Tag Archives: foia

Republican Election Commissioners Just Released Key Legal Documents—Nearly a Decade Too Late

by HattieCloud2 Posted on February 24, 2017

Mother Jones

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A strange thing happened last week at the Federal Election Commission, the nation’s watchdog for campaigns and elections. On Friday evening, the FEC’s three Republican members quietly released a slew of missing legal memos related to cases dating back as far as 10 years. The commissioners gave no reason for why they decided to act now, after a decade of silence on the cases in question.

But it turns out that the newly released memos were the result of a Freedom of Information Act request recently filed by Mother Jones. The request was a modest one and asked only for a list of all such overdue legal documents at the FEC. That list would show every case for which FEC commissioners had failed to perform a customary part of their jobs: explaining to the public why they had voted a certain way on cases that had come before the agency. Dismiss a complaint, open an investigation, assess a fine—whichever way a commissioner decides, he or she is expected to explain that decision in a memo made available to the public.

In a move that perplexed several legal experts, the FEC denied our FOIA request. Yet soon after that, the FEC’s three Republican commissioners hastily wrote and released to the public 11 of these long-overdue legal memos. When Mother Jones asked the three Republican commissioners if our FOIA request had anything to do with their decision to act, two of them, Lee Goodman and Matthew Petersen, confirmed that it had. “Most of these were on the back burner as our reasons were either already clear or changes in the law made the issues moot,” Petersen says. “Your request was a useful reminder to bolster the record with formal statements.”

Congress created the FEC in the 1970s to police campaign-related abuses and enforce election laws passed in the wake of Watergate. Unlike most federal agencies, the FEC has an even number of commissioners—six—divided equally by political party. In today’s hyper-partisan environment, with frequent 3-3 deadlocks on key votes, it’s hard not to see the FEC as an institution designed to fail. (The commission will be without a sixth member now that Democrat Ann Ravel has announced her resignation, effective March 1.)

But for most of its 40-year history, the FEC worked mostly fine. The commissioners regularly found the four-vote majority they needed to act—to investigate potential wrongdoing, assess fines against lawbreakers, and provide guidance to candidates, committees, political parties, and other outfits looking to get involved in federal elections. That began to change in the mid-2000s. Three new Republicans came aboard who took a more ideological approach to campaign finance laws and free speech. Led by then-Commissioner Donald McGahn, who is now President Donald Trump’s White House counsel, the Republicans often voted in lockstep to block enforcement actions. A Public Citizen analysis found that the FEC hit a 3-3 vote on enforcement actions roughly 1 percent of the time between 2003 and 2007. In 2008, deadlocks rose to 10 percent. In 2013, they hit a peak of 23 percent. “For nearly every case of major significance over the past several years, the Commission has deadlocked on investigating serious allegations or has failed to hold violators fully accountable,” outgoing Democratic Commissioner Ann Ravel wrote in a recent report titled Dysfunction and Deadlock.

When FEC commissioners vote on a case to go against what the agency’s lawyers recommend, they are required to publish a legal justification—a Statement of Reasons, in agency jargon—for why they voted the way they did. These memos educate the public on the legal underpinnings of the commission’s decisions and give outside parties a basis to sue the agency if they disagree. But starting in the mid-2000s, the FEC’s Republicans simply stopped explaining many of their decisions. Some or all of the Republican commissioners failed to write Statements of Reasons in 25 such cases over a 10-year span, according to an unofficial tally obtained by Mother Jones earlier this month. (The tally shows that Democratic commissioners had no overdue Statements of Reasons.)

Larry Noble, a former FEC general counsel who now works at the Campaign Legal Center, a group that supports tighter political donation limits and more transparency in elections, says that failure to file Statements of Reasons is longstanding problem that has worsened over time. “Delaying them deprives the public of knowing what’s going on or why commissioners did what they did,” Noble says.

