The Foilies 2020 : Recognizing the year’s worst in government transparency
By the Electronic Frontier Foundation
“The Ringer” -- the first track on Eminem’s 2018 album, “Kamikaze” -- includes a line that piqued Buzzfeed reporter Jason Leopold’s curiosity: the rapper claimed the Secret Service visited him due to some controversial lyrics about Ivanka Trump. To find out if it was true, Leopold filed a request under the Freedom of Information Act (FOIA), the federal law that allows anyone to demand access to government records.
After a year of delays, the Secret Service provided Leopold 40 pages about the interview with the real Slim Shady, including a note that he was “exhibiting inappropriate behavior.”
This wasn’t the first time government transparency has intersected with hip-hop. Type “Freedom of Information” into Genius.com (the site formerly known as Rap Genius) and you’ll turn up tracks by Sage Francis and Scroobius Pip using FOIA as lyrical inspiration. The hip-hop duo Emanon sampled Joanna Newsom for “Shine Your Light,” in which they declare that because of redactions of FOIA documents, we’re “never gonna see the true history of this nation.” Even George Clinton, whom many rappers cite as inspiration, chanted about “getting funky” with the freedom of information on the track “Maximumisness.”
There’s nothing quite like an envelope of freshly photocopied documents to make a journalist or open-government advocate break into song. But there’s also nothing that brings the melody to a record-scratching halt than the government withholding information without due cause.
The Electronic Frontier Foundation is an international nonprofit based in San Francisco that fights to uphold civil liberties in the digital age — work that includes filing hundreds of public records requests each year with a variety of government agencies. In collaboration with the Association of Alternative Newsmedia, of which Inland 360 is a member, we also compile “The Foilies,” a list of anti-awards that name-and-shame government officials and corporations that stymie the public’s right to know.
Now in its sixth year, The Foilies are part of the annual Sunshine Week festivities, when news and advocacy organizations celebrate and bring attention to state and federal open-records laws that allow us to hold the powerful to account.
And the winners are …
The Twitter-Assist Award: President Donald Trump
It’s not often that prying documents out of the CIA comes with a little bit of help from the commander in chief. But Buzzfeed reporter Jason Leopold (yeah, he turns up a lot in The Foilies) stumbled into just that kind of luck when Trump tweeted an acknowledgement that he had ended “massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.”
Leopold requested information on the payments from the CIA. Despite the president’s confirmation that these payments existed, the CIA still refused to confirm or deny the records existed, a move known in the legal world as a “Glomar response.” Leopold went to court and a judge found that because Trump had acknowledged the payments publicly, the CIA had to stop playing secrecy games and hand over the documents.
The Space Opera Award: New Mexico Spaceport Authority
In space, no one can hear you scream about thwarted public records requests, but down on Earth, you can take the government to court and make them listen.
That’s what Heath Haussamen, editor and publisher of NMPolitics.net, did after the New Mexico Spaceport Authority in 2017 refused to hand over basic public records related to the private companies that lease real estate at Spaceport America, the much-publicized commercial launchpad just outside Truth or Consequences, N.M.
With a New Mexico Attorney General’s Office opinion in hand that determined the Spaceport Authority had violated the state’s open records law, Haussamen filed a lawsuit. After following the wormhole of the justice system, Haussamen finally received the records in 2019, along with a $60,000 settlement for his trouble—but not before the New Mexico Legislature stepped in and passed a new law granting the Spaceport even more secrecy over its operations.
The Catalog Is Out of the Bag Award: Special Services Group
In response to a California Public Records Act request for information about surveillance technology, the Irvine Police Department in California provided researchers at MuckRock and Open the Government with a catalog called the “Black Book” from a secretive company called Special Services Group. The catalog advertised a range of spy devices that would make Q drool, including cameras that can be concealed in gravestones, vacuum cleaners and baby car seats.
