This Week in Transparency: Shenanigans at the CIA, open-source FOIA reform, and more

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

Footnote of the Year from the Supreme Court of Texas: Page five, footnote seven of this decision ...

7. THE BIG LEBOWSKI (PolyGram Filmed Entertainment & Working Title Films 1998) ("For your information, the Supreme Court has roundly rejected prior restraint.").

Context, added: Last week I noted this story about a judge rejecting government arguments to withhold documents on the Treasury Department's relationship with mortgage giants Fannie and Freddie. FOIA expert Harry Hammitt writes in: "The case they cite to was in the Federal Circuit that doesn’t hear FOIA cases at all, but occasionally deals with some related issue. I read this to mean the court said Fannie Mae’s deliberative process claim wasn’t appropriate under the circumstances, not that the records definitely were not privileged." Hammitt, by the way, writes Access Reports, an in-depth and authoritative publication on freedom of information and privacy law.

Intercepted: The Intercept, Glenn Greenwald's aggressive new outlet, FOIA'd emails between the CIA public affairs office and reporters. The resulting story accuses Los Angeles Times national security reporter Ken Dilanian of being a patsy for the CIA. I won't wade into the thorny ethical issues the story raises, except to say that this is your regular reminder that nearly everything you write in emails to federal agencies can be FOIA'd. Choose wisely. What is more interesting for our purposes, however, is what the CIA redacted from the emails. From The Intercept:

It’s impossible to know precisely how the CIA flacks responded to reporters’ queries, because the emails show only one side of the conversations. The CIA redacted virtually all of the press handlers’ replies other than meager comments that were made explicitly on the record, citing the CIA Act of 1949, which exempts the agency from having to disclose "intelligence sources and methods" or "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." The contents of off-the-record or background emails from CIA press handlers clearly don’t disclose names, titles, or salaries (which can easily be redacted anyway); they may disclose sources and methods, depending on whether you view manipulation of American reporters as an intelligence method. (The Intercept is appealing the redactions.)

LAWSUITS

The fight over records in Ferguson continues. Last week I highlighted a petition by conservative blogger Chuck Johnson to try and obtain Michael Brown's sealed juvenile court records. Johnson was seeking the records based on now-debunked rumors that Brown had a murder charge on his record. The St. Louis Post-Dispatch is also petitioning the court to release the records:

The parents of Michael Brown were represented at the hearing by their attorney, Anthony Gray. Although he did not speak in the hearing, outside the courtroom he blasted the Post-Dispatch and Johnson for requesting the juvenile files.

There was one reason, and one only, the organizations wanted to view the files, he said: "The character assassination of Mike Brown."

Post-Dispatch editor Gilbert Bailon disputed the idea that seeking any juvenile records was designed to impugn Michael Brown.

ldquo;We are a news organization that pursues facts, which are the basis of coverage. Innuendo and speculation through various forms of media have raised questions about whether Michael Brown had a criminal record. We are seeking to find those facts without prejudgment or bias."

ldquo;It is ironic that today’s new information appears favorable to Michael Brown by stating he had no record of adult or serious juvenile crimes, yet some have characterized the pursuit of that information as damaging to Michael Brown," Bailon said.

Both Johnson and the Post-Dispatch argue that Brown has no claim to privacy anymore, since he is dead. As I wrote before, attempting to unseal juvenile court records of a dead 18-year-old based on admittedly thin rumors and innuendo is kind of ghoulish, but I suppose that is the Post-Dispatch's prerogative.