A few weeks ago, Mother Jones filed a Freedom of Information Act request seeking the FEC’s own list of all overdue legal Statements of Reasons. In its February 17 denial letter, an FEC official cited FOIA Exemption 5, which shields from disclosure “documents covered by the attorney work-product, deliberative process, and attorney-client privileges.”

Two hours after the denial, the FEC posted its weekly digest. It included the 11 Statements of Reasons authored by Republican commissioners relating to old cases. The documents were all signed and dated within a four-day span last week, and each one is only several pages long, unlike the lengthy, footnote-laden documents typically produced by the commissioners and their staffs.

Ellen Weintraub, the senior-most Democratic commissioner at FEC, applauded the release of the 11 legal memos. “I am pleased on behalf of the American people that they are finally getting some kind of explanation for the commission’s failure to act in so many cases,” she says.

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Republican Election Commissioners Just Released Key Legal Documents—Nearly a Decade Too Late

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Now That We Know These Disturbing Numbers, Can We Trust Air Marshals?

by GregOneill Posted on March 8, 2016

Mother Jones

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This story was originally published in ProPublica.

Seven and a half years ago, as a new reporter at ProPublica, I filed a Freedom of Information Act request for all reports of misconduct by federal air marshals.

It had been several years since the U.S. government rapidly expanded its force of undercover agents trained to intervene in hijackings after 9/11. And a source within the agency told me that a number of air marshals had recently been arrested or gotten in trouble for hiring prostitutes on missions overseas.

I knew the FOIA request would take a while—perhaps a few months—but I figured I’d have the records in times for my first ProPublica project.

Instead, I heard nothing but crickets from the Transportation Security Administration.

Finally, last Wednesday, an email popped into my inbox with the data I had been fighting for since my fourth day at ProPublica.

The saga to get the air marshal data reveals a lot about the problems with FOIA, which is supposed to guarantee the public’s access to government records, as well as what happens when an agency decides to drag out the process.

Even though the Federal Air Marshal Service insists it has taken steps to build an agency steeped in professionalism with no tolerance for misconduct, it continues to face the same issues it was battling when I filed my FOIA request in 2008.

While waiting for the data, I found dozens of air marshals who had been arrested for crimes ranging from aiding a human trafficking ring to attempted murder. One air marshal used his badge to smuggle drugs past airport security while another used his to lure a young boy to his hotel room, where he sexually abused him.

Air marshals had hired prostitutes in Barcelona and gotten into a fight with security guards after patronizing a brothel in Frankfurt.

Another marshal’s in-air behavior concerned flight attendants so much that they reported it to the agency, saying “I can’t believe he is able to carry a gun!” (That officer was later convicted of bank fraud for trying to cash a $10.9 million check that he said was a settlement after he was a scratched by a friend’s cat.)

As time passed, the problems continued.

Last year, several other news outlets published troubling reports about air marshals that sound remarkably similar. A few selections: Air marshals accused of hiring prostitutes in Europe and recording the sex on their phones. Air marshals describe a “party-hearty” atmosphere. Air marshal kicked off plane after throwing a fit when he was offered only one dinner choice instead of three.

Oddly, when the TSA finally responded to my seven-year-old request, it included its own analysis of the data along with an unsolicited statement.

“The vast majority of FAMs federal air marshals are dedicated law enforcement professionals who conduct themselves in an exemplary manner,” it said. “TSA and FAMS continually strive to maintain a culture of accountability within its workforce.”

The statement also said the agency saw a “significant reduction” in misconduct cases in 2015 as a result of its initiatives. But notably, the agency only provided data through February 2012, even though in my last email exchange with the office last month I requested the entire database.

This has become standard practice for many agencies. By delaying FOIA requests for years, the TSA gets to claim the data it releases is old news. (The agency made the same claim back in 2008, which—because of the data we received recently—we now know wasn’t true.)

So what did the data tell us about misconduct by air marshals?

