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March 24, 2021 News » Cover Story

The Foilies 2021 

A down and dirty dozen in government transparency

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Compiled by the Electronic Frontier Foundation and MuckRock News
Illustrations by Caitlyn Crites

The day after the 2021 inauguration, Sen. Chris Murphy, D-Connecticut, took to Twitter to declare: "Biden is making transparency cool again."

This was a head-scratcher for many journalists and transparency advocates. Freedom of Information—the concept that government documents belong to and must be accessible to the people—has never not been cool. Using federal and local public records laws, a single individual can uncover everything from war crimes to health code violations at the local taqueria. How awesome is that?

If you need more proof: there was an Australian comic book series called Southern Squadron: Freedom of Information Act; the classic anime Evangelion has a Freedom of Information Act cameo; and the Leeds-based post-punk Mush received 7.4 stars from Pitchfork for its latest album "Lines Redacted."

OK, now that we've put that down in writing we realize that the line between "cool" and "nerdy" might be a little blurry. But you know what definitely is not cool? Denying the public's right to know. In fact, it suuucks.

Since 2015, The Foilies have served as an annual opportunity to name-and-shame the uncoolest government agencies and officials who have stood in the way of public access. We collect the most outrageous and ridiculous stories from around the country from journalists, activists, academics and everyday folk who have filed public records and experienced retaliation, over-redactions, exorbitant fees and other transparency malpractice. We publish this rogues' gallery as a faux awards program as part of Sunshine Week, the annual celebration of open government organized by the News Leaders Association, which was just observed March 14-20, 2021.

In 2021, the Electronic Frontier Foundation published The Foilies in partnership with MuckRock News, a nonprofit dedicated to building a community of cool kids that file Freedom of Information Act (FOIA) and local public records requests. But note that this "down and dirty dozen" is just the tip of the iceberg. For an unabridged version of this year's Foilies "winners", visit: eff.org/deeplinks/2021/03/foilies-2021

And for previous year's dubious winners (many of whom are repeat offenders) check out the archive at eff.org/issues/foilies. And without further ado...

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1. The Power of the Tweet Award
President Donald J. Trump

Secrecy nerds know that classification authority—the power to essentially mark some documents as secrets exempt from disclosure—resides with and is largely at the discretion of the president, who can then designate that authority as needed to agency personnel. So, one expected upside of a loose-lipped president with an undisciplined social media habit was the ability to use the Tweeter-in-Chief's posts to target otherwise inaccessible FOIA requests.

Case in point: Trump's Oct. 6, 2020, tweet: "I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!"

Hard to argue there's ambiguity there. But when BuzzFeed News' Jason Leopold flagged that order in his ongoing lawsuit for the materials, that's just what the Department of Justice did. DOJ lawyers told the court the posts "were not self-executing declassification orders and do not require the declassification of any particular documents."

The court ultimately bought the argument that you can't take what the then-president tweets too seriously, but Trump declassified other materials related to the FBI's investigation ... on his last day in office.

2. The Most Expensive Cover-up Award
Small Business Administration

In the early weeks of the pandemic, the Small Business Administration (SBA) awarded millions of dollars to small businesses through new COVID-related relief programs—but didn't make public the names of recipients. When major news organizations including ProPublica, the Washington Post, and The New York Times filed public records requests to learn exactly where that money had gone, the SBA dragged its feet, and then—after the news organizations sued—tried to withhold the information under FOIA exemptions 4 and 6, for confidential and private information. A court rejected both claims and also forced the government to cough up more than $120,000 in fees to the news organizations' lawyers.

3. The Secret COVID Statistics Award
North Carolina Department of Health and Human Services

Seeking a better understanding of the toll of COVID-19 in the early days of the pandemic, journalists in North Carolina requested copies of death certificates from local county health departments. Within days, officials from the state Department of Health and Human Services reached out to county offices with guidance not to provide the requested records—without citing any legal justification whatsoever. DHHS did not respond to reporters' questions about why it issued that guidance or how it was justified.

Some local agencies followed the guidance and withheld records, some responded speedily, and some turned them over begrudgingly—emphasis on the grudge.

"I will be making everyone in Iredell County aware through various means available; that you are wanting all these death records with their loved ones' private information!" one county official wrote to The News and Observer reporters in an email. "As an elected official, it is relevant the public be aware of how you are trying to bully the county into just giving you info from private citizens because you think you deserve it."

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4. The Pharaoh Prize for Deadline Extensions
Chicago Mayor Lori Lightfoot

With COVID-19 affecting all levels of government operations, many transparency advocates and journalists were willing to accept some delays in responding to public records requests. However, some government officials were quick to use the pandemic as an excuse to ignore transparency laws altogether. Taking the prize this year is Mayor Lori Lightfoot of Chicago, who invoked the Old Testament in an effort to lobby the Illinois Attorney General to suspend FOIA deadlines altogether.

