The Foilies 2021

Recognizing the Year's Worst in Government Transparency

Compiled by the Electronic Frontier Foundation and MuckRock News

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?

OK, 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. The reporting team collects 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. This rogues gallery is published as a faux awards program in March during Sunshine Week, an annual celebration of open government organized by the News Leaders Association.

And without further ado…

The Pharaoh Prize for Deadline Extensions — Chicago Mayor Lori Lightfoot

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, Ill., 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 also are 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 (Passover) 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."

Transparency is crucial to ensuring the government's response to COVID-19 is both effective and equitable. And if ancient Egyptians had the power to FOIA the Pharaoh for communications with Moses and Aaron, perhaps they would have avoided all 10 plagues — blood, frogs, the angel of death and all.

The Doxxer Prize — Forensic Examiner Colin Fagan

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, didn’t 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 in the history of the Foilies. Fagan has since turned his email newsletter into a "law enforcement restricted site."

The Government Retribution Award — City of Portland, Ore.

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.

The Most Expensive Cover-Up Award — Small Business Administration

In the early weeks of the pandemic, the Small Business Administration 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 administration dragged its feet, and then — after the news organizations sued — tried to withhold the information under FOIA exemptions 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. The department didn’t 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 Review 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 Cat Face Filter Award — Federal Bureau of Prisons

Kids these days — overlaying cat faces on their videos and showing the Bureau of Prisons how it should redact media sought by FOIA requesters. That was the message from an incredulous federal appeals court in March 2020 after the bureau claimed it lacked the ability to blur out or otherwise redact faces (such as those of prisoners and guards) from surveillance videos sought through FOIA by an inmate who was stabbed with a screwdriver in a prison dining hall.

The court wrote: “The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans.” The judge made clear that although “we do not necessarily advocate that specific technique,” the bureau’s decision to redact video footage was completely 😹😹😹.

The Juking the FOIA Stats Award — Centers for Disease Control

“The Wire,” the classic HBO police drama, laid bare how police departments across the country manipulate data to present trends about crime being down. As ex-detective Roland Pryzbylewski put it: “Juking the stats ... Making robberies into larcenies. Making rapes disappear. You juke the stats, and majors become colonels.”

The Centers for Disease Control seems to love to juke its FOIA stats. As the nonprofit advocacy organization American Oversight alleged in a lawsuit last year, the CDC has been systematically rejecting FOIA requests by claiming they are overly broad or burdensome, despite years of court decisions requiring agencies to work in good faith with requesters to try to help them find records or narrow their request. The CDC then categorizes those supposedly overbroad requests as “withdrawn” by the requester and closes the file without having to provide any records. So those FOIAs disappear, much like the violent crime reports in “The Wire.”

The CDC’s annual FOIA reports show that the agency’s two-step juke move is a favorite. According to American Oversight, between 2016 and 2019, CDC closed between 21 percent to 31 percent of all FOIA requests it received as “withdrawn.” The CDC’s closure rate during that period was roughly three times that of its parent agency, the Department of Health and Human Services, which on average only closed 6 percent to 10 percent of its FOIAs as withdrawn. After American Oversight sued, the CDC began releasing documents.

The Save the Children (in a Hidden Folder) Award — Louisville Metropolitan Police Department, Ky.

The Louisville Metropolitan Police Department’s Explorer Scouts program was supposed to give teenagers a chance to learn more about careers in law enforcement. For two Louisville police officers, though, it became an opportunity for sexual abuse. When reporters asked for more information on the perpetrators, the city chose to respond with further absurdity — by destroying its records. The case against the city and the Boy Scouts of America is scheduled to begin in April.

The Courier-Journal in Louisville first asked for all records regarding the two officers’ sexual abuse of minors in mid-2019. Louisville claimed it didn’t have any; they had been turned over to the FBI. Then the Courier-Journal appealed, and the city eventually determined that — well, what do you know — they’d found a “hidden folder” still containing the responsive records — 738,000 of them, actually. Not for long, though. Less than a month later, they’d all been deleted, despite the ongoing request, a casualty of the city’s automated backup and deletion system, according to Louisville.

At the end of 2020, the Courier-Journal was still fighting the city’s failure to comply with the Kentucky Open Records Act.

"I have practiced open records law since the law was enacted 45 years ago, and I have never seen anything so brazen," Courier-Journal attorney Jon Fleischaker told the newspaper.

The Handcuffs and Prior Restraints Award — Chicago Police Department and City of Chicago

In February 2019, a swarm of Chicago police officers raided the wrong apartment with their guns drawn. They handcuffed the resident, Anjanette Young, who was completely undressed, and they refused to let her put on clothes as she pleaded with them dozens of times that they had the wrong house. Young sued the city in federal court and filed a request for body camera footage of the officers who invaded her home. The local CBS affiliate, CBS 2, also requested the body camera footage.

The Chicago Police Department denied both requests, despite a binding ruling just months earlier that the department was required to turn over body camera footage to people like Young who were involved in the recorded events. Young ultimately got the footage as part of her lawsuit and her attorney provided them to the media. The city’s lawyers then took the extraordinary step of asking the court to order CBS 2 not to air the video, a demand to censor speech before it occurs called a "prior restraint." The judge denied the city’s request.

The city also sought sanctions against Young’s attorney, but the city withdrew its motion and Chicago Mayor Lori Lightfoot called the request “ill-advised” in a letter to the court. The judge decided not to sanction Young’s attorney.

The Thin Crust, Wood-Fired Redactions Award — U.S. State Department

Former Secretary of State Mike Pompeo hosted plenty of controversial meals during his three-year tenure. There was an indoor holiday party last December and lavish “Madison Dinners” that cost taxpayers tens of thousands of dollars, including more than $10,000 for embossed pens alone. And while we know the full menu of Pompeo’s high-class North Korea summit in 2018 in Manhattan — filet mignon with corn purée was the centerpiece — the public may never find out two searing culinary questions about Mikey: What are his pizza toppings of choice, and what’s his go-to sandwich?

On the pizza angle, the State Department let slip that Pompeo likes it thin and wood-fired, in emails released to NBC correspondent Josh Lederman. But the list of toppings was far too saucy for public consumption, apparently, and redacted on privacy grounds. Same for Pompeo’s sandwich-of-choice, which the State Department redacted from emails released to American Oversight. But we still know “plenty of dry snacks and diet Coke” were on offer.

The Foilies were compiled by Electronic Frontier Foundation’s Dave Maass, Aaron Mackey and Naomi Gilens; and MuckRock News’ Michael Morisy, Beryl Lipton and Shawn Musgrave. Illustrations are by Caitlyn Crites.

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