For starters, air marshals were arrested 148 times from November 2002 through February 2012. There were another 58 instances of “criminal conduct.”

In addition, air marshals engaged in more than 5,000 less serious incidents of misconduct, ranging from 1,200 cases of lost equipment to missing 950 flights they were supposed to protect.

Is that a lot or a little? It’s hard to say because the number of air marshals is classified and the estimates of the size of the force don’t include turnover.

The TSA says the misconduct represents just a “handful of employees.” But concerned air marshals I spoke with said they should all show sound judgment, given that air marshals are allowed to carry guns on planes and must make split-second life-and-death decisions.

Some other highlights found in our analysis of the data:

250 air marshals have been terminated for misconduct; another 400 resigned or retired while facing investigation.
Air marshals have been suspended more than 900 times, resulting in more than 4,600 days lost to misconduct.
The Washington field office had the most incidents with 530 cases, followed by New York with 471, Chicago and Dallas with 373 each and Los Angeles with 363. There were 85 cases at air marshal headquarters, highlighting that in some cases, misconduct has extended to the top brass.

After our story ran in late 2008, Robert Bray, the director of the air marshal service at the time, vowed to create a “culture of accountability” within the agency and raised the penalty for drunk driving arrests to a 30-day suspension.

We now know the number of misconduct cases remained fairly steady, about 600 a year, in the years before and after our investigation.

It’s unclear if the agency got tougher or weaker. Before the story ran, only 4 percent of air marshals who had been arrested received a suspension of 14 days or longer. After the story ran, that number jumped to 20 percent. But at the same time, a much higher percentage of arrested air marshals got off with minor discipline such as a letter of reprimand, a warning or no action at all.

After the story, I continued to talk to air marshals and pursue the FOIA request. Inspired by the Obama administration’s memo on transparency, and armed with new information that there was a specific misconduct database, I filed a second FOIA request in 2010.

This was perhaps a mistake. Rather than respond to my first request, the TSA merged it with my new request.

In 2012, the agency responded. But the TSA only released two columns —one showing allegations against air marshals, the other listing disciplinary actions taken in response. Notably, there were no dates, which would have allowed us to check if the agency’s “culture of accountability” was working.

I immediately appealed. In addition, I filed another FOIA request for the entire database—”all columns and rows.”

Two more years passed. Meanwhile, air marshal director Bray himself became embroiled in a misconduct investigation. A supervisor was accused of obtaining free and discounted guns from the air marshals’ weapons supplier and providing them to top officials, including Bray, for their personal use. In 2014, Bray retired.

Around that time, I partially won my appeal. But the data was still incomplete.

After nearly six years, I had pretty much given up.

Until late December. That’s when an email arrived from TSA telling me my request from 2012 had been sitting in a backlog and wanting to know if I was still interested.

Indeed I was. (The TSA had asked me this question a few times during my pursuit of these records.)

A month later, I had the information I had been seeking. It only took seven years, seven months and 29 days.

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Now That We Know These Disturbing Numbers, Can We Trust Air Marshals?

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The Disgrace of Lamar Smith and the House Science Committee

by ToddWeiland7196 Posted on November 17, 2015

Mother Jones

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The Washington Post writes today about a long-running feud between die-hard climate-denier Lamar Smith and pretty much anyone who says that climate change is real:

The flash point in the feud between House Science Committee Chairman Lamar Smith (R-Tex.) and the National Oceanic and Atmospheric Administration is a congressional subpoena. The congressman, a prominent global warming skeptic, is demanding that the government turn over its scientists’ internal exchanges and communications with NOAA’s top political appointees.

Smith believes this information, showing the researchers deliberative process, will prove that they altered data to fit President Obama’s climate agenda when they refuted claims in a peer-reviewed study in the journal Science that global warming had “paused” or slowed over the last decade.

