The Public Record

Government transparency laws like the U.S. Freedom of Information Act exist to enforce the public’s right to inspect records so we can all figure out what’s being done in our name and with our tax dollars.

When a public agency ignores, breaks or twists the law, the recourse varies by jurisdiction. In some states, when an official improperly responds to a public records request, you can appeal to a higher bureaucratic authority or seek help from an ombudsperson. In most states (including California), you can take the dispute to court.

Public shaming and sarcasm, however, are tactics that can be applied anywhere.

The Emeryville-based nonprofit news organization Reveal tweets photos of chickpeas or coffee beans to represent each day a FOIA response is overdue, and asks followers to guess how many there are. The alt weekly DigBoston has sent multiple birthday cakes to local agencies on the one-year anniversary of delayed public records requests. The Electronic Frontier Foundation gives out awards during Sunshine Week, an annual celebration of open-government advocacy, for the worst responses to records requests and most outrageous efforts to stymie transparency.

The Mulligan Award – President Donald J. Trump

Since assuming the presidency, Donald Trump has skipped town more than 55 days to visit his Mar-a-Lago resort in Florida. He calls it his “Winter White House,” where he wines and dines and openly strategizes on things like how to respond to North Korean ballistic missile tests with the Japanese prime minister, for all his paid guests to see and post on Facebook. The fact that Trump’s properties have become secondary offices raises significant questions about transparency, particularly if club membership comes with special access to the president. To hold the administration accountable, Citizens for Responsibility and Ethics in Washington filed a FOIA request for the visitor logs, but received little in response. So CREW sued and, the Secret Service provided details about the Japanese leader’s entourage. As Politico and other news outlets reported, the Secret Service ultimately admitted they’re not actually keeping track. The same cannot be said about Trump’s golf score.

Fee of the Year – Texas Department of Criminal Justice

Sexual assault in prison is notoriously difficult to measure due to stigma, intimidation and apathetic bureaucracy. Nevertheless, MuckRock reporter Nathanael King made a valiant effort to find out whatever he could about these investigations in Texas, a state once described bythe>Dallas Voice as the “Prison Rape Capital of the U.S.” The Texas Department of Criminal Justice came back with unexpected numbers: TDCJ demanded $1,132,024.30 before the agency would release 260,000 pages of records that it said would take 61,000 hours of staff time to process. That in itself may be an indicator of the scope of the problem. To the agency’s credit, they pointed the reporter to other statistical records compiled to comply with the federal Prison Rape Elimination Act, which TDCJ provided for free.

Best Transparency Theater – Atlanta Mayor Kasim Reed

“Transparency theater” is the term we use to describe an empty gesture meant to look like an agency is embracing open government, when really it’s meant to obfuscate. For example, an agency may dump an overwhelming number of documents and put them on display for cameras. But because there are so many records, the practice actually subverts transparency by making it extremely difficult to find the most relevant records in the haystack.

Such was the case with Atlanta Mayor Kasim Reed, who released 1.476 million documents about a corruption probe to show his office was supporting public accountability.

“The documents filled hundreds of white cardboard boxes, many stacked up waist-high against walls and spread out over rows of tables in the cavernous old City Council chamber,” >Atlanta Journal-Constitution reporter Leon Stafford wrote. “Reed used some of the boxes as the backdrop for his remarks, creating a six-foot wall behind him.”

Journalists began to dig through the documents and quickly discovered that many were blank pages or fully redacted, and in some cases the type was too small for anyone to read. AJC reporter J. Scott Trubey’s hands became covered in papercut gore. It turned out the whole spectacle was a waste of trees: The records already existed in a digital format. It’s just that a couple of hard drives on a desk don’t make for a great photo op.

The Foot-Dragging Award – FBI

The FBI’s claim that it would take 17 years to produce a series of records about civil rights-era surveillance has not withstood the test of time.

As Politico first reported, George Washington University professor and documentary filmmaker Nina Seavey asked for records about how the FBI spied on antiwar and civil rights activists in the 1960s-70s. The FBI claimed they would only process 500 pages a month, which would mean the full set of 110,000 pages wouldn’t be complete until 2034.

A federal judge disapproved, writing in her opinion: “The agency’s desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work.”

The Prime Example Award – Midcoast Regional Redevelopment Authority (Maine)

When Amazon announced last year it was seeking a home for its second headquarters, municipalities around the country rushed to put together proposals to lure the tech giant to their region. Knowing that, in Seattle, Amazon left a substantial footprint on a community (particularly around housing), transparency organizations like MuckRock and the Lucy Parsons Labs followed up seeking records connected to these cities’ sales pitches.

