Illustrations by Caitlyn Crites

Each year during Sunshine Week (March 13-19), The Foilies serve up tongue-in-cheek “awards” for government agencies and assorted institutions that stand in the way of your right to access to information. The Electronic Frontier Foundation and MuckRock combine forces to collect horror stories about Freedom of Information Act (FOIA) and state-level public records requests from journalists and transparency advocates across the United States and beyond. Since 2015, our goal is to identify the most surreal document redactions, the most aggravating copy fees, the most outrageous retaliation attempts, and all the other ridicule-worthy attacks on the public’s right to know.

As we were writing up this year’s faux awards, news broke that officials from the National Archives and Records Administration had to lug away boxes upon boxes of Trump administration records from Mar-a-Lago, President Trump’s private resort. At best, it was an inappropriate move; at worst, a potential violation of Federal laws governing the retention of presidential records and the handling of classified materials. And while Politico had reported that when Trump was still in the White House, he liked to tear up documents, we also just learned from journalist Maggie Haberman’s new book that staff claimed to find toilets clogged up with paper scraps, which were potentially torn-up government records. Trump has dismissed the allegations, of course. 

This was all too deliciously ironic considering how much Trump had raged about his opponent (and 2016 Foilies winner) Hillary Clinton’s practice of storing State Department communications on a private server. Is storing potentially classified correspondence on a personal email system any worse than hoarding top secret documents at a golf club? Is “acid washing” records, as Trump accused Clinton, any less farcical than flushing them down the john? 

Ultimately, we decided not to give Trump his seventh Foilie. Technically he isn’t eligible: his presidential records won’t be subject to FOIA until he’s been out of office for five years (releasing classified records could take years, or decades, if ever). 

Here’s a selection of our winners — all shameworthy people and entities who have no problem tossing government transparency in the crapper. 

The C.R.E.A.M. (Crap Redactions Everywhere Around Me) Award

U.S. Marshals

The Wu‐Tang Clan ain’t nothing to F’ with … unless the F stands for FOIA. 

Back in 2015, Wu-Tang Clan produced Once Upon a Time in Shaolin, but they only produced one copy and sold it to the highest bidder: pharma-bro Martin Shkreli, who was later convicted of securities fraud. 

When the U.S. Marshals seized Shkreli’s copy of the record under asset forfeiture rules, the Twitterverse debated whether you could use FOIA to obtain the super secretive album. Unfortunately, FOIA does not work that way. However, BuzzFeed News reporter Jason Leopold was able to use the law to obtain documents about the album when it was auctioned off through the asset forfeiture process including photos of the album, the bill of sale, and the purchase agreement. 

But the Marshals redacted the pictures of the CDs, the song titles and the lyric book citing FOIA’s trade secrets exemption. Worst of all, they also refused to divulge the purchase price — even though we’re talking about public money. And so here we are, bringing da motherfoia-ing ruckus. 

(The New York Times would later reveal that PleasrDAO, a collective that collects digital NFT art, paid $4 million for the record.)

Wu-Tang’s original terms for selling the album reportedly contained a clause that required the buyer to return all rights in the event that (Charleston’s favorite son) Bill Murray successfully pulled off a heist of the record. We can only daydream about how the Marshals would’ve responded if Dr. Peter Venkman himself refiled Leopold’s request.

These 10-day Deadlines Go To 11 Award 

Assorted Massachusetts Agencies

Most records requesters know that despite nearly every transparency law imposing response deadlines, they often are violated more than they are met. Yet Massachusetts officials’ time-warping violations of the state’s 10-business-day deadline take this public records’ reality to absurd new levels.

DigBoston’s Maya Shaffer detailed how officials are giving themselves at least one extra business day to respond to requests while still claiming to meet the law’s deadline. In a mind-numbing exchange, an official said that the agency considers any request sent after 5 p.m. to have technically been received on the next business day. And because the law doesn’t require agencies to respond until 10 business days after they’ve received the request, this has in effect given the agency two extra days to respond. So if a request is sent after 5 p.m. on a Monday, the agency counts Tuesday as the day it received the request, meaning the 10-day clock doesn’t start until Wednesday.

The theory is reminiscent of the This Is Spinal Tap scene in which guitarist Nigel Tufnel shows off the band’s “special” amplifiers that go “one louder” to 11, rather than maxing out at 10 like every other amp. When asked why Spinal Tap doesn’t just make the level 10 on its amps louder, Tufnel stares blankly before repeating: “these go to eleven.” 

