Tag Archive for: FOIA

Paulding County School District Now Trying To Duck FOIA Requests

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You will recall the brief clusterfuck that occurred earlier this month in Georgia’s Paulding County. The school district there, which opened back up for in-person classes while making wearing a mask completely optional, also decided to suspend two students who took and posted pictures of crowded hallways filled with maskless students. While the district dressed these suspensions up as consequences for using a smartphone on school grounds, the school’s administration gave the game away by informing all students that they would be disciplined for any criticism by students on social media in general. That, as we pointed out, is a blatant First Amendment violation.

Once the blow-back really got going, the school district rescinded the suspensions. In the days following, students and teachers at the school began falling ill and testing positive for COVID-19. It got bad enough that the school decided to shut down. With so much media attention, it was a matter of who was going to get the FOIA requests in for documents on what led to the suspensions first.

Vice put a request in. However, because this district can’t seem to stop punching itself in the gut, the school district is attempting to duck the FOIA requests entirely. Not through redactions. It just isn’t going to give up any internal documents at all, even as it acknowledges it has documents in hand.

“The District is in possession of responsive documents,” the response, signed by W. Thomas Cable in their role as the attorney for the Paulding County School District, reads. “However, pursuant to Georgia law, the following categories of information have not been produced, via redaction or removal, to the extent a statutory exclusion is directly applicable.”

The public records request response also says the records are “specifically required by the federal government to be kept confidential.” School districts often attempt to reject freedom of information requests on the grounds of student privacy, but districts and individual schools should be able to produce redacted records that protect privacy while still giving information about how specific decisions were made behind the scenes.

Without question, the district has the ability to disclose the documents requested without violating any student or faculty privacy. What this is instead is a fairly brazen attempt to refuse a records request that will almost certainly be embarrassing for the district. Due to this, the refusal has gotten the attention of the Georgia First Amendment Foundation, which doesn’t sound like the kind of group that is going to simply let this go.

The cover up is always worse than the crime, as they say. However bad those records would have made Paulding County School District look, it’s now going to look all the worse with this attempt to bury the truth, should those documents eventually come out. And, given the speed with which the district retreated from the suspensions when challenged, you have to imagine a little bit of public pressure is all it’s going to take here as well.

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The Afghanistan Papers v. The Pentagon Papers: How A Whistleblower Worked Much Better Than Endless FOIA Litigation

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On Monday morning, the Washington Post released The Afghanistan Papers, an incredible (though, tragically, not surprising) collection of unpublished notes and interview transcripts revealing that the past three administrations — Trump, Obama, and Bush — all lied consistently and repeatedly about how bad things were going in Afghanistan, pretending that various actions were succeeding, while the reality was they knew it was an unwinnable war.

“We were devoid of a fundamental understanding of Afghanistan — we didn’t know what we were doing,” Douglas Lute, a three-star Army general who served as the White House’s Afghan war czar during the Bush and Obama administrations, told government interviewers in 2015. He added: “What are we trying to do here? We didn’t have the foggiest notion of what we were undertaking.”

“If the American people knew the magnitude of this dysfunction . . . 2,400 lives lost,” Lute added, blaming the deaths of U.S. military personnel on bureaucratic breakdowns among Congress, the Pentagon and the State Department. “Who will say this was in vain?”

And, as part of that, there was the concerted effort to hide this reality from the American public:

Several of those interviewed described explicit and sustained efforts by the U.S. government to deliberately mislead the public. They said it was common at military headquarters in Kabul — and at the White House — to distort statistics to make it appear the United States was winning the war when that was not the case.

“Every data point was altered to present the best picture possible,” Bob Crowley, an Army colonel who served as a senior counterinsurgency adviser to U.S. military commanders in 2013 and 2014, told government interviewers. “Surveys, for instance, were totally unreliable but reinforced that everything we were doing was right and we became a self-licking ice cream cone.”

John Sopko, the head of the federal agency that conducted the interviews, acknowledged to The Post that the documents show “the American people have constantly been lied to.”

For fairly obvious reasons, this release is being compared to the Pentagon Papers, a similar trove of documents that revealed how officials knew the Vietnam war was a lost cause and deliberately misled the American public about it for years.

