The Foilies – 2019

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The cause of government transparency finally broke through to the popular consiousness this year. It wasn’t an investigative journalism exposé or a civil rights lawsuit that did it, but a lighthearted sitcom about a Taiwanese-American family set in Orlando, Fla., in the late 1990s.

In a January episode of ABC’s “Fresh Off the Boat,” the Huang family’s two youngest children — overachievers Evan and Emery — decide if they sprint on all their homework, they’ll have time to plan their father’s birthday party.

“Like the time we knocked out two English papers, a science experiment, and built the White House out of sugar cubes,” Evan said. “It opened up our Sunday for filing Freedom of Information requests.”

“They may not have figured out who shot JFK,” Emery added. “But we will.”

The eldest child, teenage slacker Eddie, concluded with a sage nod, “You know, once in a while, it’s good to know nerds.”

Amen to that. Around the world, nerds of all ages are using laws like the United States’ Freedom of Information Act (and state-level equivalent laws) to pry free secrets and expose the inner workings of our democracy. Each year, open government advocates celebrate these heroes during Sunshine Week, an annual advocacy campaign on transparency.

But the journalists and researchers who rely on these important measures every day can’t help but smirk at the boys’ scripted innocence. Too often, government officials will devise novel and outrageous ways to reject requests for information or otherwise stymie the public’s right to know. Even today — 20 years after the events set in the episode — the White House continues to withhold key documents from the Kennedy assassination files.

Since 2015, the Electronic Frontier Foundation (a nonprofit that advocates for free speech, privacy and government transparency in the digital age) has published the Foilies to recognize the bad actors who attempted to thwart the quests for truth of today’s Evans and Emerys. With these tongue-in-cheek awards, the foundation calls out attempts to block transparency, retaliation against those who exercise their rights to information, and the most ridiculous examples of incompetence by government officials who handle these public records.

The following are some of this year’s awards. More can be found with this story online at inland360.com.

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 nondisclosure 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 also has 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 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 Amit 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.

The Cash for Crash Award — Michigan State Police

As tech companies experiment with autonomous vehicles on public roadways, reporters are keeping tabs on how often these cars are involved in collisions. That’s why technology industry investigator Matt Drange of the Information has been filing records requests for the crash data held by state agencies.

Some government departments have started claiming that every line of the dataset is its own, individual record and subject to a copy fee. Our winner, the Michigan State Police, proposed to charge Drange a 25-cent fee for each of a 1.9 million-line dataset, plus $20 for a thumbdrive, for a grand total of $485,645.24, with half of it due up front. Runners-up that quoted similar line-by-line charges include the Indiana State Police ($346,000) and the North Carolina Department of Transportation ($82,000). Meanwhile, Florida’s government released its detailed dataset at no charge at all.

The Bartering with Extremists Award — California Highway Patrol

In 2016, the Traditionalist Worker Party (TWP), an infamous neo-Nazi group, staged a demonstration at the California State Capitol. Counter-protesters fiercely opposed the demonstration, and the scene soon descended into chaos, leaving multiple people injured. When the dust settled, a member of the public (disclosure: also a co-author of this piece) filed a California Public Records Act request to obtain a copy of the permit the white nationalist group filed for its rally. The California Highway Patrol rejected the request for this normally available document, claiming it was related to a criminal investigation.

Two years later, evidence emerged during criminal proceedings that a highway patrol detective used the public records request as a bargaining chip in a phone call with the TWP protest leader, who was initially reluctant to provide information. The officer told him how the request might reveal his name. “We don’t have a reason to ... uh ... deny (the request),” the officer said according a transcript of the call. But once the organizer decided to cooperate, the officer responded, “I’m gonna suggest that we hold that or redact your name or something ... uh ... until this thing gets resolved.” In light of these new facts, the First Amendment Coalition filed a new request for the same document. It too was denied.

The Preemptive Shredding Award — Inglewood Police Department

In defiance of the law enforcement lobby, Calif-ornia legislators passed a law (SB 1421) requiring police and sheriffs to disclose officer misconduct records in response to California Public Records Act requests. These documents, often contained in personnel files, had historically been untouchable by members of the public and the press.

Almost immediately, police unions across the Golden State began to launch lawsuits to undermine these new transparency measures. But the Inglewood Police Department takes the prize for its efforts to evade scrutiny. Mere weeks before the law took effect Jan. 1, 2019, the agency began destroying records that were set to become publicly available.

“This premise that there was an intent to beat the clock is ridiculous,” Inglewood Mayor James T. Butts Jr. told the L.A. Times in defending the purge. We imagine Butts would find it equally ridiculous to suggest that the fact he had also been a cop for more than 30 years, including serving in Inglewood and later as police chief of Santa Monica, may have factored into his support for the destruction of records.

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 Clawback Award — The Broward County School Board

After the tragic Parkland shooting, the South Florida Sun-Sentinel went to court to force the Broward County School Board to hand over documents detailing the shooter’s education and disciplinary record. A judge agreed and ordered the release, as long as sensitive information was redacted.

But when reporters copied and pasted the file into another document, they found that the content under the redactions was still there and readable. They broke the story of how the school denied the shooter therapeutic services and alternative education accommodations, but then uploaded the school board’s report with working redactions.

Rather than simply do better with double-checking their redactions next time, the school board struck back at the newspaper. They petitioned the court to hold the newspaper in contempt and to prevent anyone from reporting on the legally obtained information. Although the local judge didn’t issue a fine, she lambasted the paper and threatened to dictate exactly what the paper could report about the case in the future (which is itself an unconstitutional prior restraint).

The Wrong Way to Plug a Leak Award — City of Greenfield, Calif.

The Monterey County Weekly unexpectedly found itself in court after the city of Greenfield, Calif., 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 the BYU police force failed to comply with state law and was unresponsive 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. The university police plan to appeal this decision.

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. More about their work can be found at eff.org.

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