But, as Vice’s Motherboard prepared to publish a story on the documents, Special Services Group stepped out of the shadows to issue sweeping legal threats, arguing that by publishing the documents, researchers were violating everything from federal copyright law to arms control regulations. Vice, MuckRock and Open the Government rightfully resisted the censorship threat, since that’s not how it works. Special Services should have taken its beef to the city's law firm, which reviewed and then released the documents.
The Smokescreen Award: Texas Elementary Schools
Across the country, parents, educators and lawmakers are fuming about nicotine “vaping” among underage students. Considering that this is branded as a public health crisis, one would assume schools would be forthcoming with data about vaping incidents on campuses to help inform policymakers.
That’s not what Sarah Rafique, a reporter with ABC 13 Investigates in Houston, found when she filed records requests with more than 1,000 schools across Texas. About 10 percent of agencies missed the 10-day deadline to respond. One school demanded an (illegal) flat fee of $150 for all requests, while another agency demanded to know the reason for the request before they’d hand over the documents. “It was weird, too, that some districts said they didn't have any data/information but when I explained I was reaching out to 1,000 districts (and they wouldn't be singled out, per se) all of a sudden they had numbers to share,” Rafique said in a Twitter thread outlining the most troubling responses to her requests.
The Uncontrolled Burn Award: Federal Aviation Administration
Someone at the Federal Aviation Administration has an unhealthy relationship with their CD burner.
Last year, Mike Katz-Lacabe of the Center for Human Rights and Privacy filed a FOIA request with the FAA to get records about helicopters and airplanes operated by 19 different police agencies in California. The FAA turned up 120 MB of files. They could have put them on a single CD-ROM, which can hold about 700 MB of information. Instead, the FOIA officer burned the records to 19 separate discs and sent them to Katz-Lacabe in the mail.
The Queen of all FOIA Denials: Egyptian Museum of Berlin
For three years, Cosmo Wenman battled with the German-government-funded Egyptian Museum and Papyrus Collection (aka, the Egyption Museum of Berlin) over a freedom of information campaign to release the 3D scan of a bust of Queen Nefertiti. The museum denied the request for the high-quality scan of the statue, which is more than 3,000 years old, arguing that it would threaten its commercial interests — namely by creating competition in the sale of images or reproductions.
“The organization was treating its scan of Nefertiti like a state secret,” Wenman wrote in “Reason.”
After a prolonged battle, and temporary access to a very slow computer containing the scan, Wenman was finally given a USB drive with the full 3D image. No word on whether museum visits have declined precipitously.
The Busiest Government Office Award: U.S. Department of Justice
In response to yet another FOIA request from Buzzfeed reporter Jason Leopold, this time for documents relating to the Mueller investigation, the Justice Department claimed it has as many as 19-billion responsive documents. This would mean the investigation had generated or collected more than 28-million documents each day, weekends included.
Although Mueller’s investigation lasted 22 months, the department told Leopold it would take 2,300 years for it to review and produce the requested records for public disclosure. Leopold tweeted that he is exploring cryogenics as a way to review the records in the 4320s.
The Pointless Redaction Award: Mueller Report
Among the many blacked-out sections of the Mueller Report, a few redactions particularly stood out. The National Security Archive reported that the Justice Department redacted sections of public news stories that the Mueller Report quotes or cites. For example, the report cites a CNN headline as: “[Redacted] Says He Won’t Agree to Plea Deal” — but the CNN story is freely available online, and a quick Google search shows that the redacted words are “Roger Stone Associate.”
The Repeat Winner Award: Atlanta Mayor’s Office
Back in 2018, then-Atlanta Mayor Kasim Reed earned a Foilie when he responded to a corruption probe by releasing 1.476 million documents, which he displayed in a six-foot wall of boxes at a press conference, even though it turned out that many of the documents were entirely blank or fully redacted.
Mayor Reed is no longer in office, but his legacy lives on in Atlanta, where his former press secretary, Jenna Garland, was convicted this year for violating Georgia’s Open Records Act. The New York Times reported that she sought to frustrate journalists’ requests for records by directing city spokespeople to be “as unhelpful as possible,” “drag this out as long as possible” and “provide information in the most confusing format available.”
