FOIA Rundown: The Year in Review, Private Prisons, and Stolen Brains

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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.

Regrets the error: My last newsletter referred to "ace blogger Andrew Howard." Mr. Howard's first name is Alex.

Also, while not technically a correction, I forgot to give proper credit to Toby McIntosh, who runs FreedomInfo.org, for all of his comprehensive coverage of the failure of the FOIA bill.

FOIA request of the week: Incident reports regarding stolen brains at the University of Texas.

LAWSUITS

  • Federal judge dismisses ACLU and Oklahoma World news org lawsuit for access to state executions.
  • RCFP representing Tulsa World in new lawsuit against state of Oklahoma for records on botched executions.
  • Jason Leopold and Ryan Shapiro file a Christmas Eve lawsuit against the Justice Department re: the CIA's alleged spying on the Senate Intel Committee.
  • Motion for discovery filed in Leopold suit against NSA for Snowden emails.
  • DoD files memo in support of summary judgement in ACLU lawsuit for Abu Ghraib photos. "Public disclosure of the DoD photos would continue to endanger United States citizens."
  • OK, here's a weird one: Chiquita—yes, the banana company—asks court to shield SEC records of payment to Colombian paramilitary groups.
  • Judicial Watch wins lawsuit for crime scene photos from Phoenix murder case connected to Fast and Furious gun-walking scandal.

The year in review: More FOIA lawsuits were filed against the federal government in 2014 than any year since 2001, according to The FOIA Project. A statistical analysis by the website found 422 FOIA lawsuits were filed against the feds this year, an increase of 50 over 2013. But among our mainstream media, the numbers were less impressive. The Huffington Post reports:

The New York Times was the only "legacy" publication to file any suits against the federal government, and four of its five cases list Washington correspondent Charlie Savage as a co-plaintiff. Among individuals to launch legal action, Vice News' Jason Leopold filed eight suits in 2014; Shane Bauer, a senior reporter at Mother Jones who was detained in Iran, filed two.

The most litigious group in 2014? The conservative watchdog org Judicial Watch, which filed 34 suits as a plaintiff and even more as a counsel.

In an editorial, the Denver Post says FOIA lawsuits is proof of the need for FOIA reform and "speaks to an unmet desire — much of it legitimate — for information.""The incoming Congress would be wise to revisit and pass the FOIA measure so citizens have the right tools to ensure fair access to government records. Republicans who now control both houses like to say they are committed to government accountability. Here is their chance to prove it."

More Year in Review

FOIA reform post-mortem: The Washington Post's Josh Hicks looks at Congress' failure to pass the FOIA Improvement Act of 2014. There's several interesting tidbits in the piece: "According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the 'forseeable harm' requirement as the basis for frequent lawsuits."

Nate Jones at the National Security Archive also has a thorough piece on the inglorious demise of FOIA reform in the 113th Congress, including what comes next for transparency advocates:

How do we overcome these FOIA Januses?  First, we must avoid being stalled out.  We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.”  FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly.  Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains.  Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.”  Both houses should immediately reintroduce the FOIA bill.  More than 440 members who voted for FOIA reform remain in Congress.Second –as absurd as it sounds– open government advocates must find a way to force our representatives to actually pass the bills they vote for. If the 400-plus remaining members who voted for reform to the Freedom of Information Act truly believe in enhancing the public’s access to government information, it should be an easy feat to pass identical, or nearly identical, Freedom of Information Act reform –that is, the bill both houses just unanimously voted yes on– by Sunshine Week, March 2015.  If not, we need to force congresspeople to state the reasons why they object to our access to our own information.

Bill introduced to open up private prisons to FOIA: Mother Jones reports that Rep. Sheila Jackson Lee (D., Tx.) has introduced a bill that would open up private prisons to the FOIA:

If passed, it would force any nonfederal prison holding federal prisoners to comply with the Freedom of Information Act.In 2013, 41,200 federal convicts—19 percent of the entire federal prison population—were housed in private facilities. That year, Corrections Corporation of America, the largest prison contractor in the United States, collected more than $584 million from the federal government.Passing Lee's bill will be difficult, if not impossible. From 2005 to 2012, Democrats (including Lee) introduced five separate bills that aimed to apply FOIA to private prisons. All of them failed. With the GOP—which has been generally friendly to the prison industry—controlling both houses of Congress beginning next year, the new bill will likely meet a similar end.