More than 20 cities, such as Chula Vista, California, and Toledo, Ohio, produced the records – but other agencies, including Albuquerque, New Mexico, and Jacksonville, Florida, refused to turn over the documents. The excuses varied, but perhaps the worst response came fromMaine’s Midcoast Regional Redevelopment Authority. The agency did provide the records, but claimed that by opening an email containing 37 pages of documents, MuckRock had automatically agreed to pay an exorbitant $750 in “administrative and legal fees.” Remind us to disable one-click ordering.

Battle of the Burrito Award – CIA

Buzzfeed reporter Jason Leopold has filed thousands of records requests over his career, but one redaction has become his all-time favorite. Leopold was curious whether CIA staff are assailed by the same stream of office emails as every other workplace. So, he filed a FOIA request. The short answer: Yes, they do. Deep in the document set was an announcement that “the breakfast burritos are back by popular demand,” with a gigantic redaction covering half the page citing a personal privacy exemption. What are they hiding? Is Anthony Bourdain secretly a covert agent? Did David Petraeus demand extra guac?

Courthouse Bully Award – Every Agency Suing a Requester

As director of the privacy advocacy group We See You Watching Lexington, Michael Maharrey filed a public records request to find out how his city was spending money on surveillance cameras. After the Lexington Police Department denied his request, Maharrey appealed to the Kentucky Attorney General’s office – and won.

But rather than listen to the state’s top law enforcement official, Lexington Police hauled Maharrey into court.

As the Associated Press reported last year, lawsuits like these are reaching epidemic proportions. The Louisiana Department of Education sued a retired educator who was seeking school enrollment data for his blog. Portland Public Schools in Oregon sued a parent who was curious about employees paid while on leave for alleged misconduct. Michigan State University sued ESPN after it requested police reports on football players allegedly involved in a sexual assault.The University of Kentucky and Western Kentucky University have each sued their own student newspapers whose reporters were investigating sexual misconduct by school staff.

Such lawsuits discourage reporters and concerned citizens from even thinking of filing a public records request in the first place.

Special Recognition for Congressional Overreach – U.S. House of Representatives

Because Congress wrote the Freedom of Information Act, it had the awesome and not-at-all-a-conflict-of-interest power to determine which parts of the federal government must obey it. That’s why it may not shock you that since passing FOIA more than 50 years ago, Congress has never made itself subject to the law.

So far, requesters have been able to fill in the gaps by requesting records from federal agencies that correspond with Congress. For example, maybe a lawmaker writes to the U.S. Department of Puppies asking for statistics on labradoodles. That adorable email chain wouldn’t be available from Congress, but you could get it from the Puppies Department’s FOIA office. (Just to be clear: This isn’t a real federal agency. We just wish it was.)

In 2017 it’s become increasingly clear that some members of Congress believe FOIA can never reach anything they do, even when they or their staffers share documents or correspond with federal agencies. The House Committee on Financial Services sent a threatening letter to the Treasury Department telling them to not comply with FOIA. After the Department of Health and Human Services and the Office of Management and Budget released records that came from the House Ways and Means Committee, the House intervened in litigation to argue that their records cannot be obtained under FOIA.

The Constitution says Congress gets to write laws; it’s too bad it doesn’t require Congress to actually read them.

Data Disappearance Award – Trump Administration

Last year, we gave the “Make America Opaque Again Award” award to newly inaugurated President Trump for failing to follow tradition and release his tax returns during the campaign. His talent for refusing to make information available to the public has snowballed into an administration that deletes public records from government websites. From the National Park Service’s climate action plans for national parks, to the U.S. Department of Agriculture’s animal welfare datasets, to nonpartisan research on the corporate income tax, the Trump Administration has decided to make facts that don’t support its positions disappear. The best example of this vanishing game is the Environmental Protection Agency’s removal of the climate change website in April 2017, which only went back online after being scrubbed of climate change references, studies and information to educate the public.

The Danger in the Dark Award – The Army Corps of Engineers

When reporters researching the Dakota Access Pipeline on contested tribal lands asked for the U.S. Army Corps of Engineers’ environmental impact statement, they were told nope, you can’t have it. Officials cited public safety concerns as reason to deny the request: “The referenced document contains information related to sensitive infrastructure that if misused could endanger people’s lives and property.”