This is the first time that a public official has been charged or convicted under Georgia’s open records laws.
The Unnecessary Fee Award: Horry County, S.C.
Horry County, S.C., is the home of Myrtle Beach and its many dedicated beach-goers — and home to this year’s most unnecessary FOIA fee. The Myrtle Beach Sun News sent out requests to a number of local towns and public entities inquiring about payments made on behalf of public agencies to settle lawsuits in the last five years. Many of the towns in Horry County emailed the responsive documents back for free; some charged less than $50, but the county itself asked for $75,500.
When asked why the records cost so much, the county was unable to provide an exact accounting. Although its $75,500 demand is not the most outrageous total to grace the Foilies, Horry County’s response is award-worthy in light of how disproportionate it was compared to other agencies.
The Surveillance for You, Privacy for Us Award: Ring Inc.
The Electronic Frontier Foundation has written a lot about Amazon Ring surveillance doorbells, mostly aided by a torrent of great investigative reporting done by journalists using public records requests. The doorbells may be capturing the movements and conversations of neighbors and pedestrians in neighborhoods all across the United States, but Ring employees really value their privacy.
One researcher, Shreyas Gandlur, turned up an email from Ring to the Joliet City Police Department, asking them to redact the names and email addresses of any Ring employees that may show up in emails released through FOIA. “Ring employees have strong personal privacy interests,” wrote one Ring employee (whose name was redacted).
The About Face on Face Recognition Award: Immigration and Customs Enforcement
How hard is it to unmask records on face recognition? The Project on Government Oversight (POGO) discovered the many faces of Immigration and Customs Enforcement (ICE) when it filed a request for information on the agency’s acquisition and use of face recognition technology.
ICE initially said it had only three redacted records—while failing to search one of its largest directorates, Enforcement and Removal Operations (ERO). After POGO successfully appealed, ICE responded that a query of ERO had been conducted and was being reviewed. Two months later, ICE said the request had been closed. After POGO reached out to the agency, ICE then contradicted itself, stating that the appeal was assigned and ERO would be queried. A follow-up request seeking updated information was met with silence. Accordingly, POGO has decided to face off with ICE in a different venue — the courtroom — after filing a lawsuit for the records.
The Hardest Department to FOIA Award: Chicago Police Department
In 2019, the Chicago Police Department was in the news multiple times for its inability to respond to even the most straightforward public records requests.
After members of the department raided the wrong home and traumatized a family, the family sought to get the body camera footage of the raid. The family believed that, in addition to showing the mistaken raid, it would also show police misconduct. Unfortunately, the department refused to turn over the footage.
In July, the department was forced to turn over documents after 14 months of stalling over a FOIA request for files on officers. After a legal opinion from the Illinois Attorney General, the department turned over a spreadsheet with more than 33,000 names dating back to the 1940s.
Does the Chicago Police Department use search warrants? Of course it does, but you wouldn’t know it by its FOIA responses. Also in July, the department told Lucy Parsons Labs that it did not have any responsive documents for a request for all executed search warrants. After several months of fighting, the department finally released records about 11,000 search warrants issued over a five-year period.
The Choose-Your-Own Exemption Award: Immigration and Customs Enforcement
What’s an agency to do when it can’t identify a FOIA exemption to justify withholding records? In ICE’s case, it created its own.
As is common practice in immigration court, where there is no discovery process, attorney Jennifer Smith sought the immigration file of a client by filing a FOIA request with U.S. Citizenship and Immigration Services. Immigration services told Smith that it had identified 18 records, but instead of producing those records, it mysteriously instructed Smith to request them from ICE.
Two years later, ICE finally responded that it was withholding the records to “deny fugitive alien FOIA requesters access to the FOIA process when the records could assist the alien in continuing to evade immigration enforcement efforts.” While admittedly creative, there is no “fugitive disentitlement” exemption under FOIA. Moreover, this fake exemption countered exactly what immigration attorneys are trying to do: ensure that their clients won’t be considered fugitives.
