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The 2016 Foilies

Some government agencies are so bad at handling public records requests, they deserve an award.


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Last spring, Shoshana Walter of the Emeryville-based Center for Investigative Reporting filed a routine public records request with the Sacramento County Sheriff's Department for a story on a rogue firearms instructor. The request was unceremoniously denied, so Walter did exactly what reporters do in that situation: She pushed back. Moments later she received an email that she was never meant to see.

"Okay, now what? She is being a pain," wrote the public servant handling the request. "Do we ask Peter what to do with her?"

The official immediately tried to recall the message. And then within an hour, the sheriff's department had a sudden change of heart and agreed to release the information. Meanwhile, all Walter could do was commiserate with other transparency advocates on the #FOIAFriday thread on Twitter.

Scroll through #FOIAFriday tweets, and you'll find that Walter's story is far from uncommon. In fact, the only thing unique is that, for once, Walter caught a glimpse of the cavalier attitude that many government agencies take toward transparency.

March 13–19 is Sunshine Week, the time each year in which open government activists around the country make as much noise as possible about the need to reform laws on access to information, whether that's the federal Freedom of Information Act (FOIA) or state-level laws, such as California's Public Records Act (CPRA) and New York's Freedom of Information Law (FOIL).

Journalists, government watchdogs, and regular citizens around the country encounter weak excuses, flagrant stonewalling, and retaliation from government officials on a daily basis. That's why, to celebrate Sunshine Week, the Electronic Frontier Foundation (EFF) created "The Foilies" — our name-and-shame awards for agencies and officials who stand in the way of transparency and accountability.

Join us on this journey as we examine some of the most ridiculous experiences that members of the public have faced while pursuing James Madison's 1822 advice: "Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

The Self-Server Award
Former Secretary of State Hillary Clinton

The homebrewed email server that former Secretary of State Hillary Clinton used during her time in office was lighter on complying with the spirit of FOIA than that watered-down lager brewed in your cousin's closet. And just as your cousin decides which buddies get to share in the homemade suds, Clinton herself decided which of her emails to share with the public and then deleted 30,000 of them.

Transparency advocates and journalists are right to criticize Clinton for using an insecure private email server, but it is important to remember that her story is merely the highest profile example of a public official misusing technology to stifle public oversight. For years, officials at the local, state, and federal levels have been using private communications to shield their work from public scrutiny: New York Governor Andrew Cuomo has communicated exclusively with Blackberry PIN messaging to avoid creating any public records, and high-level White House officials have used their private email to conduct government business. There are, sadly, dozens of other instances of governors, city councilmembers, and county supervisors doing the same thing.

When officials use private communications for work, they are not just potentially violating open records laws, but they are also stymieing the public's ability to understand the operation of their elected government and to hold officials accountable for their actions. Clinton deserves this award, but so does every official who seeks to hide his or her actions from the public by using private communications systems.

The "Old School" Award
Rowan County Clerk Kim Davis

Kim Davis, the Rowan County Clerk in Kentucky, ignited a national controversy last year when she was jailed for refusing to issue marriage licenses to same-sex couples. MuckRock News' Shawn Musgrave filed two requests for emails from that period, including emails covering the time when Davis had supposedly scheduled a meeting with Pope Francis.

It turned out that marriage wasn't the only issue in which Davis took a "traditional position." Rather than providing the 6,000 or so communications to MuckRock in a digital format, Davis insisted she was "old school on this email stuff," and instead asked Musgrave to pay $1,200 for the cost of print-outs — despite the fact that the Kentucky Open Records Act requires electronic records to be available in an electronic format. After a lengthy back-and-forth, Davis finally complied with the law and began forwarding the records.

Worst Definition of Terrorism
State of Georgia

Transparency advocate Carl Malamud's Public.Resource.Org has been on a quest to make sure that people have access to the laws that govern them. A righteous and benign endeavor, right? Well, not according to the State of Georgia, which is suing Malamud's organization for publishing a searchable and downloadable scan of the Official Code of Georgia Annotated. Georgia claims to hold the copyright to the laws, and alleges that by publishing them, Public.Resource.Org is not only engaged in piracy, but employing "a strategy of terrorism."

Just to be clear: reading a state's annotated statutes might bore some people to death, but publishing the laws of the land has never killed anyone.

Full disclosure: EFF represents Malamud and Public.Resource.Org in similar lawsuits around the country, but not the Georgia case.

Most Expensive FOIA Fee Estimate
Department of Defense

Last year we issued this award to the US Drug Enforcement Administration for asking for $1.46 million in fees to process a FOIA request related to the capture of Mexican drug lord Joaquin "El Chapo" Guzman (and that's even before he escaped, was interviewed by Sean Penn, and then recaptured).


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