"I want to ask the average Chicagoan: Would you like them to do their job or would you like them to be pulled off to do FOIA requests?" Lightfoot said in April 2020, according to the Chicago Tribune, implying that epidemiologists and physicians are also the same people processing public records (they're not).

She continued: "I think for those people who are scared to death about this virus, who are worried every single day that it's going to come to their doorstep, and I'm mindful of the fact that we're in the Pesach season, the angel of death that we all talk about is the Passover story, that angel of death is right here in our midst every single day."

We'd just note that transparency is crucial to ensuring that the government's response to COVID is both effective and equitable. And if ancient Egyptians had the power to FOIA the Pharaoh for communications with Moses and Aaron, perhaps they probably would have avoided all 10 plagues—blood, frogs and all.

5. The Doxxer Prize
Forensic Examiner Colin Fagan

In July 2020, surveillance researcher and Princeton Ph.D. student Shreyas Gandlur sued the Chicago Police Department to get copies of an electronic guide on police technology regularly received via email by law enforcement officers around the country. The author of the guide, Colin Fagan, a retired cop from Oregon, did not agree that the public has a right to know how cops are being trained, and he decided to make it personal. In a final message to his subscribers announcing he was discontinuing the "Law Enforcement Technology Investigations Resource Guide," Fagan ranted about Gandlur for "attacking the best efforts of federal, state and local law enforcement to use effective legal processes to save innocent victims of horrible crimes and hold their perpetrators accountable."

Fagan included a photo of Gandlur, his email addresses and urged his readers to recruit crime victims to contact him "and let him know how he could better apply his talents"—one of the most blatant cases of retaliation we've seen in the history of the Foilies. Fagan has since rebounded, turning his email newsletter into a "law enforcement restricted site."

6. The Government Retribution Award
City of Portland, Oregon

People seeking public records all too often have to sue the government to get a response to their records requests. But in an unusual turnaround, when attorney and activist Alan Kessler requested records from the City of Portland related to text messages on government phones, the government retaliated by suing him and demanding that he turn over copies of his own phone messages. Among other things, the city specifically demanded that Kessler hand over all Signal, WhatsApp, email, and text messages having to do with Portland police violence, the Portland police in general and the Portland protests.

Runner up: Reporter CJ Ciaramella requested records from the Washington State Department of Corrections about Michael Forest Reinoehl, who was killed by a joint U.S. Marshals task force. The Washington DOC apparently planned to produce the records—but before it could, the Thurston County Sheriff's Department sued Ciaramella and the agency to stop the records from being disclosed.

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7. The Cat Face Filter Award
Federal Bureau of Prisons

Kids these days—overlaying cat faces on their videos and showing the Bureau of Prisons how it should redact media sought by FOIA requesters. That was the message from an incredulous federal appeals court in March 2020 after the BOP claimed it lacked the ability to blur out or otherwise redact faces (such as those of prisoners and guards) from surveillance videos sought through FOIA by an inmate who was stabbed with a screwdriver in a prison dining hall.

The court wrote: "The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans." The judge made clear that although "we do not necessarily advocate that specific technique," the BOP's learned helplessness to redact video footage is completely .

8. The Save the Children (in a Hidden Folder) Award
Louisville Metropolitan Police Department, Kentucky

The Louisville Metropolitan Police Department's Explorer Scouts program was supposed to give teenagers a chance to learn more about careers in law enforcement. For two LMPD officers, though, it became an opportunity for sexual abuse. When reporters asked for more information on the perpetrators, the city chose to respond with further absurdity—by destroying its records. The case against the city and the Boy Scouts of America is scheduled to begin in April.

The Courier-Journal in Louisville first asked LMPD in mid-2019 for all records regarding the two officers' sexual abuse of minors. Louisville city claimed it didn't have any; they had been turned over to the FBI. Then the Courier-Journal appealed, and the city eventually determined that they'd found a "hidden folder" still containing the responsive records—738,000 of them, actually. Not for long, though. Less than a month later, they'd all been deleted, despite the ongoing request, a casualty of the city's automated backup and deletion system, according to Louisville city.

At the end of 2020, the Courier-Journal was still fighting the city's failure to comply with the Kentucky Open Records Act. "I have practiced open records law since the law was enacted 45 years ago, and I have never seen anything so brazen," said Courier-Journal attorney Jon Fleischaker told the paper. "I think it an outrage."

