The Follies 2021
Democratic Sen. Chris Murphy of Connecticut took to Twitter the day after the 2021 inauguration 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. 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 U.K. 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.
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 published this rogues gallery as a faux awards program during Sunshine Week last week, the annual celebration of open government organized by the News Leaders Association.
This year, the Electronic Frontier Foundation is publishing 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. For previous year’s dubious winners, visit eff.org/issues/foilies.
And, without further ado …
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.
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.
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 the names of recipients public. 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.
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.
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.
The Most Secretive Dog’s Bollocks
Conan the Belgian Malinois
Back in 2019, what should’ve been a fluff story (or scruff story) about Conan, the Delta Force K9 that was injured while assisting in the raid that took out an Islamic State leader, became yet another instance of the Trump administration tripping over itself with the facts. Was Conan a very good boy or a very good girl? Various White House and federal officials contradicted themselves, and the mystery remained.
Transparency advocate and journalist Freddy Martinez wouldn’t let the sleeping dog lie; he filed a FOIA request with the U.S. Special Operations Command, aka SOCOM. But rather than release the records, officials claimed they could “neither confirm nor deny the existence or nonexistence of records,” the much dreaded “Glomar response” usually reserved for sensitive national security secrets (the USNS Hughes Glomar Explorer was a secret CIA ship that the agency didn’t want to acknowledge existed). Never one to roll over, Martinez filed a lawsuit against SOCOM and the Defense Department in June 2020.
Just in time for Sunshine Week, Martinez got his records — a single page of a veterinary examination, almost completely redacted except for the dog’s name and the single letter “M” for gender. Conan’s breed and color were even blacked out, despite the fact that photos of the dog had already been tweeted by Trump.
The Save the Children (in a Hidden Folder) Award
Louisville Metropolitan Police Department
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, which oversees the Explorers, 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 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 — well, what do you know — 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.
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 it 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.
The Foilies were compiled by Electronic Frontier Foundation’s Dave Maass, Aaron Mackey and Naomi Gilens, along with MuckRock News’ Michael Morisy and Beryl Lipton, with help from Shawn Musgrave.