This Week in Transparency: Ferguson and GITMO Force-Feeding
CJ Ciaramella
August 23, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
FOIAs of the week: There's a quote about geography—via my old friend and GIS ninja Lyzi Diamond—that's stuck with me for a long time and might as well apply to FOIA sleuthing: "There are a million ways to refine information in search of perfect enlightenment."
With that in mind, check out the way investigative journalist Jason Leopold uses FOIA data to get unique angles on stories. For example, this week he discovered that the U.S. government spent $300,000 on liquid dietary supplements to force-feed Gitmo inmates. "Nearly half the money — $142,345 — was spent on 3,875 cases of vanilla Ensure."
On the sillier end of things, E&E; News delved into potty problems at the EPA's regional Denver office: "The Denver office -- the butt of jokes when feces was found in a hallway earlier this year -- has been beset by roughly a dozen suspected instances of restroom shenanigans since late 2013, according to emails, memorandums and incident reports. Hundreds of pages of EPA records produced under the Freedom of Information Act (FOIA) show agency managers have investigated the incidents and tried to calm employees' nerves." The FOIA documents included a picture of a clogged toilet.
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Ferguson
Redaction of the week: Courtesy of Patrick O'Neill, the list of military weapons given to the Cambridge police:
LAWSUITS
There's another ongoing FOIA suit against the TSA brought by a man with a rare medical condition. TSA agents repeatedly confiscated necessary liquids from him, despite clear directives to accommodate such medical conditions. The man, Sai, filed numerous FOIA requests for information on his abuse at the fumbling hands of the TSA, which were of course ignored. The blog Papers, Please has a thorough rundown of the case so far. Here's an excerpt:
Until recently, the issues in Sai v. TSA were limited to the TSA’s non-response to Sai’s requests, and its bad faith in failing to respond and in lying to the court about what it had done. Mostly, the TSA has fought to avoid having to make any substantive response to either the factual or legal allegations in Sai’s complaint.
The TSA filed a sworn declaration from an allegedly knowledgeable official denying having received or having any record of one of Sai’s FOIA requests, despite having sent Sai what appeared to be an email acknowledgement of the request and having received another copy of the request in the course of the litigation. After placing this essential factual issue in dispute, the TSA requested a “protective order” against any discovery or depositions related to this or any other factual issue, on the grounds that discovery is “ordinarily” unnecessary in FOIA (although not so much Privacy Act) litigation because the facts aren’t usually disputed, only the legal questions of the applicability of exemptions once they have been claimed. The judge hearing the case has deferred ruling on discovery and depositions until the TSA files its initial answer to the complaint, although Sai has requested reconsideration of that ruling[...]
This month, just days before the TSA’s answer to Sai’s complaint was due, the agency finally provided its first partial responses to some of Sai’s requests, including its first claims that some of the information Sai has been requesting is exempt from disclosure as SSI.
If you'll recall, a fired TSA whistleblower testified before the House Oversight Committee earlier this year that the agency's "front office" (AKA political appointees) placed considerable pressure on staff to classify embarrassing or undesirable info as SSI.
The CIA is bad at hiding why it wants to hide things from you: After the National Security Archive found out the CIA was secretly trying price the public out of submitting Mandatory Declassification Review requests, it naturally filed a FOIA for “emails, memos, position papers, power point presentations, and reports” on the decision. Would you be surprised if I told you that the CIA cited national security to withhold unclassified documents on its efforts to block the public from challenging classification? From the NSA's Nate Jones:
The Agency responded that an unspecified amount of “material” was located and withheld under an (illegally) unspecified b(3) statute and under the b(5) “withhold it because you want to” predecisional exemption.
Of course, we appealed. Then, this week we got another bizarre response from the Agency. The Agency stated that litigation about the documents by another party had concluded. Strangely, the Agency also changed the justification it used to withhold the documents from b(3) and b(5) (predecisional) to b(3) and b(1) (National Security)!