Other lawsuit news:

  • Jason Leopold, writing at Vice News, has in-depth analysis on the 2,100 pictures of detainee abuse the DoD may soon release in response to the ACLU's long-running lawsuit.
  • Court upholds denial of FOIA request for 9/11 hijacker's photo.
  • DOJ files motion seeking stay of order to release list of privileged documents the administration is withholding from Congressional Republicans' Fast and Furious investigation. DOJ lawyers argue court "should stay its Order requiring the disclosure of records during the pendency of this case to avoid the possibility of piecemeal appeals to the D.C. Circuit, and to allow for the orderly and efficient resolution of the issues that remain before this Court." Oversight Committee chairman Darrell Issa (R., Calif.) responds: "Even after a judge issues an order, this Administration continues to pursue a strategy of delay and obstruction against Constitutionally mandated oversight and the principle of transparency. Reckless conduct in a Justice Department operation contributed to the deaths of a Border Patrol agent and countless Mexican citizens, but this Administration continues to fight making a full account of what it knew and when it knew it—not to mention why and how it came to make false statements to Congress about its conduct."
  • National Consumer Law Center report: "analysis of Department of Education documents obtained through its FOIA lawsuit found that in FY2012, the Department consistently failed to take borrowers' complaints and experiences into consideration when evaluating performance of debt collection agencies."

Documents of Note

  • St. Louis Public Radio does the hard work, discovers that Missouri officials used a controversial lethal injection drug after promising they wouldn't. Lawyers for one death row inmate are already asking a court to halt his execution based on the report.
  • The FBI's FOIA logs, courtesy of Jason Leopold. Find all the links to the docs here and here.
  • Via Muckrock, DoD's list of of "significant" FOIA requests, 2009-2014
  • 'MRAPS and Bayonets: What we know about the Pentagon's 1033 program'
  • Daily Caller reporter Alex Pappas says he's getting letters from DHS asking him to confirm that he's still interested in FOIA requests from 2012. this is a common and inappropriate tactic by DHS to try and clear out its backlog. If you're getting similar letters, please send them my way.

Redaction of the Week

From the Freedom of the Press Foundation: 'When Can the FBI Use National Security Letters to Go After Journalists? That’s Classified'

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This week 18F, the federal government's in-house IT shop, dropped some very cool news about its work to modernize the FOIA as part of the Obama administration's second National Action Plan on Open Government.

18F is working to create a clean, user-friendly online FOIA hub to submit requests to the federal government. 18F says it's building tools to:

  • improve the FOIA request submission experience;
  • create a scalable infrastructure for making requests to federal agencies; and
  • make it easier for requesters to find records and other information that have already been made available online.

The coolest part? It's all open-source. Alex Howard writes that this is "the most substantive evidence yet that the Obama administration will indeed modernize the Freedom of Information Act, as the United States committed to doing in its second National Action Plan on Open Government."

"This is a perfect example of 'lean government,' or the application of lean startup principles and agile development to the creation of citizen-centric services in the public sector," Howard writes. "Demonstrating its commitment to developing free and open source software in the open, 18F asked the public to follow the process online at their FOIA software repository on Github, send them feedback or even contribute to the project."

More of this, please.

The Most Transparent Administration in History, an ongoing series

Why did IRS officials wipe Lois Lerner's Blackberry? Via the Washington Post:

[Judicial Watch] suspects that the Blackberry may contain duplicates of communications that were lost when Lerner’s hard drive crashed in 2011.

In response to the judge’s order, a top IRS official said in a signed declaration that the agency has no record of attempting to recover data from the mobile device.

IRS attorney Thomas J. Kane said in a separate declaration that the agency "removed or wiped clean" information from the Blackberry in June 2012, shortly after congressional staffers questioned Lerner about the targeting allegations and in the same month that the IRS inspector general began examining the issue.

Kane offered no explanation for why the IRS "removed or wiped clean" the data, and the IRS did not respond to the same question when asked by The Washington Post on Wednesday.

EVENTS, ETC.

  • New England First Amendment Coalition is offering scholarships to regional reporters for its upcoming three-day training course on FOIA and investigative techniques.
  • Sep. 12: New York County Lawyers Association CLE course on FOIA. Non-member attorneys and law office staff welcome.

Subscribe to CJ Ciaramella's weekly FOIA newsletter here.