This Week in Transparency: SWAT Secrecy and PACER Problems

This Week in Transparency: SWAT Secrecy and PACER Problems
August 29, 2014

This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.

SWAT Secrecy and Pentagon Hand-me-downs

This week the ACLU issued a report on police militarization based on hundreds of public records requests to police departments across the country. However, the most troubling part was perhaps not what the report found, but what it couldn't find.

"The records that were produced revealed an extremely troubling trend: that data collecting and reporting in the context of SWAT was at best sporadic and at worst virtually nonexistent," the ACLU report says. "Not a single law enforcement agency in this investigation provided records containing all of the information that the ACLU believes is necessary to undertake a thorough examination of police militarization."

The worst offender offender was Massachusetts, where many SWAT teams are run by regional law enforcement councils, or LECs. Several of these LECs are incorporated as 501(c)(3) non-profits. The Washington Post's Radley Balko reports:

"According to the ACLU, the LECs are claiming that the 501(c)(3) status means that they’re private corporations, not government agencies. And therefore, they say they’re immune from open records requests. Let’s be clear. These agencies oversee police activities. They employ cops who carry guns, wear badges, collect paychecks provided by taxpayers and have the power to detain, arrest, injure and kill. They operate SWAT teams, which conduct raids on private residences. And yet they say that because they’ve incorporated, they’re immune to Massachusetts open records laws. The state’s residents aren’t permitted to know how often the SWAT teams are used, what they’re used for, what sort of training they get or who they’re primarily used against."

The events in Ferguson, Missouri have spurred a number of news investigations into the Pentagon's 1033 program.

  • More than 100 colleges have received equipment under the Pentagon's 1033 program. Some of it as mundane as cold-weather gloves, but Ohio State got itself an MRAP. Politico's ace higher ed reporter Allie Grasgreen, who is also my wonderful fiancé, has the story.
  • Jason Leopold has the list of all the 1033 equipment the Ferguson police received.
  • Pacific Standard has a comprehensive list of the best reporting on Ferguson and policing militarization.
  • Virginia State Police refuse to release list of taxpayer-funded weapons and tactical equipment

Meanwhile in dumb news, independent conservative scribbler Charles Johnson filed a FOI lawsuit to obtain Michael Brown's juvenile court records. You might remember Chuck for his supporting role in a Cuban intelligence plot to smear U.S. Senator Robert Menendez. Anyway, his latest effort is, as is his habit, a simultaneously impressive and sloppy exercise in politically charged dickery. It should not need to be stated why it's ghoulish to try and dig up a dead 18-year-old's juvenile records. Nor is it evident, besides the most obvious attempts at character assassination, what bearing those records would have on whether Brown should have been gunned down by police. But that is all probably moot because Johnson's lawsuit doesn't appear to have much ground to stand on, at least from a cursory glance at Missouri open record laws. From the RCFP's open government guide for Missouri:

Mo.Rev.Stat. § 211.321: Juvenile Court Records. Records of Juvenile Court proceedings are generally closed pursuant to Mo.Rev.Stat. § 211.321. Such records may only be opened by order of the Juvenile Court, to persons having a "legitimate interest" in the records. Id. Information and data may be released to persons or organizations "authorized by law" to compile statistics relating to juveniles. Mo.Rev.Stat. § 211.321.4. However, the Juvenile Court is required to adopt procedures to protect the confidentiality of the identities of children. Id. In addition, certain general information about the informal adjustment or formal adjudication of a child's case may be revealed to the family of the victim. Mo.Rev.Stat. § 211.321.6.

LAWSUITS

  • Senate Intelligence Chairwoman Dianne Feinstein intervenes in FOIA process to request delay of Jason Leopold's request for the CIA torture report. Feinstein has been battling the administration on heavy redactions to the report the committee is hoping to release. “Not only would it be inappropriate for the Department [of Justice] to release documents related to the Committee’s study prior to the Committee’s own release, but the result of the ongoing negotiations [with the administration] will likely positively affect the redactions in the documents sought through the FOIA process,” she wrote ahead of an Aug. 29 round of filings in the FOIA case. “I ask that you request an additional one-month delay.” National Journal has more on the unusual proceedings.
  • In long-running ACLU suit, judge may release more Abu Ghraib photos. "Federal Judge Alvin Hellerstein in New York ruled Wednesday that the Defense Department had not provided evidence that disclosing the nearly 2,000 photos would endanger U.S. citizens and military personnel abroad."
  • Government lawyers argue against in camera review of state secrets in constitutional challenge to "no fly" list.
  • Judge smacks down Obama admin attempt to use "deliberative process" exemption to shield docs revealing Treasury Dept relationship with Fannie and Freddie. “Defendant asserts that the court should merely take its word that the documents—some of which defendant itself has not reviewed—are privileged. This is contrary to law.”