The ACLU of Colorado sued on Smith’s behalf, and in 2019, won the case.
The Anything Can Be Confidential Award: U.S. Supreme Court
With the rise of outsourcing, no-bid contracts and elected officials seeking to reduce government spending, private businesses and government have never been more intertwined. Whether it be facial recognition technology or algorithms used to determine whether people receive public-assistance benefits, private companies and the technology they build are embedded in government’s daily work.
Yet in June, the U.S. Supreme Court made it much harder for the public to access records that involve private companies. In the case Food Marketing Institute v. Argus Leader, the court interpreted a FOIA exemption broadly to allow the government to withhold records that a company considers confidential. Prior to the Supreme Court’s decision, private information could not be withheld from a FOIA requester unless the government or the business could show that making the information public would harm the business. But under the court’s June decision, the government can withhold any information a business deems private.
Confidential business information under FOIA is thus in the eye of the beholder, a result that will frustrate the public’s ability to understand how the government uses private companies’ products and technologies as part of its duties.
The Resigned to Secrecy Award: Oregon Gov. Kate Brown
Oregon Gov. Kate Brown came into office with a stated goal of restoring trust after public records showed that her predecessor had ordered officials to delete thousands of his emails from state servers. One concrete step Brown took to improve transparency: creating a state public records advocate to push for more openness.
The abrupt resignation of Oregon’s newly minted public records advocate, Ginger McCall, in September significantly undercut Brown’s stated commitment to transparency. In her resignation letter to Brown, McCall said that she received “meaningful pressure” from Brown’s office to advocate for the governor’s interest, rather than the public’s interest in having a transparent state government. Brown’s office at first denied McCall’s characterization and later chalked it up to a difference in views on McCall’s position.
McCall released notes of her meetings with Brown’s staffers that reflected an effort to make McCall’s position report directly to the governor’s staff, rather than being an independent advocate for the public.
The Enemy of the Press Award: California Attorney General Xavier Becerra
Obtaining data about police misconduct under California’s public records law can be a crime, according to California Attorney General Xavier Becerra. That was the upshot of legal threats Becerra’s office made to two investigative reporters in March after they received data on police officer arrests and convictions in the past 10 years in response to a public records request filed with the Commission on Peace Officers Standards and Training.
According to a letter from Becerra’s office, the spreadsheet, which detailed officers’ criminal histories, was off-limits to the public and its mere possession by the reporters was a misdemeanor. The reporters didn’t back down and instead “formed an unprecedented collaboration to investigate the list, involving three dozen news outlets across the state.”
Becerra’s legal threats backfired spectacularly, leading to statewide comprehensive reporting about criminal investigations into police officers, including a searchable database. But Becerra should never have threatened the journalists in the first place, an authoritarian move that conflicts with his efforts these past years to position himself as the counterweight to President Donald Trump.
The Stupid, Dumb, F***ing Idiot Award for Political Interference: U.S. Department of the Interior
In 2019, reporters at Roll Call broke the news that the Interior Department had been allowing political officials to intervene in the processing of FOIA requests, either by stalling or potentially blocking the agency from fulfilling the request.
The reporting on this so-called “awareness review process” was based on FOIA documents obtained by Aaron Weiss of the Center for Western Priorities, an environmental organization based in Colorado. Among the scores of examples Weiss obtained was a stalled FOIA request from Buzzfeed’s Jason Leopold for all emails in which Interior press secretary Heather Swift used the terms “fucking," "idiot," "stupid" and "dumb.” (Swift had already been caught calling CNN’s René Marsh a “fucking idiot” in an email.)
“If political appointees get to decide what the public gets to see, it completely undermines the letter and spirit of FOIA,” Weiss says.
The Foilies were compiled by Electronic Frontier Foundation Senior Investigative Researcher Dave Maass, staff attorneys Aaron Mackey and Saira Hussain, Frank Stanton Fellow Naomi Gilens and policy analyst Matthew Guariglia. Illustrations are by designer Caitlyn Crites. For more on their work, visit eff.org.
