This Week in Transparency: The Mosaic Effect

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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.

What we mean when we talk about the 'Mosaic Effect'

Among the many, many issues raised by the fatal police shooting of an unarmed 18-year-old black kid in Ferguson, Missouri this week was police transparency. The Ferguson police initially refused to release the name of the officer who shot the victim, Michael Brown, leading to a national outcry.

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It is one of the peculiarities of police departments that officers are afforded great privacy protections when they are involved in such an incident. Officer safety is cited, which is well and good, but police departments often feel no similar compunction to protect the identity of civilian suspects.

The ACLU threatened to sue the Ferguson police if its public records request was not fulfilled. "If they don't follow through, we will file a lawsuit and hold a press conference," the Missouri ACLU's Diane Balogh told The Huffington Post earlier this week. "There have been other situations where we've actually had to sue the police department because they haven't fulfilled the Sunshine Law requirements."

Ferguson police finally released the name of the officer in a press conference today. But here's some information the police didn't release: a narrative of how the shooting occurred, a use of force report from the police officer, or even how many times Brown was shot.

Meanwhile, the FAA refused to disclose details of why it put a no-fly order around Ferguson earlier this week:

The order says the flight restrictions were put in place “to provide a safe environment for law enforcement activities.” The FAA would not elaborate further on the reason for the St. Louis County Police Department’s request. “If you want it, file a FOIA,” FAA Spokesperson Elizabeth Cory told TIME, in reference to a Freedom of Information Act request.

Combined with the Ferguson police's habit of arresting, tear gassing, and otherwise harassing journalists, the unavoidable impression was the police had something to hide.

Among federal law enforcement and intelligence agencies, there is a justification for withholding documents known as the "mosaic effect." The fear is that, by piecing together enough tiny pieces of information, criminals, terrorists and foreign counterintelligence can gain a working picture of law enforcement and IC activities. From the White House: "The mosaic effect occurs when the information in an individual dataset, in isolation, may not pose a risk of identifying an individual...but when combined with other available information, could pose such risk."

It is a realistic fear, as anyone with a passing knowledge of counterintelligence will tell you, but it is often abused, like most other legitimate reasons for government secrecy. For example, the CIA refuses to disclose any of its contracting information, even for unclassified programs. Via the Washington Post:

The CIA argues that because its unclassified programs are in support of its classified work, reporting on the former inexorably leads to insights about the latter. As the GAO reports in its assessment of the transparency site's 2012 data, a CIA "official added that the agency also does not report unclassified contract information because of the risk that an individual could use it, along with other publicly available information to develop a picture of Central Intelligence Agency requirements."

But in its effort to obscure the bigger picture, government secrecy creates its own, different sort of mosaic—a patchwork quilt of redactions, denials, cover-ups, and all the nasty little things the government wishes to do out of the public eye.

Just browsing through the recent instances this week of government secrecy run amok is enough to start to see the scope of the problem. It ranges from the trivial—"please delete this email," a top HHS official wrote in an ill-advised message—to matters of life and death. The ousted head of Customs and Border Protection's internal affairs division says the agency swept "highly suspect" fatal shootings under the rug.

Or there was this story about how the feds blocked Houston Chronicle investigative reporter Susan Carroll from attending an immigration court hearing that was by law open to the public:

[A]fter Carroll arrived at the security gate, she was told she would not be permitted into the immigration hearing. The initial reason given was that Carroll was attempting to access asylum cases, which are generally closed to the public. However, the open docket immigration court cases scheduled for the day likely included a mix of situations. If an asylum case arose, the immigration judge could and would clear the courtroom.

Carroll sent an ICE spokesman an email: “It’s a master calendar hearing. It is open by law. I confirmed with EOIR. Legally, you need to let me in. I gave two days’ notice I was coming. I am not asking for any asylum information from you. I am not asking for a media tour. I am simply requesting access to a court proceeding that is open under the law.”

They did not grant her access. But the Chronicle was allowed to observe the hearing from Virginia, where the presiding judge was holding court in Artesia via teleconference. The Chronicle (a Hearst paper) sent Hearst Newspapers’ Washington Bureau Chief David McCumber to observe the hearing.*

In a subsequent statement to the Chronicle and also provided to CJR, ICE cited security concerns at the Artesia facility where the immigration court is housed. According to the statement: “For these detention center locations, ICE personnel must be available to ensure appropriate security procedures are followed when escorting visitors at the center.”

“They are essentially insisting that reporters need clearance to get to the courts,” she said. “And I’m arguing, we don’t need clearance. They are open.”

In an email, I asked ICE spokesman Carl Rusnok why the Chronicle was given access in Virginia to what was initially described as a closed-door hearing. In an emailed response, the ICE spokesman said the Virginia hearings are not held within ICE detention facilities. If there was a circular logic for barring press, that answer closed the loop.

Taken altogether, this mosaic of secrecy creates the outline of a picture through negative space, and that picture is not pleasant to behold.

* Redaction art courtesy of Patrick Malone.

Subscribe to CJ Ciaramella's weekly FOIA newsletter here.

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