This Week in Transparency: Holder's legacy, Stingrays, and more
CJ Ciaramella
September 26, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
Holder resigns: You probably heard the news that Attorney General Eric Holder announced his resignation yesterday. Holder will leave behind a historic legacy on many issues, but unfortunately his record on the Freedom of Information Act and press freedoms will not be counted among the bright spots in his long career.
Holder presided over the secret subpoena of journalists' phone and email records. He presided over the prosecution of whistleblowers and leakers under the Espionage Act—more than any other administration in history. His Justice Department continues to seek to compel New York Times reporter James Risen to reveal his sources under threat of contempt of court. All of this has contributed to a very real chilling effect on national security reporting.
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On the FOIA front, when President Obama swept into office, Holder issued a memorandum instructing all federal agencies that, "In the face of doubt, openness prevails," etc, etc. But Holder's DOJ never showed much interest in enforcing that directive. There were some improvements, but by and large FOIA offices continued to operate according to their own whims. And DOJ rubberstamped those agencies' frivolous redactions and withholdings, forced requestors to sue as a matter of practice, and dragged out court proceedings to the annoyance of judges and plaintiffs.
This tweet from the AP's investigative team editor about sums it up:
Now the question becomes: Will his successor be any better? Of course, if certain statutory changes were passed—say maybe the FOIA Improvement Act or the federal shield law bill that are both sitting in Congress awaiting action—this wouldn't be as pressing of a question for transparency advocates, but here we are.
LAWSUITS
It's FOIA Magic Week: This week is the last before the close of the fiscal year on Oct. 1, which means federal agencies are hustling along, trying to close out old and overdue FOIA requests. So if you've been suddenly getting attentive notes and calls regarding years-old FOIA requests, that's why.
Stingrays Muckrock's investigation of how federal and state agencies use Stingray cell phone surveillance technology has also got its handsnbsp;on one of the non-disclosure agreements through a FOI request. According the paper, " Police officials said they do not keep or collect data from the device. They also said it is only deployed with a judge’s permission, which they say has happened 179 times from January 2009 through June this year."
Meanwhile, a Chicago activist is suing the Chicago Police Department for records on how the PD uses the technology.
Forest Service walks back anti-media rule: The U.S. Forest Service first defended, then walked back, a new rule to be finalized in November that would require journalists to shell out $1,500 to shoot video, even on a smartphone, in public wilderness areas. In an initial interview with the Oregonian, a Forest Service spokeswoman said the rule included an exception for breaking news or "reporting that was in support of wilderness characteristics."
After a wave of protest from professional news associations, the Forest Service said the new rule would only apply to commercial filming. From WTOP:
The rule would apply to commercial filming, like a movie production, but reporters and news organizations would not need to get a permit to shoot video or photographs in the nation's wilderness areas, Forest Service Chief Tom Tidwell said in a phone interview Thursday.
"The U.S. Forest Service remains committed to the First Amendment," he said, adding: "It does not infringe in any way on First Amendment rights. It does not apply to news-gathering activities, and that includes any part of news."
The most transparent administration in history, an ongoing series
Last week's criticism of the Obama administration's handling of FOIA requests by the AP caused a bit of a stir. At the Washington Post, media reporter Erik Wemple asked Health and Human Services about the AP's accusation that political appointees were handling FOIA requests. “That is categorically false,” HHS spokesman Kevin Griffis said.
Wemple notes that HHS Acting Assistant Secretary for Public Affairs Dori Salcido, a politico appointee, is listed as the agency's chief FOIA officer. However, an HHS official told him that a  career staffer at the HHS public affairs office now signs off on FOIA appeals decisions and Salcido isn’t involved in day-to-day FOIA processing.
AP spokesman Paul Colford responded:
AP has had to deal directly with Ms. Salcido on some FOIA-related matters. She is identified on some HHS responses to AP’s own FOIA requests as the FOIA administrative appeals officer, meaning that she is the last line of defense for reporters to argue their case. Moreover, we’ve talked to Ms. Salcido on FOIA-related issues. In one instance last year, as deputy assistant secretary for public affairs (Media), she would adjudicate our administrative appeal of an HHS decision – that’s what we were told in a letter.
Meanwhile, the Washington Post reports that the White House sometimes demands changes to White House press pool stories. Here's one instance with the Post's David Nakamura:
During the same trip, then-deputy press secretary Josh Earnest flagged another of Nakamura’s reports. This one contained a comment juxtaposing a speech Obama had given two days earlier lauding freedom of the press with the administration’s decision to limit access to presidential photo ops on the trip.
Earnest, who succeeded Carney as press secretary in May, considered Nakamura’s comparison unfair and asked him to take it out, according to Nakamura. After an argument, the reporter acquiesced.
Lotta this going around lately: Mother Jones reports that New Mexico Gov. Susana Martinez can't find any of her old emails, and the backup tapes have been wiped clean. On a totally unrelated and coincidental note, investigators are searching for her old emails.
Not sure what's going on here, but it's our FOIA response of the week, courtesy of Reuters reporter Gabriel Debenedetti:
Private Prisons: Another Muckrock investigation, 'Private prison grievances go unread and unanswered.'
Silliness: This is what happens when you FOIA intelligence agencies for records on Yo, the year's dumbest smartphone app.
Silliness, Cont.: The editors of the CIA's in-house journal wrote a snarky guide to intelligence analyst clichés.
2016 is going to be fun: A Clinton Global Initiative press aide follows a NYT reporter into the bathroom and waits outside the stall. Erik Wemple, unburdened by the New York Times' headline style, went with the more forthright description: 'Clinton Inc. imposes bush-league security totalitarianism on reporters.'
STATE NEWS
Alabama judge drops prior restraint case against newspaper:  An Alabama judge lifted  a temporary restraining order against a local newspaper and USA TODAY, allowing them to publish documents on crude oil pipelines in the state. The oil company had asked the judge to block the papers from publishing the data, which they had obtained through a public records request, arguing that revealing such infrastructure details constituted a national security risk.
"In its motion for a temporary restraining order, the plaintiff raised the danger of terrorism and sabotage if data within its Distribution Integrity Management Plan were publicly disclosed," the judge wrote in his order. "While such possibilities might exist, they now appear to be only vague phantoms. On reflection, the court finds that it too readily focused on such ghosts in entering the Temporary Restraining Order sought by the plaintiff."
There have been many similar instances this year of state governments and oil companies acting to block public release of information on rail shipments of crude oil and pipeline data, but this was the first time to my knowledge that a gas company has attempted to invoke prior restraint, which, as we all know, the Supreme Court has roundly rejected.
Streisand Effect spotted in West Virginia: West Virginia A.G. Patrick Morrisey is not taking a FOI lawsuit against him well, the Charlestown Gazette reports:
In August, the Gazette sued Morrisey for refusing the release documents about his role in his office’s ongoing case against an out-of-state drug company, Cardinal Health, which his wife lobbies for in Washington, D.C. The newspaper requested the records under the state Freedom of Information Act.
In a filing this week, Morrisey’s office alleges that the newspaper’s lawsuit is “meritless” and a “waste of this court’s time.”
Morrisey’s response — written by Deputy Attorney General Misha Tseytlin — also alleges that the Gazette has targeted Morrisey because the newspaper “disagrees with the voters’ decision to elect him” in November 2012.
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