“These are government employees who changed data to show more climate change,” the chairman said in a statement to The Washington Post. “Americans deserve to understand why this decision was made. Despite what some critics claim, the subpoena is not only about scientists. Political operatives and other NOAA employees likely played a large role in approving NOAA’s decision to adjust data that allegedly refutes the hiatus in warming.”

Over the last few years, harassment of climate scientists via subpoenas and FOIA requests for every email they’ve ever written has become the go-to tactic of climate skeptics and deniers. The purpose is twofold. First, it intimidates scientists from performing climate research. Who needs the grief? Second, it provides a chance to find something juicy and potentially embarrassing in the trove of emails.

In the case of Lamar Smith vs. NOAA, the key fact is this: Smith has no reason to think the scientists in question have done anything wrong. None. He doesn’t even pretend otherwise. He has simply asserted that it’s “likely” that politics played a role in “adjusting” the climate data. But at no time has he presented any evidence at all to back this up.

This is a pretty plain abuse of congressional subpoena power, and so far NOAA is refusing to comply. In the case of private critics using FOIA, it’s a pretty clear abuse of FOIA—and one of the reasons that I have some reservations about FOIA that might seem odd coming from a journalist. It’s one thing to demand private communications when there’s some question of wrongdoing. It’s quite another when it’s just a fishing expedition undertaken in the hope of finding something titillating.

In any case, Smith is a disgrace, and it’s a disgrace that Republicans allow him to chair a committee on science. Smith’s view of science is simple: if it backs up his beliefs, it’s fine. If it doesn’t, it’s obviously fraudulent. This is the attitude that leads to defunding of climate research or banning research on guns. After all, there’s always the possibility that the results will be inconvenient, and in the world of Smith and his acolytes, that can’t be allowed to stand. Full speed ahead and science be damned.

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The Disgrace of Lamar Smith and the House Science Committee

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Two Questions About Hillary Clinton’s Email Server

by CarmeloPerkinson Posted on October 2, 2015

Mother Jones

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Lots of people have asked lots of questions about Hillary Clinton and her email server. That’s fair enough. But I’ve got a couple of questions for the people with all the questions. There might be simple answers to these, but they’ve been bugging me for a while and I still don’t really understand them. Here they are:

One of the most persistent suspicions is that Hillary set up a private server in order to evade FOIA requests. But this has never made any sense to me. What could possibly have led either Hillary or her staff to believe this? There’s simply nothing in either the statute or in the way it’s been applied in practice to suggest that official communications are beyond the reach of FOIA just because they’re in private hands.

On a related note, what was going on in the State Department’s FOIA office? They received several FOIA requests that required them to search Hillary’s email, and responded by saying there was no record of anything relevant to the request. But the very first time they did this, they must have realized that Hillary’s email archive wasn’t just sparse, but nonexistent. Did they ask Hillary’s office about this? If not, why not? If they did, what were they told? This should be relatively easy to answer since I assume these folks can be subpoenaed and asked about it.

Generally speaking, the reason I’ve been skeptical about this whole affair is that the nefarious interpretations have never made much sense to me. What Hillary did was almost certainly dumb—as she’s admitted herself—and it’s possible that she even violated some regulations. But those are relatively minor things. Emailgate is only a big issue if there was some kind of serious intent to defraud, and that hardly seems possible:

Hillary’s private server didn’t protect her from FOIA requests and she surely knew this.
By all indications, she was very careful about her email use and never wrote anything she might regret if it became public.
And it hardly seems likely that she thought she could delete embarrassing emails before turning them over. There’s simply too much risk that the missing emails would show up in someone else’s account, and that really would be disastrous. Her husband might be the type to take idiotic risks like that, but she isn’t.

School me, peeps. I fully acknowledge that maybe I’m just not getting something here. What’s the worst case scenario that’s actually plausible?

POSTSCRIPT: Note that I’m asking here solely about FOIA as it applies to the Hillary Clinton email server affair. On a broader level, FOIA plainly has plenty of problems, both in terms of response time and willingness to cooperate with the spirit of the statute.

