FOIA Friday: IRS 'Loses' Emails, Feds Cover-up Stingray Records, and More
CJ Ciaramella
June 20, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
THE IRS IS BAD AT KEEPING RECORDS, WHICH IS NOT TERRIBLY UNUSUAL
Late last Friday, the IRS informed Congress that it had lost a significant amount of emails from Lois Lerner, the former IRS official who resigned amid the IRS targeting scandal, after her computer crashed. The alleged crash has mystified a great many people as to how a public official can just "lose" emails. They're supposed to be backed up. They're federal records, right? The Washington Post has a helpful article that explains what happened: The IRS has a terrible back-up system.
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"Prior to the eruption of the IRS controversy last spring, the IRS had a policy of backing up the data on its email server (which runs Microsoft Outlook) every day. It kept a backup of the records for six months on digital tape [...] After six months, the IRS would reuse those tapes for newer backups."
"Emails considered an 'official record' of the IRS couldn't be deleted and, in fact, needed to also have a hard copy filed [...] The letter sent to the senators suggests that it was up to the user to determine what emails met those standards. It's not clear if Lerner had any hard copies of important emails."
Unfortunately, the story has become mired in the partisan rodeo over the IRS targeting scandal. Republicans have charged ahead with numerous subpoenas and full-throated accusations of malfeasance, while Democrats are pooh-poohing the incident as conservative conspiracy-mongering.
I try not to to stray too far into partisan politics in this space (and in life, as a general rule), but let me just say: It would seem common sense that we should be skeptical whenever a government agency claims it lost federal records. Sure, maybe Lois Lerner's computer crashed and erased thousands of federal records. That's a distinct possibility! On the other hand, remember when the Bush administration lost and miraculously recovered 22 million emails.
If you take anything away from the story, it should be that the federal record keeping system is kind of FUBAR. To that point, here's a statement from Citizens for Responsibility and Ethics in Washington:
“The loss of Ms. Lerner’s emails is just another example of deficient government record keeping. Emails by former Justice Department official and author of the ‘torture’ memos John Yoo disappeared, SEC records regarding the Madoff investigation vanished, and millions of emails from the George W. Bush White House were lost. Where was the outrage in those cases? This issue is bigger than any single government component.”
The Secret to Getting Top-Secret Secrets
Since I started this newsletter, I've gotten a couple emails from people doing FOIA work and wondering how they can step up their game. Well, you could do a lot worse than reading this profile by Jason Fagone, "The Secret to Getting Top-Secret Secrets," on self-described "FOIA terrorist" Jason Leopold. In addition to being a fascinating, well-written feature, there's quite a few nuggets of wisdom about how to use FOIA as a primary source for reporting. The main takeaway: You have to know the law, be very patient and dedicated, and be a little bit crazy.
LAWSUITS
Court rejects ACLU suit for Stingray records: A Florida judge ruled in response to an ACLU lawsuit that records on Stingray cell phone surveillance belong to the feds and are therefore exempt from state public record laws. Here's a statement from the Florida ACLU on Wednesday:
“Today, the court has ordered the federal government to do what it should have been doing all along and share with the state court the documents regarding local police using stingray cell phone tracking devices. It’s disappointing that the court did not go further in dismantling the wall of secrecy that has surrounded the Sarasota Police’s use of cell phone spying devices. When the government goes to such lengths to keep the public in the dark about its warrantless spying on citizens, then the requirement that courts approve of government searches is rendered pointless. Both the federal and local governments need to respect open records laws so the public knows what police are doing in their name.”
Last week, several major news outlets such as the AP and USA Today covered the story. Trevor Timm, writing at the Guardian, has a very nice op-ed on the subject, too. Of course, I would recommend you read my report at VICE. (Never stop hustling, kids.)
After publication, the FBI finally got back to me. Unfortunately, it added nothing new and only directed me to an old statement from an affidavit on why info on Stingray surveillance should be blocked from public release:
"The FBI has, as a matter of policy for over 10 years, protected this specific electronic surveillance equipment and techniques from disclosure, directing its agents that while the product of the identification or location operation can be disclosed, neither details on the equipment's operation nor the tradecraft involved in use of the equipment may be disclosed. The FBI routinely asserts the law enforcement sensitive privilege over cell site simulator equipment because discussion of the capabilities and use of the equipment in court would allow criminal defendants, criminal enterprises, or foreign powers, should they gain access to the items, to determine the FBI's techniques, procedures, limitations, and capabilities in this area. This knowledge could easily lead to the development and employment of countermeasures to FBI tools and investigative techniques by subjects of investigations and completely disarm law enforcement's ability to obtain technology-based surveillance data in criminal investigations."
Meanwhile, MuckRock reports: "After a year and a half of stalling, the Boston Police Department finally replied last month that it has no guidelines for cell phone data retention or sharing, and that virtually all operational documents around cell phone surveillance must be withheld from public release."
The FBI guide to Twitter slang: This story made the rounds all over the Internet this week, but in case you haven't seen it, MuckRock user Jason Smathers obtained the FBI's 83-page guide to Twitter slang, and it's hilarious.
NYT appeals University of Oregon redactions: The University of Oregon's insistence on redacting records about how it responded to serious rape allegations against three of its basketball players is getting it some unwanted attention. All I can say to the UO is have fun dealing with the New York Times Company's lawyers. You earned it.
STATE NEWS
Washington suit challenges terrorism exemption: Newsletter reader Austin Nolen is suing the Washington State Patrol to challenge its use of an anti-terrorism exemption the agency used to deny his request for records on a 2013 May Day protest.
Nolen writes in: "From what I can tell from my conversations with the open government community in WA and from the summary of significant cases put out by the Municipal Research and Services Center, my lawsuit is the first to challenge the use of the terrorism exemption, which is legally only supposed to protect material created 'to prevent, mitigate, or respond to... acts that significantly disrupt the conduct of government or of the general civilian population of the state... and that manifest an extreme indifference to human life, the public disclosure of which would have a substantial likelihood of threatening public safety.'"
If anyone wants a copy of the suit, email and I'll be happy to send it over. In other state news ...
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