Although the absurdity of Tufnel’s response is comedic gold, Massachusetts officials’ attempt to make their 10-day deadline go to 11 is contemptuous, and also likely violates laws of the state and those of space and time. 

The Futile Secrecy Award

Concord Police Department

When reporters from the Concord Monitor in 2019 noticed a vague $5,100 line item in the Concord Police Department’s proposed budget for “covert secret communications,” they started asking questions. What was the technology? Who was the vendor? And they filed public records requests under New Hampshire’s Right to Know Law.

In response, CPD provided a license agreement and a privacy policy, but the documents were so redacted, the reporters still couldn’t tell what the tech was and what company was receiving tax dollars for it. Police claimed releasing the information would put investigations and people’s lives at risk. With the help of the ACLU of New Hampshire, the Monitor sued but Concord fought it for two years all the way to the New Hampshire Supreme Court. The police were allowed to brief the trial court behind closed doors, without the ACLU lawyers present, and ultimately the state supreme court ruled most of the information would remain secret. 

But when The Monitor reached out to EFF for comment, EFF took another look at the redacted documents. In under three minutes, our researchers were able to use a simple Google search to match the redacted privacy policy to Callyo, a Motorola Solutions product that facilitates confidential phone communications. 

Hundreds of agencies nationwide have now included the company’s name in their public spending ledgers, according to the procurement research tool GovSpend. The City of Seattle even issued a public privacy impact assessment regarding its police department’s use of the technology, which noted that “Without appropriate safeguards, this raises significant privacy concerns.” Armed with this new information, the Monitor called Concord Police Chief Brad Osgood to confirm what we learned. He doubled-down: “I’m not going to tell you whether that’s the product.”

The Operation Slug Speed Award

U.S. Food and Drug Administration

The federal government’s lightning fast (by bureaucratic standards) timeline to authorize Pfizer’s COVID-19 vaccine lived up to its Operation Warp Speed name. But the Food and Drug Administration gave anything but the same treatment to a FOIA request seeking data about that authorization process.

55 years — that’s how long the FDA, responding to a lawsuit by doctors and health scientists, said it would take to process and release the data it used to authorize the vaccine. And yet, the FDA needed only months to review the data the first time and confirm that the vaccine was safe for the public.

The estimate was all the more galling because the requesters want to use the documents to help persuade skeptics that the vaccine is safe and effective. 

Thankfully, the court hearing the FOIA suit nixed the FDA’s snail’s pace plan to review just 500 pages of documents a month. In February, the court ordered the FDA to review 10,000 pages for the next few months and ultimately between 50,000-80,000 through the rest of the year.

Whose Car is it Anyway? Award

Waymo

Do you and your fellow pedestrians and drivers have the right to know about previous accidents of self-driving cars and how they handle tight turns and steep hills on the road?

Waymo, owned by Google parent Alphabet Inc. and operator of an autonomous taxi fleet in San Francisco, answers, respectively: none of your business, and no! A California trial court ruled in late February that Waymo gets to keep this information secret.

Waymo sued the California Department of Motor Vehicles to stop it from releasing unredacted records requested by an anonymous person under the California Public Records Act. The DMV outsourced the redactions to Waymo, and claiming that it needed to protect its trade secrets, Waymo sent the records back with black bars over most of its answers, and even many of the DMV’s questions.

The “You can have a beach house, or you can have your FOIA” Award

Pasco County Sheriff’s Office

In September 2020, the Tampa Bay Times revealed in a multi-part series that the Pasco County Sheriff’s Office was using a program called “Intelligence-led Policing” (ILP). This program gathered data from various local government agencies, including school records, to determine if a person was likely to commit a crime in the future—and then deputies would randomly drop by their house regularly to harass them.

Out of suspicion that the sheriff’s office might be leasing the formula for this program to other departments, EFF filed a public records request asking for any contact mentioning the ILP program in emails specifically sent to and from other police departments. The sheriff responded with an unexpectedly high-cost estimate for producing the records. Claiming there was no way at all to clarify or narrow the broad request, and ignoring the ability to use a simple ‘search’ feature, the sheriff’s office projected that it would take 82,738 hours to review the 4,964,278 responsive emails — generating a cost of $1.158 million for the public records requester, the equivalent of a 3,000-square seaside home with its own private dock in New Port Richey.

Do As I Say, Not As I Do Award

Texas Attorney General Ken Paxton

Texas law requires a unique detour to deny or redact responsive records, directing agencies to go through the Attorney General for permission to leave anything out. It’s bad news for transparency if that office circumvents proper protocol when handling its own records requests; it’s even worse if those records involve a government official — current Texas AG Ken Paxton — and activities targeted at overthrowing the democratic process. 