FOIA Reform

The Sunlight Foundation's Rebecca Williams has a call to arms for combining open data and FOI advocacy that is well worth reading:

The relationship between the U.S. open data initiatives that we see today and the freedom of information advocacy that has been going on since the 1960s has not always been clear for advocates in either camp. However, not only can open data and FOI disclosure efforts work symbiotically, they can also learn from each others’ shortcomings, and in many instances meet each other in the middle to create more robust, comprehensive information disclosure. In addition to upgraded records management and building open data policies on their existing freedom of information laws, jurisdictions of all sizes should:

  1. Collect and open FOI request data.
  2. Use FOI request data to inform open data release prioritization.
  3. Invest in tools that organize, streamline and publicly share FOI requests and responses online.
  4. Connect open data initiatives and FOI responses through policy and technology.

Meanwhile, the Charlotte Observer editorializes in favor of the FOIA improvements Act:

Government keeps a lot of secrets from you.
Like the fact that former Charlotte Mayor Patrick Cannon took bribes to help a strip club owner when a light-rail line was slated to run through his property.
Like to what extent the federal government encouraged Bank of America to buy Countrywide Financial, a deal that helped fuel more than $50 billion in mortgage losses for the bank.
Like the fact that medical examiners in North Carolina rarely go to death scenes and sometimes don’t even see the body before ruling on the cause of death.
These and countless other stories came out because of state and federal Freedom of Information laws. Those laws require federal, state and local governments to provide documents to the public unless they are protected by certain exemptions.
The federal law has nine exemptions, most of them quite sensible. But one of them, known as Exemption 5, is increasingly being abused by government officials who don’t want certain public information revealed. A bipartisan U.S. Senate bill known as the FOIA Improvement Act would curtail that practice and make other improvements. Congress should pass it at once.

Why is PACER memory-holing some of its archives?

Court watchers were alarmed this week when PACER unceremoniously dumped a large number of cases from its archives. The Washington Post reports that PACER, which it charitably describes "oft-maligned," is overhauling its system, and several courts were no longer compatible. The story highlights many of the problems with the clunky PACER system. The bright side of all this is the article introduced me (and possibly you!) to Recap The Law, a crowd-sourced, free repository of court filings. Let's cross our fingers and hope RECAP gets big enough to disrupt, as the Silicon Valley tech bros say, the PACER system. Then maybe no one will ever have to look at these anthropomorphic monstrosities again:


Blue moon: CIA accepts Cryptome appeal of initial-level Glomar response, will send request to panel.

Regular Moon: David Shafer, writing at the NYT, files a FOIA request for 64-year-old records on his grandpa, who was a CIA asset. CIA refuses to release records, citing national security.

Regular Moon, Cont.: DIA rejects FOIA on Gitmo recidivism, claims its classified

The most transparent admin in history, an ongoing series
The Secret Service tried to shut down a film crew that was shooting video on public property:

Vocativ was on Martha’s Vineyard over the weekend to film a piece about the African-American community on the island. While we were shooting on Beach Road, one of the busiest thoroughfares on the Vineyard, the Secret Service approached and asked us to switch off our camera for 15 minutes.
A moment later, first lady Michelle Obama power walked by our crew. She was out for some exercise with a small group—and a serious security detail. It was 9:30 in the morning.
Our producer and cameraman were surrounded by Secret Service agents and very strongly advised to stop filming. At one point, Mrs. Obama looked in their direction and said, “Don’t do that.” It’s unclear if she was telling the agents to leave us alone, or scolding us for filming on public property.

STATE NEWS

  • Phoenix VA refuses to release report on veteran suicides to the Arizona Republic
  • Mass. DA possibly violates public record law by withholding portions of report on independent investigation into her office.
  • Privacy concerns raised after Tacoma police admit to using a Stingray device for the past five years.
  • ACLU files First Amendment lawsuit against Oklahoma, arguing the state acted unconstitutionally by drawing a screen during execution.

EVENTS

  • Sep. 4: Self-described "open-records geek" Austin Nolen will be holding a FOIA workshop at Wooden Shoe Books in Philly.
  • Oct. 23-24: National Freedom of Information Coalition annual summit

Subscribe to CJ Ciaramella's weekly FOIA newsletter here.