Deeplinks

The Foilies 2021

Read the original article: The Foilies 2021

Recognizing the year’s worst in government transparency.

The Foilies were compiled by Electronic Frontier Foundation Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey,  and Frank Stanton Fellow Naomi Gilens, and MuckRock News Co-Founder Michael Morisy and Senior Reporter and Projects Editor Beryl Lipton, with further writing and editing by Shawn Musgrave. Illustrations are by EFF Designer Caitlyn Crites.

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 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 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 non-profit dedicated to building a community of cool kids that file Freedom of Information Act (FOIA) and local public records requests. For previous year’s dubious winners (many of whom are repeat offenders) check out our archive at www.eff.org/issues/foilies.

And without further ado…

The Most Secretive Dog’s Bollocks –  Conan the Belgian Malinois

An illustration of a jumping dog with a black box censoring its hind region

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, a.k.a. 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 Pharaoh Prize for Deadline Extensions – Chicago Mayor Lori Lightfoot, Illinois

An illustration of a flood of frogs and redact

With COVID-19 affecting all levels of government operations, many transparency advocates and journalists were willing to accept some delays in responding to public records requests. However, some government officials were quick to use the pandemic as an excuse to ignore transparency laws altogether. Taking the prize this year is Mayor Lori Lightfoot of Chicago, who invoked the Old Testament in an effort to lobby the Illinois Attorney General to suspend FOIA deadlines altogether.

“I want to ask the average Chicagoan: Would you like them to do their job or would you like them to be pulled off to do FOIA requests?” Lightfoot said in April 2020, according to the Chicago Tribune, implying that epidemiologists and physicians are also the same people processing public records (they’re not).

She continued: “I think for those people who are scared to death about this virus, who are worried every single day that it’s going to come to their doorstep, and I’m mindful of the fact that we’re in the Pesach season, the angel of death that we all talk about is the Passover story, that angel of death is right here in our midst every single day.” 

We’d just note that transparency is crucial to ensuring that the government’s response to COVID is both effective and equitable. And if ancient Egyptians had the power to FOIA the Pharaoh for communications with Moses and Aaron, perhaps they probably would have avoided all 10 plagues — blood, frogs, and all. 

The Doxxer Prize – Forensic Examiner Colin Fagan 

A screen grab of a newsletter asking people to send Shreyas Gandlur messages. Personal information has been redacted.

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, 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

An email that has been almost completely censored except the words "Oy vey."

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,” were 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. 

The Most Expensive Cover-Up Award – Small Business Administration 

In the early weeks of the pandemic, the Small Business Administration (SBA) 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 The News and Observer 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, Eve

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Read the original article: The Foilies 2021