On Jan. 6, 2021, Paxton (who is currently up for reelection, facing multiple charges for securities fraud, and was reportedly the subject of a 2020 FBI investigation) and his wife were in Washington, D.C. to speak at a rally in support of former President Donald Trump, which was followed by the infamous invasion of the Capitol by Trump supporters. Curious about Paxton’s part in that historic event, a coalition of Texas newspapers submitted a request under the state’s public records law for the text messages and emails Paxton sent that day in D.C. 

Paxton’s  booking mugshot

Paxton’s office declined to release the records. It may not have even looked for them. The newspapers found that the AG doesn’t seem to have its own policy for searching for responsive documents on personal devices, which would certainly be subject to public records law, even if the device is privately-owned.

The Travis County District Attorney subsequently determined that Paxton’s office had indeed violated the Texas open records law. Paxton maintains that no wrongdoing occurred and, as of late February, hadn’t responded to a letter sent by the DA threatening a lawsuit if the situation is remedied ASAP. 

“When the public official responsible for enforcing public records laws violates those laws himself,” Bill Aleshire, an Austin lawyer, told the Austin American-Statesman, “it puts a dagger in the heart of transparency at every level in Texas.”

The Rip Van Winkle Award

FBI

Last year, Bruce Alpert received records from a 12-year-old FOIA request he filed as a reporter for the Times-Picayune in New Orleans. Back when he filed the request, the corruption case of U.S. Rep. William Jefferson (D-New Orleans) was still hot — despite the $90,000 in cash found in Jefferson’s cold freezer. 

In 2009, Alpert requested documents from the FBI on the sensational investigation of Jefferson, which began in 2005. In the summer of that year, FBI agents searched Jefferson’s Washington home and, according to a story published at the time, discovered foil-wrapped stacks of cash “between boxes of Boca burgers and Pillsbury pie crust in his Capitol Hill townhouse.” Jefferson was indicted on 16 federal counts, including bribery, racketeering, conspiracy and money laundering, leading back to a multimillion-dollar telecommunications deal with high-ranking officials in Nigeria, Ghana and Cameroon. 

By the time Alpert got the 83 pages he requested on the FBI’s investigation into Jefferson, Alpert himself was retired and Jefferson had been released from prison. 

In a staff editorial about the extreme delay, The Advocate (which acquired the Times-Picayune in 2019) quoted Anna Diakun, a staff attorney with the Knight First Amendment Institute at Columbia University: “The Freedom of Information Act is broken.” We suppose it’s better late than never, but never late is even better.

The FOIA Gaslighter of the Year Award

Louisiana Attorney General Jeff Landry

In another case involving the Times-Picayune, the FOIA gaslighter of the year award goes to Louisiana Attorney General Jeff Landry for suing reporter Andrea Gallo after she requested documents related to the investigation into (and seeming lack of action on) sexual harrasment complaints in Landry’s office. 

Landry

A few days later, following public criticism, Landry then tweeted that the lawsuit was not actually a lawsuit against Gallo per se, but legal action “simply asking the Court to check our decision” on rejecting her records request. 

Gallo filed the original request for complaints against Pat Magee, a top aide to Landry, after hearing rumblings that Magee had been placed on administrative leave. The first response to Gallo’s request was that Magee was under investigation and the office couldn’t fulfill the request until that investigation had concluded. A month later, Gallo called the office to ask for Magee and was patched through to his secretary, who said that Magee had just stepped out for lunch but would be back shortly. 

Knowing that Magee was back in the office and the investigation likely concluded, Gallo started pushing harder for the records. Then, late on a Friday when Gallo was on deadline for another story, she received an email from the AG’s office about a lawsuit naming her as the defendant. A month later, a Baton Rouge judge ruled in favor of Gallo, and ordered Landry to release the records on Magee. Shortly after Gallo received those documents, another former employee of the AG’s office filed a complaint against Magee, resulting in his resignation.

The Foilies were compiled by the Electronic Frontier Foundation (Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey, Frank Stanton Fellow Mukund Rathi, Investigative Researcher Beryl Lipton, Policy Analyst Matthew Guariglia) and MuckRock (Co-Founder Michael Morisy, Senior Reporting Fellows Betsy Ladyzhets and Dillon Bergin, and Investigations Editor Derek Kravitz), with further review and editing by Shawn Musgrave.

Illustrations are by EFF Designer Caitlyn Crites. The Foilies are published in partnership with the Association of Alternative Newsmedia. For more transparency trials and tribulations, check out The Foilies archives at eff.org/issues/foilies.


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