation, over-redactions, exorbitant fees and other transparency malpractice. We publish this rogues gallery as a faux awards program during Sunshine Week (March 14-20, 2021), the annual celebration of open government organized by the News Leaders Association.
This year, the Electronic Frontier Foundation is publishing the Foilies in partnership with MuckRock News, a nonprofit dedicated to building a community of cool kids that file Freedom of Information Act (FOIA) and local public records requests. For previous years' dubious winners (many of whom are repeat offenders) check out our archive at eff.org/issues/foilies.
And without further ado...
The Most Secretive Dog's Bollocks: Conan the Belgian Malinois
Back in 2019, what should've been a fluff story (or scruff story) about Conan, the Delta Force K9 that was injured while assisting in the raid that took out an Islamic State leader, became yet another instance of the Trump administration tripping over itself with the facts. Was Conan a very good boy or a very good girl? Various White House and federal officials contradicted themselves, and the mystery remained.
Transparency advocate and journalist Freddy Martinez wouldn't let the sleeping dog lie; he filed a FOIA request with the U.S. Special Operations Command, aka SOCOM. But rather than release the records, officials claimed they could "neither confirm nor deny the existence or nonexistence of records," the much dreaded "Glomar response" usually reserved for sensitive national security secrets (the USNS Hughes Glomar Explorer was a secret CIA ship that the agency didn't want to acknowledge existed). Never one to roll over, Martinez filed a lawsuit against SOCOM and the Defense Department in June 2020.
Just in time for Sunshine Week, Martinez got his records — a single page of a veterinary examination, almost completely redacted except for the dog's name and the single letter "M" for gender. Conan's breed and color were even blacked out, despite the fact that photos of the dog had already been tweeted by Trump.
The Doxxer Prize: Forensic Examiner Colin Fagan
In July 2020, surveillance researcher and Princeton Ph.D. student Shreyas Gandlur sued the Chicago Police Department to get copies of an electronic guide on police technology regularly received via email by law enforcement officers around the country. The author of the guide, Colin Fagan, a retired cop from Oregon, did not agree that the public has a right to know how cops are being trained, and he decided to make it personal. In a final message to his subscribers announcing he was discontinuing the "Law Enforcement Technology Investigations Resource Guide," Fagan ranted about Gandlur for "attacking the best efforts of Federal, state and local law enforcement to use effective legal processes to save innocent victims of horrible crimes and hold their perpetrators accountable."
Fagan included a photo of Gandlur and his email addresses, and urged his readers to recruit crime victims to contact him "and let him know how he could better apply his talents" — one of the most blatant cases of retaliation we've seen in the history of the Foilies. Fagan has since rebounded, turning his email newsletter into a "law enforcement restricted site."
The Redaction Most Likely to Make Your Bubbe Weep: Federal Aviation Administration
When General Atomics proposed flying a new class of drone over the San Diego region to demonstrate its domestic surveillance capabilities, Voice of San Diego reporter Jesse Marx obviously wanted to learn how it possibly could have been approved. So he filed a FOIA request with the Federal Aviation Administration, and ultimately a lawsuit to liberate documentation. Among the records he received was an email containing a "little vent" from an FAA worker that began with "Oy vey" and then virtually everything else, including the employee's four bullet-pointed "genuinely constructive thoughts," was redacted.
The Government Retribution Award: City of Portland, Oregon
People seeking public records all too often have to sue the government to get a response to their records requests. But in an unusual turn-around, when attorney and activist Alan Kessler requested records from the City of Portland related to text messages on government phones, the government retaliated by suing him and demanding that he turn over copies of his own phone messages. Among other things, the city specifically demanded that Kessler hand over all Signal, WhatsApp, email and text messages having to do with Portland police violence, the Portland police in general and the Portland protests.
Runner-up: Reporter CJ Ciaramella requested records from the Washington State Department of Corrections about Michael Forest Reinoehl, who was killed by a joint U.S. Marshals task force. The Washington DOC apparently planned to produce the records — but before it could, the Thurston County Sheriff's Department sued Ciaramella and the agency to stop the records from being disclosed. [continued on page 16]
The Most Expensive Cover-up Award: Small Business Administration
In the early weeks of the pandemic, the Small Business Administration awarded millions of dollars to small businesses through new COVID-related relief programs — but didn't make the names of recipients public. When major news organizations including ProPublica, the Washington Post and the New York Times filed public records requests to learn exactly where that money had gone, the SBA dragged its feet, and then — after the news organizations sued — tried to withhold the information under FOIA Exemptions 4 and 6, for confidential and private information. A court rejected both claims, and also forced the government to cough up more than $120,000 in fees to the news organizations' lawyers.
