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This marks the 10th anniversary of the Foilies – awards given to the public agencies responsible for the most egregious, absurd and outrageous defiance of freedom of information requests:
The Foilies are awarded by EFF and Muckrock. This year's honorees are an entire Coen Brothers movie's worth of bizarre excuses and shenanigans. Top honors (the "Not-So-Magic-Word" award) goes to Augusta County, VA:
The staff at the Augusta County Sheriff's office somehow got the impression that if they wants to make an official communique immune to a public records request, all they had to do was add the words "NO FOIA" to the memo.
Needless to say, the law doesn't work this way. When a county employee anonymously tipped Breaking the News off to this practice, the organization quite naturally filed a request for every county document containing the phrase "NO FOIA." Given that the county's employees had thoughtfully tagged every document they suspected would get them into trouble with these words, it's no wonder that the request delivered a bumper-crop of news stories of incompetence and corruption:
These scandals come from just 140 of the 1,212 "NO FOIA" emails the county admits it has on hand – the remainder have been illegally withheld. Breaking Through News and The Augusta Press sued the county for the remaining emails and won – though the county has indicated that it might waste public funds appealing the decision:
There are so many great – by which I mean terrible – stories in this year's Foilies that it's hard to pick just a few to highlight, but boy oh boy, does the Chesterfield, Virginia Police have a doozy this year:
The police of Chesterfield County, VA claim that the names of every police officer on the force should be kept secret, because one or more of those cops might someday work undercover. As EFF writes, "It’s not at all dystopian to claim that a public law enforcement agency needs to have secret police!"
Now, I don't want to give you the impression that all this nonsense stems from small-town-Deputy-Dawg-Barney-Fife-type dimwits with harebrained schemes. Big, important statewide offices are also in the mix. Take Arkansas governor Sarah Huckabee Sanders, who spends millions in public funds for her family to travel around America accompanied by an Arkansas State Police detail:
Governor Huckabee Sanders's relentless waste of public funds generated a steady, humiliating drumbeat of news coverage. This made the governor both sad and angry, prompting her to attempt to block FOIA requests for her travel spending, and when that failed, to call a special session of the legislature to enact sweeping limitations on Arkansas's sunshine law:
The governor's farcical wish-list of anti-transparency measures didn't just put severe limits on the disclosure of her use of public funds. It also contained a raft of administrative changes, like an end to the practice of FOIA plaintiffs being able to recover their legal fees if they successfully sued the government for illegally suppressing disclosures.
In the end, Governor Huckabee Sanders was defeated – a torrent of opposition to the bill removed its most odious clauses, though, as EFF notes, it's a near-certainty that Huckabee Sanders will try again in the next legislative session.
The military got in on the act this year, too: the USAF's FOIA portal was altered so that filers had to swear that their request pertained to "clearly releasable" records – then failed to define "clearly releasable." After a PR fiasco, they walked the changes back:
Now: on to Wyoming! Wye not? Democracy may "die in darkness," but culture war bullshit thrives in the absence of sunshine. When (former) Wyoming Superintendent of Public Instruction Brian Schroeder and Wyoming Department of Education Chief Communications Officer Linda Finnerty decided to waste public money on an private "Stop the Sexualization of Our Children" event, they correctly judged that secrecy would be key to pulling off the scam:
When Wyomingans sought details about the pro-censorship event, Schroeder and Finnerty manufactured "misleading statements" about the event and its funding:
Schroeder also illegally withheld his text messages from a public records request, ignoring state's attorneys' advice (instead, Schroeder took bad legal advice from his friend, a private attorney named Drake Hill, who told him he didn't have to follow the law):
The resulting lawsuit turned up 1,500+ texts and emails – enough damning evidence to discredit Schroeder and Finnerty, and to set important new precedent for sunshine laws in the cowboy state:
When you can't dazzle them with brilliance, baffle them with bills. That's the strategy of both the Baltimore Police Department and the Richmond, Virginia Police Department. Baltimore's cops told Open Justice Baltimore that they would need to hand over one miiiiilion dollars if they wanted to see the department's use-of-force records. The Baltimore PD argued that the public interest fee waiver didn't apply to use-of-force records, because there was no public interest in knowing about how the only people in the state legally allowed to hit, kick, choke and shoot other people used force:
Baltimore police eventually dropped the ask to a mere $245k, which a court totally rejected, saying it contributed to the impression that the BPD had "something to hide":
Meanwhile, back in Virginia, the Richmond police told Open Oversight VA that they would have to pay $7,873.14 for a copy of the police's 151-item list of procedures – $52.14/hour for a pre-release review of each of those procedures (most police departments just post their procedures to their websites):
I opened this highlight reel in Virginia, and that's a good place to stop it. I hope you'll go read the rest, I've barely scratched the surface. And once you've read these all, I hope you'll try it for yourself!
As EFF and Muckrock say:
It's easy to feel powerless in these times, as local newsrooms close, and elected officials embrace disinformation as a standard political tool. But here's what you can do, and we promise it'll make you feel better: Pick a local agency—it could be a city council, a sheriff's office or state department of natural resources—and send them an email demanding their public record-request log, or any other record showing what requests they receive, how long it took them to respond, whether they turned over records, and how much they charged the requester for copies.
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If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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The American Library Association’s (ALA) Washington Office invites nominations for the 2018 James Madison Award.
The American Library Association’s (ALA) Washington Office invites nominations for its James Madison Award. The award recognizes an individual or group who has championed, protected, or promoted public access to government information and the public’s right to know at the national level.
Submit your nominations to the ALA Washington Office, care of Gavin Baker, no later than January 19, 2018. Please include a brief statement (maximum one page) about the nominee’s contribution to public access to government information. If possible, please also include a brief biography and contact information for the nominee.
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Happy #SunshineWeek2023! Pamela Wright, Chief Innovation Officer, looks at how the National Archives’ mission supports the Open Government initiative.