There is one stark contrast between the two, however: how they came out. The Pentagon Papers came out because whistleblower Daniel Ellsberg leaked them to the press (for which President Nixon then tried to destroy his life in a bunch of different ways). The Afghanistan Papers, on the other hand, are coming out because of a years long FOIA battle by the Washington Post to get these documents released, against the wishes of the US government (who still was able to black out a bunch of information):

For all the talk about how whistleblowers and leakers should “use the proper channels,” every time we see the “proper channels” in action, they seem to only open up opportunities for the government to delay, hide things, and continue whatever destructive (but embarrassing) policy they have in place. There is a place for whistleblowers to call out this kind of misconduct, and as Ellsberg himself has been saying for years, the growing attacks (by each administration) against whistleblowers and leakers has much more to do with government embarrassment, rather than any legitimate attempt to “protect national security.”

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Office Of Legal Counsel Sued For Refusing To Turn Over Legal Memos Congress Said Aren’t Exempt From FOIA Law

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Another lawsuit has arisen from the Office of Legal Counsel’s ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute “deliberative” documents and/or are protected by attorney-client privilege.

But they’re not “deliberative.” In some cases — if not many cases — the OLC’s guidance tells government agencies what they can and can’t do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.

In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.

Once in a long while, a FOIA lawsuit forces a legal memo out of the office’s hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.

The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

In 2016… Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old.

[…]

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request.  

Since Congress has said older opinions can’t be considered “deliberative” any longer, it’s assumed the OLC will now claim these documents are protected by attorney-client privilege. The problem for litigants is the OLC’s unending relationship with the government agencies it advises. These attorneys and clients are eternally inseparable.

The OLC can’t even be bothered with half-assed compliance. This goes hand-in-hand with its barely-there transparency efforts over the past few decades.

As the lawsuit [PDF] points out, the OLC has been (very selectively) releasing decades-old legal opinions. But even with 40+ years lead time, the OLC still can’t bring itself to release more than a small percentage of its secret law stuff.

In 1977, the OLC began to publish a volume of selected opinions given “their value as precedents and as a body of executive law on important matters.” According to the foreword to the first volume, however, approximately 75 percent of the 1977 opinions were excluded from publication.

After 1977, the OLC stopped revealing how many opinions were excluded from its volumes. Some OLC volumes note that a “significant” number were excluded. These statements are consistent with the views of at least one former OLC official, who has stated that the “published opinions are only the tip of the iceberg.” For example, the same OLC official noted that the office “gave 625 opinions to outside agencies in 1991.” But the 1991 volume of OLC opinions published only 13 opinions, or about 2%.

More recently, the Sunlight Foundation obtained the OLC’s internal list of OLC opinions issued between 1998 and 2012. Comparing the list with the OLC opinions that the office had made public either through its volumes or through FOIA productions, the Sunlight Foundation found that the OLC kept almost 40 percent of the office’s opinions secret over that period.

Hopefully, this litigation will force the agency to take a bright line approach to its legal opinions. They’re given the full weight of the law by the agencies that comply with them, and yet the OLC continues to claim these are just suggestions and attorney-client conversations. But they’re far more than that. They’re laws the public can’t read, can’t comply with, and can’t seek to have changed if they disagree with them.

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DC Legislators Push FOIA Amendment That Would Shield Government Emails From FOIA Requesters

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Buried at the bottom of Washington, D.C.’s 2020 budget report [PDF] is a gift to legislators who value opacity. The so-called “Freedom of Information Clarification Amendment” would make it much more difficult for requesters to obtain the documents they’re seeking.

The amendment to the district’s FOIA law would require requesters to know exactly what documents they’re seeking when they request them. It’s a nearly-impossible bar to hurdle — one that turns FOIA requests into games of Battleship.

“Reasonably describing” means describing with particularity the public records requested by including the names of the sender and recipient, a timeframe for the search, and a description of the subject matter of the public record or search terms to allow a public body to conduct a search and review within the time prescribed pursuant to section 202(c).”.

What this means is requesters seeking communications would need to know both the sender and recipient of emails they’ve never seen or the agency can reject the request entirely. The legislator pushing this says it will stop “fishing expeditions.” But requests are sometimes necessarily “fishing expeditions” because requesters are working blind. They don’t have access to these communications and have no way of knowing how many parties discussed the subject at hand. If this passes, D.C. government agencies will be pressing the “reject” button with increased frequency.

If there’s anything transparent here, it’s the self-interest of the legislators pushing the amendment. One member of the D.C. Council — a Democrat like the councilmember who wrote the amendment — has been the subject of unflattering news coverage based on FOIA requests.

In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.

[…]

Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council.

Legislators’ own dishonest dealings have often resulted in calls to change public records rules to provide more opacity. Claims are made about “fishing expeditions” and protecting the private lives of legislators but, in reality, the real goal is protecting government employees from the people they serve.

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