9. The Eric Cartman Respect My Authoritah Award
Haskell Indian Nations University, Kansas

When Jared Nally, editor-in-chief of the Indian Leader, the student newspaper at Haskell Indian Nations University in Lawrence, Kansas, started putting questions to his school's administration and sending records requests to the local police department, he got a lot more than he expected: A directive from his school's president demanding he cease his requests in the name of the student paper and henceforth treat officials with proper respect, lest he face disciplinary action.

"Your behavior has discredited you and this university," Haskell Indian Nations University President Ronald Graham wrote. "You have compromised your credibility within the community and, more importantly, you have brought yourself, The Indian Leader, Haskell and me unwarranted attention."

Graham's aggressive tactics against the college junior quickly rallied support for the student journalist, with the Native American Journalists Association, Foundation for Individual Rights in Education and Student Press Law Center all calling for the formal directive to be rescinded. The school ultimately did back down, but the efforts left Nally shocked. "As a student journalist, I'd only been doing it for a year," he told Poynter in an interview. "When somebody in authority says things like that about you, it really does take a hit. ... I'd say I'm recovering from the gaslighting effects—and feeling like what I'm doing really is every bit a part of journalism."

10. The 30 Days of Night Award
Hamilton County, Tennessee

It's hard to imagine a more benign request than asking for copies of other public records requests, but that's exactly what got Hamilton County officials in Tennessee so spooked they started a mass purge of documents. The shred-a-thon started after Chattanooga Times Free Press reporter Sarah Grace Taylor requested to examine the requests to see if the county's policies for releasing materials were arbitrary. Originally, the county asked for $717 for about 1,500 pages of records, which Taylor declined to pay in favor of inspecting the records herself.

But as negotiations to view the records commenced, records coordinator Dana Beltramo requested and received permission to update their retention policy to just 30 days for records requests. After Taylor's continued reporting on the issue sparked an outcry, the county revised its policy once again and promised to do better. "What we did today was basically try to prevent the confusion of mistakes that have happened from happening again," said Hamilton County Mayor Jim Coppinger. In other words, it's all just a big misunderstanding.

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11. The Handcuffs and Prior Restraints Award
Chicago Police Department and City of Chicago

In February 2019, a swarm of Chicago police officers raided the wrong apartment with their guns drawn. They handcuffed the resident, Anjanette Young, who was completely undressed, and they refused to let her put on clothes as she pleaded with them dozens of times that they had the wrong house. Young sued the city in federal court and filed a request for body camera footage of the officers who invaded her home. The local CBS affiliate, CBS 2, also requested the body camera footage.

The Chicago Police Department denied both requests, despite a binding ruling just months earlier that CPD was required to turn over body camera footage to people like Young who were involved in the recorded events. Young ultimately got the footage as part of her lawsuit, and her attorney provided them to the media. The city's lawyers then took the extraordinary step of asking the court to order CBS 2 not to air the video, a demand to censor speech before it occurs called a "prior restraint." The judge denied the city's request.

The city also sought sanctions against Young's attorney, but the city withdrew its motion and Chicago Mayor Lori Lightfoot called the request "ill-advised" in a letter to the court. The judge decided not to sanction Young's attorney.

12. The Self-Serving Secrecy Award
Niagara County, New York

Money talks. The New York Legislature knew this when it passed the Ethics in Government Act in 1987, which required, among other public transparency measures, elected officials in 50,000 person-plus municipalities to complete financial disclosure forms each year.

Sixty-one of New York's 62 counties generally accepted that the disclosure forms, created for public use in the first place, were meant to be disclosed, according to the New York Coalition for Open Government. Back in 1996, though, while everyone was presumably distracted watching the Yankees or Independence Day, Niagara County found a quick trick to keep from sharing its officials' finances: They made it illegal. By local ordinance, the records were made secret, and the county proceeded to reject any requests for access by claiming that releasing the information would be a violation of the law.

This local law prohibiting access was itself, of course, a violation of the law, but Niagara County managed to keep it on the books for more than two decades, and it may have gotten away with it had it not been for the work of the New York Coalition for Open Government.

In February 2020, the NYCOG, represented by the University at Buffalo School of Law Civil Rights & Transparency Clinic, sued Niagara County, alleging its ordinance was unlawful (because it was). This past fall, a court agreed. Five months later, in January 2021, the county began releasing records, ones that should have been available for the last 30+ years.

The Foilies were compiled by Electronic Frontier Foundation director of investigations Dave Maass, senior staff attorney Aaron Mackey, and Frank Stanton Fellow Naomi Gilens, and MuckRock News co-founder Michael Morisy and senior reporter and projects editor Beryl Lipton, with further writing and editing by Shawn Musgrave. Illustrations are by EFF designer Caitlyn Crites. Creative Commons—Attribution—EFF/Muckrock News.

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