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The Foilies 2021
RECOGNIZING THE YEAR’S WORST IN GOVERNMENT TRANSPARENCY
Compiled by the Electronic Frontier Foundation and MuckRock News
T he day after the 2021 inauguration, Sen. Chris
Murphy of Connecticut took to Twitter 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 vio
lations at the local taqueria. 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 Leeds-based post-punk band 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. In fact, it suuucks.
Since 2015, The Foilies have served as an annual
opportunity to name and shame the uncoolest govern
ment 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 jour
nalists, activists, academics and everyday folk who
have filed public records and experienced retaliation,
over-redactions, exorbitant fees and other transpar
ency malpractice. We publish this rogues’ gallery as
a faux awards program during Sunshine Week (Mar.
14-20), the annual celebration of open government
organized by the News Leaders Association.
This year, the Electronic Frontier Foundation is pub
lishing 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 pub
lic records requests. For previous year’s dubious winners
(many of whom are repeat offenders) check out our archive
at 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 oper
ations, many transparency advocates and journalists were
willing to accept some delays in responses 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, accord
ing 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 in 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 Most Secretive Dog’s Bollocks:
>ian 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 admin
istration 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 nonex
istence 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 gen
der. Conan’s breed and color were even blacked out, despite
the fact that photos of the dog had already been tweeted by
Trump.
The Redaction Most Likely to Make Your
Bubbe Weep: Federal Aviation Administration
When General Atomics proposed flying a new class of
drone over the San Diego region to demonstrate its domes
tic surveillance capabilities, Voice of San Diego reporter
Jesse Marx obviously wanted to learn how it possibly could
have been approved. So he filed a FOIA request with the
Federal Aviation Administration, and ultimately a lawsuit
to liberate documentation. Among the records he received
was an email containing a “little vent” from an FAA worker
that began with “Oy vey” and then virtually everything
else, including the employee’s four bullet-pointed “genu
inely constructive thoughts,” were redacted.
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 and 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 retal
iation we’ve seen in the history of the Foilies. Fagan has
since rebounded, turning his email newsletter into a “law
enforcement restricted site.”
The Government Retribution Award:
People seeking public records all too often have to
sue the government to get a response to their records
requests. But in an unusual turnaround, when attor
ney and activist Alan Kessler requested records from
the City of Portland, OR, related to text messages on
government phones, the government retaliated by
suing him and demanding that he turn over copies
of his own phone messages. Among other things, the
city specifically demanded that Kessler hand over all
Signal, WhatsApp, email and text messages having to
do with Portland police violence, the Portland police in
general, and the Portland protests.
Runner up: Reporter CJ Ciaramella requested records
from the Washington State Department of Corrections
about Michael Forest Reinoehl, who was killed by a joint
U.S. Marshals task force. The Washington DOC apparently
planned to produce the records—but before it could, the
Thurston County Sheriff’s Department sued Ciaramella and
the agency to stop the records from being disclosed.
The Most Expensive Cover-Up Award:
Small Business Administration
In the early weeks of the pandemic, the U.S. Small
Business Administration awarded millions of dollars to
small businesses through new COVID-related relief pro
grams—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 organiza
tions sued—tried to withhold the information under FOIA
exemptions 4 and 6, for confidential and private infor
mation. 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 It’s So Secret, Even The Bullet Points
Are Classified Award: Minnesota Fusion Center
Law enforcement and intelligence agencies are always
overzealous in claims that disclosing information will harm
national security. But officials with the Minnesota Fusion
Center took this paranoia to new heights when they claimed
a state law protecting “security information” required them
to redact everything—including bullet points—in docu
ments they provided to journalist Ken Klippenstein. And we
quite literally mean the bullets themselves.
► continued on p. 10
6 FLAGPOLE.COM | MARCH 17, 2021