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Two Questions About Hillary Clinton’s Email Server

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Here’s Why I Doubt That Hillary Clinton Used a Private Email Server to Evade FOIA Requests

by RobtKirkland Posted on October 2, 2015

Mother Jones

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Thanks to the endless release of her emails, we’ve learned something about Hillary Clinton that hasn’t gotten much attention: As near as I can tell, she’s sort of a technology idiot. She asked her aides for information that she could have Googled in less time than it took to ask. She needed help figuring out how to use an iPad. She didn’t know her own office phone number. She used a BlackBerry. She had trouble operating a fax machine. She was unclear about needing a WiFi connection to access the internet.

In other words, when Fox News reporter Ed Henry asked whether Clinton’s email server had been wiped, and she answered, “What, like with a cloth or something?”—well, that might not have been the sarcastic response we all thought it was. She might truly have had no idea what he meant.

As for setting up a private server with just a single account in order to evade FOIA requests, it looks as though she’s genuinely not tech savvy enough to have cooked up something like that. She probably really did just think it sounded convenient, and nobody stepped in to disabuse her of this notion.

So what was the deal with FOIA? I don’t know, and I suspect we’ll never know. But I’ll say this: there were obviously people at State who knew that Hillary used a private server for email. The folks who respond to FOIA requests are responsible for figuring out where documents might be, and in this case it was just a matter of asking. Apparently they didn’t, which is hardly Hillary’s fault. The alternative is that they did ask, and Hillary’s staff flat-out lied to them and said that she never used email. You can decide for yourself which sounds more plausible.

POSTSCRIPT: After writing this, I decided to do some Googling myself to check a few things. And it turns out that I’m not, in fact, the first to notice Hillary’s technology foibles. Just a few weeks ago, Seth Myer did a whole late-night bit about this.

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Here’s Why I Doubt That Hillary Clinton Used a Private Email Server to Evade FOIA Requests

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CIA Tells “King of the Bros” He Can’t See Bin Laden’s Porn Stash

by GordonGellert Posted on June 10, 2015

Mother Jones

If you were hoping to score a peek at Osama Bin Laden’s pile of smut, arguably the most salacious stuff collected when Navy SEALs raided his hideout in Pakistan, it looks like you’re out of luck: The White House is keeping good on its word to keep the reported porn stash under wraps.

Last month, David Covucci, the self-proclaimed “King of the Bros,” sent the CIA the following FOIA request to view the X-rated spoils of the war on terror:

We at the men’s general interest publication BroBible dot com (one of the nation’s largest websites for men), would like to know what pornographic materials Osama Bin Laden had in his possession at the time of his death.

We are adults. We can handle it. We would like to know what kind of porn the world’s most wanted man jerked it to. Does being under the constant threat of capture require extra stimulation? I imagine it would be hard for him to focus on his dick, so I figure he had to watch some really nasty shit.

Uncovering Bin Laden’s pornography is a matter of great importance to Covucci. The government’s refusal to disclose it, is “fucking bullshit nanny state bullshit,” he recently wrote on BroBible.

Alas, the CIA denied his valiant effort because the porn—if it even exists at all—is classified as “operational,” according to a letter it sent Covucci. Oh, and the agency insists it can’t send “obscene matter” through the mail:

With regard to the pornographic material Osama Bin Laden had in his possession at the time of his death, responsive records, should they exist, would be contained in the operational files. The CIA Information Act, 50 U.S.C 431, as amended, exempts CIA operational files from search, review, publication, and disclosure requirements of the FOIA. To the extent that this material exists, the CIA would be prohibited by 18 USC Section 1461 from mailing obscene matter.

Fist-bump for actually getting a response from the CIA, though!

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CIA Tells “King of the Bros” He Can’t See Bin Laden’s Porn Stash

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