Now, I'm just a simple country lawyer (I'm not a lawyer), but last time I checked the government couldn't just switch all willy-nilly which exemptions it was applying after its initial determination. "[O]n judicial review, the agency must stand on whatever reasons for denial it gave in the administrative proceeding." Friends of the Coast Fork v. U.S. Dept. of the Interior, 110 F.3d 53, 55 (9th. Cir 1997). But I'll leave that to you big-city folks and your high-fallutin' ways. [Fans self, sticks hand in vest pocket.]
CIA FOIA guide: The CIA's helpful tips and training procedures for new FOIA officers.
Should Contractor FOIA Objections be Labeled? The Project on Government Oversight's Scott Amey drops the mic:
I understand the need to protect some contract information, but I often think that the government rubber stamps the contractor’s desires and redacts more information than it should. Recently, POGO wrote about unjustified redactions in a Pentagon Inspector General (IG) audit report. The IG cited exemption (b)(4) to redact information that clearly is not privileged or confidential, and it might make you wonder if any of those redactions were demanded by the contractor—Alenia North America—during a 12600 review.
You can stop wondering.
In an email to POGO, the DoD IG confirmed that Alenia reviewed the report, objected to information being released, and that as a result the IG redacted the information from the report. The IG stated that:
"The FOIA Office does not make determinations in advance regarding whether or not a document contains company proprietary information. We always consult with the submitter and rely on them to provide a sounds basis, in accordance with Exemption 4, as to why the information should be redacted."
The government should be required to inform FOIA requesters when a 12600 review was conducted and to label as “12600” any information that was redacted subsequent to that review (although, based on the DoD IG’s process, I’m assuming that any (b)(4) redactions are based on company objections because the government doesn’t make determinations about what is commercial proprietary). It might be too late to get a change into the FOIA Improvement Act, but the Office of Information Policy (OIP) at the Department of Justice—the agency responsible for encouraging agency compliance with FOIA—could change regulations to require a specific notation that the objection was made pursuant to 12600. In addition, an OIP audit of the 12600 process might help the public feel more confident that the system remains tilted toward openness and not hiding information at the suggestion of someone with something to hide.
The public deserves to know who objected to the release of information, especially if it was a non-governmental entity.
And to the employee in CACI’s general counsel office who, years ago, offered me dinner if I could prove that companies request information to be withheld from the public and that the government rubber stamps that request, I would like to go to Marcel’s. I’m hungry.
Society of Environmental Journalists: EPA muzzles advisory board scientists.
The Most Transparent Administration in History, an Ongoing Series
From my article last week at VICE: It was one of those frequent but still oddly satisfying moments when the duplicity of the executive branch of the US government is on full display
In a televised address from Martha’s Vineyard Thursday, President Obama declared that “police should not be bullying or arresting journalists who are just trying to do their jobs.” He was referring to the arrest of two reporters Wednesday night in Missouri by the paramilitary clown brigade known as the Ferguson Police Department.
At almost exactly the same moment as Obama’s address, embattled New York Times journalist James Risen and several leading press freedom groups were pleading with the Justice Department to drop its years-long crusade to force Risen to reveal his confidential sources under threat of jail time.
Speaking at the National Press Club in DC, Risen called on the Obama administration to drop its case against him— assuming it has any respect whatsoever for the First Amendment.
“The Justice Department and the Obama administration are the ones who turned this really into a fundamental fight over press freedom in their appeal to the Fourth Circuit,” Risen said. “I’m happy to carry on the fight, but it wasn’t really me who started it.”
Biden stonewalled FOIA request: According to Ron Kessler's juicy new book on the Secret Service, Joe Biden's staff stepped in to stonewall Kessler's FOIA request to the Air Force for travel expenses related to Biden's use of Air Force Two. I've filed a FOIA for the processing notes to Kessler's request.
STATE NEWS
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