This year's most outrageous government transparency fiascos include a Florida school board threatening a newspaper and more 

The Foilies 2019

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click to enlarge ILLUSTRATION BY HUGH D’ANDRADE
  • Illustration by Hugh D’Andrade

The Corporate Eclipse Award: Google, Amazon, and Facebook

Sunshine laws? Tech giants think they can just blot those out with secretive contracts. But two nonprofit groups – Working Partnerships and the First Amendment Coalition – are fighting this practice in California by suing the city of San Jose over an agreement with Google that prevents city officials from sharing the public impacts of development deals, circumventing the California Public Records Act.

Google's proposed San Jose campus is poised to have a major effect on the city's infrastructure, Bloomberg reported. Yet, according to the organization's lawsuit, records analyzing issues of public importance such as traffic impacts and environmental compliance were among the sorts of discussions Google demanded be made private under their non-disclosure agreements.

And it's not just Google using these tactics. An agreement between Amazon and Virginia includes a provision that the state will give the corporate giant – which is placing a major campus in the state – a heads-up when anyone files a public records request asking for information about them. The Columbia Journalism Review reported Facebook has also used this increasingly common strategy for companies to keep cities quiet and the public in the dark about major construction projects.

The (Harlem) Shaky Grounds for Redaction Award: Federal Communications Commission

After repealing the Open Internet Order and ending net neutrality, Federal Communications Commission Chairman Ajit Pai doubled down on his efforts to ruin online culture. He released a cringe-inducing YouTube video titled "7 Things You Can Still Do on the Internet After Net Neutrality" that featured his own rendition of the infamous "Harlem Shake" meme. (For the uninitiated, the meme is characterized by one person subtly dancing in a room of people to Baauer's track "Harlem Shake." Then the bass drops and the crowd goes nuts, often with many people in costumes.)

Muckrock editor JPat Brown filed a Freedom of Information Act request for emails related to the video, but the FCC rejected the request, claiming the communications were protected "deliberative" records.

Brown appealed the decision, and the FCC responded by releasing all the email headers, while redacting the contents, claiming that anything more would cause "foreseeable harm." Brown did not relent, and a year later the FCC capitulated and released the unredacted emails.

"So, what did these emails contain that was so potentially damaging that it was worth risking a potential FOIA lawsuit over?" Brown writes. "Pai was curious when it was going live, and the FCC wanted to maintain a veto power over the video if they didn't like it." The most ridiculous redaction of all was a tiny black box in an email from the FCC media director. Once removed, all that was revealed was a single word: "OK."

The Unnecessary Box Set Award: Central Intelligence Agency

After suing the CIA to get access to information about Trump's classified briefings, Kel McClanahan of National Security Counselors was expecting the agency to send over eight agreed-upon documents.

What he was not expecting was for the files – each between three and nine pages each – to be spread out across six separate CD-ROMs, each burned within minutes of each other, making for perhaps the most unnecessary box set in the history of the compact disc.

What makes this "extra silly," McClanahan said, is that the CIA has previously complained about how burdensome and costly fulfilling requests can be. Yet the CIA could have easily combined several requests onto the same disc and saved themselves some time and resources. After all, a standard CD-ROM can hold 700 MB, and all of the files took only 304 KB of space.

The Unreliable Narrator Award: President Donald Trump, the U.S. Department of Justice and U.S. District Court Judges

When President Trump tweets attacks about the intelligence community, transparency groups and journalists often file FOIA requests (and subsequently lawsuits) seeking the documents that underpin his claims. The question that often comes up: Do Trump's smartphone rants break the seal of secrecy on confidential programs?

The answer seems to be no. Multiple judges have sided with Justice Department lawyers, concluding that his Twitter disclosures do not mean that the government has to confirm or deny whether records about those activities exist.

In a FOIA case seeking documents that would show whether Trump is under investigation, U.S. District Judge Amy Berman Jackson said that the President's tweets to that effect are "speculation." Similarly, in a FOIA suit to get more information about the widely publicized dossier of potential ties between Trump and Russia, U.S. District Judge Amir Mehta said that the President's statements are political rather than "assertions of pure fact."

And so, whether Trump actually knows what he's talking about remains an open question.

The Cross-Contamination Award: Stanford Law Professor Daniel Ho

One of the benefits of public records laws is they allow almost anyone – regardless of legal acumen – to force government agencies to be more transparent, usually without having to file a lawsuit.

But in Washington State, filing a public records request can put the requester at legal risk of being named in a lawsuit should someone else not want the records to be made public.

This is what happened to Sarah Schacht, a Seattle-based open government advocate and consultant. For years Schacht has used public records to advocate for better food safety rules in King County, an effort that led to the adoption of food safety placards found in restaurants in the region.

After Schacht filed another round of requests with the county health department, she received a legal threat in November 2018 from Stanford Law School professor Daniel Ho's attorney threatening to sue her unless she abandoned her request. Apparently, Ho has been working with the health department to study the new food safety and placard regulations. He had written draft studies that he shared with the health department, making them public records.

Ho's threat amounted to an effort to intimidate Schacht from receiving public records, probably because he had not formally published his studies first. Regardless of motive, the threat was an awful look. But even when faced with the threat, Schacht refused to abandon her request.

Fortunately, the lawsuit never materialized, and Schacht was able to receive the records. Although Ho's threats made him look like a bully, the real bad actor in this scenario is Washington State's public records law. The state's top court has interpreted the law to require parties seeking to stop agencies from releasing records (sometimes called reverse-FOIA suits) to also sue the original requester along with the government agency.

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