The Secret COVID Statistics Award: North Carolina Department of Health and Human Services
Seeking a better understanding of the toll of COVID-19 in the early days of the pandemic, journalists in North Carolina requested copies of death certificates from local county health departments. Within days, officials from the state Department of Health and Human Services reached out to county offices with guidance not to provide the requested records — without citing any legal justification whatsoever. DHHS did not respond to reporters' questions about why it issued that guidance or how it was justified.
Some local agencies followed the guidance and withheld records, some responded speedily and some turned them over begrudgingly — emphasis on the grudge.
"I will be making everyone in Iredell County aware through various means available; that you are wanting all these death records with their loved ones private information!" one county official wrote to News and Observer Review reporters in an email. "As an elected official, it is relevant the public be aware of how you are trying to bully the county into just giving you info from private citizens because you think you deserve it."
The It's So Secret, Even the Bullet Points Are Classified Award: Minnesota Fusion Center
Law enforcement and intelligence agencies are always overzealous in claims that disclosing information will harm national security. But officials with the Minnesota Fusion Center took this paranoia to new heights when they claimed a state law protecting "security information" required them to redact everything — including bullet points — in documents they provided to journalist Ken Klippenstein. And we quite literally mean the bullets themselves.
Fusion centers are part of a controversial program coordinated by the U.S. Department of Homeland Security to facilitate the flow of homeland security intelligence among agencies. Each fusion center is maintained by a state or regional agency; in this case, the Minnesota Bureau of Criminal Apprehension. Klippenstein tweeted that the agency wouldn't provide document titles or any other information, all the while adding the dreaded black redaction bars to bulleted lists throughout the records. But if officials redacted the bullet points in earnest, we wonder: What is the security risk if the public learns whether Minnesota homeland security officials use the default bullet points or some more exotic style or font? Will the terrorists win if we know they used Wingdings?
The Cat Face Filter Award: Federal Bureau of Prisons
Kids these days — overlaying cat faces on their videos and showing the BOP how it should redact media sought by FOIA requesters. That was the message from an incredulous federal appeals court in March 2020 after the BOP claimed it lacked the ability to blur out or otherwise redact faces (such as those of prisoners and guards) from surveillance videos sought through FOIA by an inmate who was stabbed with a screwdriver in a prison dining hall.
The court wrote: "The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans." The judge made clear that although "we do not necessarily advocate that specific technique," the BOP's learned helplessness with regard to redacting video footage is completely [laughing cat face emoji].
The Juking the FOIA Stats Award: Centers for Disease Control
The Wire, the classic HBO police drama, laid bare how police departments across the country manipulate data to present trends about crime being down. As ex-detective Roland Pryzbylewski put it: "Juking the stats ... Making robberies into larcenies. Making rapes disappear. You juke the stats, and majors become colonels."
The Centers for Disease Control seems to love to juke its FOIA stats. As the nonprofit advocacy organization American Oversight alleged in a lawsuit last year, the CDC has been systematically rejecting FOIA requests by claiming they are overly broad or burdensome, despite years of court decisions requiring agencies to work in good faith with requesters to try to help them find records or narrow their request. The CDC then categorizes those supposedly overbroad requests as "withdrawn" by the requester and closes the file without having to provide any records. So those FOIAs disappear.
The CDC's annual FOIA reports show that the agency's two-step juke move is a favorite. According to American Oversight, between 2016 and 2019, CDC closed between 21 to 31 percent of all FOIA requests it received as "withdrawn." CDC's closure rate during that period was roughly three times that of its parent agency, the Department of Health and Human Services, which on average only closed 6 to 10 percent of its FOIAs as withdrawn. After American Oversight sued, the CDC began releasing documents.
The Save the Children (in a Hidden Folder) Award: Louisville Metropolitan Police Department, Kentucky
The Louisville Metropolitan Police Department's Explorer Scouts program was supposed to give teenagers a chance to learn more about careers in law enforcement. For two LMPD officers, though, it became an opportunity for sexual abuse. When reporters asked for more information on the perpetrators, the city chose to respond with further absurdity — by destroying its records. The case against the city and the Boy Scouts of America is scheduled to begin in April.
The Courier-Journal in Louisville first asked LMPD in mid-2019 for all records regarding the two officers' sexual abuse of minors. Louisville claimed it didn't have any; they had been turned over to the FBI. Then the Courier-Journal appealed, and the city eventually determined that — well, what do you know — they'd found a "hidden folder" still containing the responsive records — 738,000 of them, actually. Not for long, though. Less than a month later, they'd all been deleted, despite the ongoing request, a casualty of the city's automated backup and deletion system, according to Louisville.
At the end of 2020, the Courier-Journal was still fighting the city's failure to comply with the Kentucky Open Records Act.
"I have practiced open records law since the law was enacted 45 years ago, and I have never seen anything so brazen," said Courier-Journal attorney Jon Fleischaker told the paper. "I think it an outrage."