Meanwhile, Muckrock has an ongoing project to pry records loose from states about private prisons: "So as we go into a new year, MuckRock will continue requesting whatever it can — following contract threads for the due diligence that should have been conducted, asking about which companies are tangentially reaping rewards, and looking to our readers for tips, suggestions, and any advice about the workings of the private corrections industry."

The Education Department is joining a college's appeal of a court order to release info on its handling of a sexual assault case to author Jon Krakauer. From the Student Press Law Center:

Last Friday, the U.S. Department of Education, through legal counsel with the Justice Department, served notice that it would be joining the University of Montana's appeal of a district-court order requiring the disclosure of public records about how the university system handed a star football player's disciplinary appeal in a sexual assault case.Despite the Obama administration's lip service to improving the transparency of how colleges deal with sexual assault, at the first opportunity to put that resolve to the test, the federal government is throwing its weight behind continued concealment.Today, the SPLC sent a letter to Education Secretary Arne Duncan urging him to pull the plug on this misguided use of federal resources. As the letter points out, the Department rarely intercedes in legal disputes involving FERPA and access to public records -- and has never done so on the side of disclosure -- and to decide that this case merits an exception to the Department's normal practice of abstention is, to say the least, tone-deaf.

Police body cams: Police departments across the country are rapidly expanding their use of body cams, but are their transparency policies keeping pace? ACLU paralegal Sonia Roubini investigates:

So are police departments putting good policies in place? In October, I tried to find out. I called and emailed the twenty largest Police Departments in the country, as well as a random sampling of an additional ten departments that attended the Police Executive Research Forum (PERF) conference in September, 2013 on best practices in the use of body cameras. Specifically, I sought information on which departments are using body cameras and on whether the departments’ policies are readily available to the public. My aim was to use this information to analyze the relative merits of each policy.Only five of these thirty departments sent me their policies. The remaining twenty-five cited various reasons for not doing so: one department told me that they couldn’t share their policy as it was still in draft form; four reported having no policy; and four required a more formalized public records request in order to access the policy. The remaining sixteen departments either responded stating categorical unwillingness to send their policy, or simply did not respond. It’s also worth mentioning that of the five policies that we did receive, only one was publicly available on the police department’s website.

Meanwhile, the Los Angeles Times reports that the LAPD footage from the roughly 7,000 body cams it is deploying will not be subject to public records requests and will only be released in criminal and civil court proceedings.

TechDirt responds:

And there goes the accountability. It's likely this move was prompted by certain activists in other cities who have placed FOIA requests for all body cam footage in perpetuity. This is an understandable reaction, but there is a middle ground that doesn't seem to have been contemplated. Limitations could be amended into local Freedom of Information statutes that would prevent overly-broad requests such as these. (And, of course, this too has the potential for abuse...) 

As it stands now, body cam footage will only be viewed in a courtroom. This provides for almostzero accountability. The deployment of 7,000 body cams loses its deterrent effect if officers know that footage won't be seen unless it's showing their side of the story (criminal cases) or working against them in civil suits. Civil suits obviously aren't a deterrent, considering how many have been filed, how often settlements have been paid and how often officers are granted at minimum partial immunity in civil cases. 

STATE NEWS

  • DC Open Gov Coalition president talks about incoming city administrator's transparency goals for 2014.
  • San Diego city attorney releases more docs on city's use of Stingray cell-phone tracking technology.
  • Ohio court urges lawmakers to defend freedom of the press.
  • Saratoga Sheriff stonewalling records request for arrest of head-slapping deputy.

Subscribe to CJ Ciaramella's weekly FOIA newsletter here.

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