Funny thing is, the Army Corps had already published the same document on its website a year earlier. What changed in that year? Politics. The Standing Rock Sioux, other tribal leaders and “Water Protector” allies had since staged a multi-month peaceful protest and sit-in to halt construction of the pipeline.

The need for public scrutiny of the document became clear in June when a U.S. federal judgefound that the environmental impact statement omitted key considerations, such as the impact of an oil spill on the Standing Rock Sioux’s hunting and fishing rights.

Business Protection Agency Award – U.S. Food and Drug Administration

The FDA’s mission is to protect the public from harmful pharmaceuticals, but they’ve recently fallen into the habit of protecting powerful drug companies rather than informing people about potential drug risks.

Last year, Charles Seife at the Scientific American requested documents about the approval process for a controversial drug to treat Duchenne muscular dystrophy (DMD). The FDA cited business exemptions and obscured listed side effects as well as testing methodology for the drug, despite claims that manufacturer manipulated results during product trials and pressured the FDA to push an ineffective drug onto the market. The agency even redacted portions of aBloomberg Businessweek article about the drug because the story provided names and pictures of teenagers with DMD.

Crime & Punishment Award – Martin County Commissioners (Florida)

In many states, open records laws are toothless and treated as recommendations rather than mandates. One major exception to the rule is Florida, where violations of its “Sunshine Law” can result in criminal prosecution.

That brings us to Martin County Commissioners Ed Fielding and Sarah Heard and former Commissioner Anne Scott, each of whom were booked into jail in November on multiple charges related to violations of the state’s public records law. As Jose Lambiet of GossipExtra and the Miami Herald reported, the case emerges from a dispute between the county and a mining company that already resulted in taxpayers footing a $500,000 settlement in a public records lawsuit. Among the allegations, the officials were accused of destroying, delaying and altering records. The cases are set to go to trial in December 2018.

The Square Footage Award – Jacksonville Sheriff’s Office (Florida)

When a government mistake results in a death, it’s important for the community to get all the facts. In the case of 63-year-old Blane Land, who was fatally hit by a Jacksonville sheriff’s patrol car, those facts include dozens of internal investigations against the officer behind the wheel. The officer, Tim James, has since been arrested on allegations that he beat a handcuffed youth,raising the question of why he was still on duty after the vehicular fatality.

Land’s family hired an attorney, and the attorney filed a request for records. Rather than having a complete airing of the cop’s alleged misdeeds, the sheriff came back with a demand for $314,687.91 to produce the records, almost all of which was for processing and searching by the internal affairs division. Amid public outcry over the prohibitive fee, the sheriff took to social media to complain about how much work it would take to go through all the records in the 1,600-foot cubic storage room filled with old-school filing cabinets.

The family is not responsible for the sheriff’s filing system or feng shui, nor is it the family’s fault that the sheriff kept an officer on the force as the complaints – and disciplinary records – stacked up.

These Aren’t the Records You’re Looking For Award – San Diego City Councilmember Chris Cate

Shortly after last year’s San Diego Comic-Con and shortly before the release of Star Wars: The Last Jedi, the city of San Diego held a ceremony to name a street after former resident and actor Mark Hamill. A private citizen (and EFF staff member) wanted to know: How does a Hollywood star get his own roadway?

The city produced hundreds of pages related to his request that showed how an effort to change the name of Chargers Boulevard after the football team abandoned the city led to the creation of Mark Hamill Drive. The document set even included Twitter direct messages between City Councilmember Chris Cate and the actor. However, Cate used an ineffective black marker to redact, accidentally releasing Hamill’s cell phone number.

As tempting as it was to put Luke Skywalker on speed dial, the requester did not want to be responsible for doxxing one of the world’s most beloved actors. He alerted Cate’s office of the error, which then re-uploaded properly redacted documents.

This story is by Electronic Frontier Foundation senior investigative researcher Dave Maass, staff attorney Aaron Mackey and Frank Stanton fellow Camille Fischer. EFF is a San Francisco-based nonprofit. More at

Source :

Public records rules give us the right to examine government documents – except when the government fights back.
Sunshine Week: Government records belong to public
Video of Pulse Massacre Is Now Public Record
Sunshine Week: Tales from the public record trenches
Two public record laws: one for the Legislature and one for everyone else
Public records are yours
5 times we used Texas public records to get answers — and how you can, too
Editorial: Live up to commitment to public records
Got a minute for better government, Denton? New ethics rules need public feedback
Sunshine week: Dave Ress and the battle with FOIA for public records