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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ILLUSTRATION BY HUGH D’ANDRADE
  • Illustration by Hugh D’Andrade

The Outrageous Fee Request of the Year: City of Seattle

When self-described transparency advocate and civic hacker Matt Chapman sent his request to Seattle seeking the email metadata from all city email addresses (from/to/BCC addresses, time, date, etc.), he expected some pushback, because it does sound like an incredible amount of data to wrangle.

Seattle's response: All the data can be yours for a measly $33 million. Officials estimated that it would take 320 years worth of staff time to review the roughly 32 million emails responsive to Chapman's request. Oh, and they estimated charging an additional $21,600 for storage costs associated with the records. The fee request is the second highest in the history of The Foilies (the Department of Defense won in 2016 for estimating it would take $660 million to produce records on a particular computer forensic tool).

Then the city did something entirely unexpected: It revisited the fee estimate and determined that the first batch of records would cost only $1.25 to process. We get it, math is hard.

But wait – that's not all. After paying for the batches of records with a series of $1.25 checks, Chapman received more than he ever bargained for. Rather than disclosing just the metadata for all 32 million emails, Seattle had given him the first 256 characters of every email. Those snippets included passwords, credit card numbers, and other personally identifying information.

What followed was a series of conversations between Chapman, Seattle's lawyers, and the city's IT folks to ensure he'd deleted the records and that the city hadn't just breached its own data via a public records request.

Ultimately, Seattle officials in January 2018 began sending the data to Chapman once more, this time without the actual content of email messages. The whole episode doesn't exactly inspire confidence in Seattle officials' ability to do basic math, comply with the public records law or protect sensitive information.

The Intern Art Project Award: Vermont Gov. Phil Scott

Seattle isn't the only city to stumble in response to Matt Chapman's public records requests for email metadata. The Vermont governor's office also wins for its scissor-and-glue approach to releasing electronic information.

Rather than export the email information as a spreadsheet, the Vermont governor's office told Chapman it had five interns (three of whom were unpaid) working six hours each, literally "cutting and pasting the emails from paper copies." Next thing Chapman knew, he had a 43-page hodgepodge collage of email headers correlating with one day's worth of messages. The governor's attorney told Chapman it would cost $1,200 to process three more days' worth of emails.

Chapman pushed back and provided his own instructions on exporting the data using a computer and not, you know, scissors and glue. Sure enough, he received a 5,500-line spreadsheet a couple weeks later at no charge.

The Least Transparent Employer Award: U.S. Department of Justice

In the last few years, we've seen some great resignation letters from public servants, ranging from Defense Secretary James Mattis telling President Trump "It's not me, it's you" to former Attorney General Jeff Sessions' forced resignation.

But the Trump DOJ seems to have had enough of the tradition and has now determined that U.S. Attorney resignation letters are private in their entirety and cannot be released under the Freedom of Information Act. Of course, civil servants should have their private information protected by their employer, but that's precisely what redactions should be used to protect.

Past administrations have released resignation letters that are critical of executive branch leaders. The change in policy raises the question: What are departing U.S. Attorneys now saying that the government wants to hide?

The Wrong Way to Plug a Leak Award: City of Greenfield, California

The Monterey County Weekly unexpectedly found itself in court after the city of Greenfield, California, sued to keep the newspaper from publishing documents about the surprising termination of its city manager.

When editor Sara Rubin asked the interim city manager for the complaint the outgoing city manager filed after his termination, she got nothing but crickets. But then, an envelope containing details of a potential city political scandal appeared on the doorstep of one of the paper's columnists.

The weekly reached out to the city for comment and began preparing for its normal Wednesday print deadline. Then, the morning of publication, the paper got a call saying that they were due in court. The city sued to block publication of the documents, to have the documents returned and to have the paper reveal the identity of the leaker.

Attorney Kelly Aviles of the First Amendment Coalition gave everyone a fast lesson in the First Amendment, pointing out that the paper had every right to publish. The judge ruled in the paper's favor, and the city ended up paying all of the Monterey County Weekly's attorney fees.

If It Looks like a Duck Award: Brigham Young University Police

Brigham Young University's Police Department is certified by the state,* has the powers of the state, but says that they're not actually a part of government for purposes of the Utah transparency law.

After the Salt Lake Tribune exposed that the university punished survivors of sexual assault for coming forward and reporting, the paper tried to get records of communications between the police department and the school's federally required sexual assault coordinator. BYU pushed back, saying that the police department is not subject to Utah's Government Records Access and Management Act because the police department is privately funded.

This actually turns out to be a trickier legal question than you'd expect. Brigham Young University itself isn't covered by the state law because it is a private school. But the university police force was created by an act of the Utah legislature, and the law covers entities "established by the government to carry out the public's business." Investigating crime and arresting people seems like the public's business.

Last summer, a judge ruled that the police department is clearly a state agency, but the issue is now on appeal at the Utah Supreme Court. Sometime this year we should learn if the police are a part of the government or not.

*Because BYU police failed to comply with state law, and was not responsive to an internal investigation, the Utah Office of Public Safety notified the department on Feb. 20 that the BYU police department will be stripped of its certification on Sept. 1, 2019. The University police also plan to appeal this decision.

The Insecure Security Check Award: U.S. Postal Service

Congressional elections can turn ugly, but the opponent of newly elected U.S. Rep. Abigail Spanberger got a boost when the U.S. Postal Service released Spanberger's entire personnel file, including her security clearance application, without redaction of highly sensitive personal information.

When a third party requests a person's federal employment file without the employee's permission, the government agency normally releases only a bare-bones record of employment dates, according to a Postal Service spokesperson. But somehow Rep. Spanberger wasn't afforded these protections, and the Postal Service has potentially made this mistake in a "small number" of other cases this year. Security clearance applications (Form SF-86) are supposed to be analyzed and investigated by the FBI, raising questions about how the FOIA officer got the information in the first place. The Postal Service has apologized for the mistake, which they say is human error, but maybe security clearance applications should be kept just as secure as the state secrets the clearance is meant to protect.

The Foilies were compiled by Electronic Frontier Foundation senior investigative researcher Dave Maass, staff attorney Aaron Mackey, Frank Stanton Fellow Camille Fischer and activist Hayley Tsukayama. Illustrations by EFF art director Hugh D'Andrade. For more on our work, visit eff.org.

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