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The Foilies Round 4: Retaliation and Consequences

DEEPLINKS BLOG
March 20, 2015

The Foilies Round 4: Retaliation and Consequences

Open government advocates file requests for public records because it’s not only our right, but our duty as citizens to find out what the government is doing in our name, how officials are spending our tax dollars, what kinds of mistakes they’re making, what problems our communities face, and how we can improve society through policy changes. 

Unfortunately, some public officials interpret transparency as a threat, best answered not with documents, but intimidation, insults, and other forms of retaliation. 

In this fourth and final round of The Foilies—EFF’s Sunshine Week “awards” for outrageous experiences in pursuing public records—we’re focusing on how government agencies (and one rock star) lashed out at citizens and journalists for attempting to unearth unflattering truths. We’ll also cover a few cases where that behavior had consequences.

Chilliest Home Visit

Marshall County Sheriff’s Department (Tennessee)

Alex Friedmann of Prison Legal News was investigating abuses and misconduct in the Marshall County Jail by filing requests for records. That didn’t sit well with the local sheriff, Norman Dalton, who demanded Friedmann show up in person to file the request, which Friedmann pointed out was a clear contradiction of official policy. When Dalton refused to hand over the records, Friedmann sued.

As a local TV station, WSMV, reported:

Not only did the sheriff's office deny him those requests, but Dalton admitted on the witness stand to ordering background checks on Friedmann, calling the [Tennessee Department of Safety and Homeland Security] and even going to Friedmann's house.

Friedmann won his case, while Dalton lost his reelection bid later that year.

The Guacamoia Prize

Jack White

When the University of Oklahoma booked Jack White for a gig, the intrepid student reporters at The Oklahoma Daily filed a brief records request for the rock star’s contract. It turned out the school was paying around $80,000 for the show, but that wasn’t the only cost. White’s rider [PDF]—a list of requests musicians provide in advance of the show—made some bizarre demands, including there be no bananas on the premises and that he be provided with a bowl of homemade guacamole. He even included the specific recipe.  The students published the whole thing.

Jack White didn’t take it well. During the performance he ridiculed the concept of freedom of information and the freedom of press and later his booking company blacklisted the university for future performances with its artists. White then went onto his blog to further chastise the students, writing in all lowercase: 

am i disappointed in young journalists at their school paper? absolutely. but i forgive them, they’re young and have learned their lesson about truth and ethics hopefully.

Obviously the students were well within their rights to see how their tuition is being spent. In solidarity, EFF made some guacamole from the recipe—chunky, just the way White likes it. 

Most Passive-Aggressive Release of Records

San Diego County District Attorney’s Office

In early 2014, a Mexican national and his cohorts were arrested for allegedly illegally funnelling money into San Diego County District Attorney Bonnie Dumanis’ campaign for mayor.  The DA claimed she knew nothing about the donations, saying “I have nothing to hide,” and, indeed, public records requests for communications with or involving the donor turned up very little.

Then, during court hearings, it emerged that Dumanis had in fact written a college recommendation letter on behalf of the donor’s son. Immediately, the press filed requests under the California Public Records Act, demanding the document. Dumanis refused, claiming that the letter was private correspondence, despite the fact that it used her official title and was written on her office’s letterhead.

Only when the press joined together to threaten a lawsuit, did the District Attorney release the letter—but not to the reporters who had asked for it.  Instead, one TV station scored the exclusive by saying they supported her position and promising a friendly interview that would emphasize that she didn’t break the public records law.

Best Tweeted Apology

US Navy 

NBC reporter Scott MacFarlane was seeking records related to the 2013 Navy Yard shooting under the Freedom of Information Act. Then the Navy accidentally sent him internal correspondence in which the staff processing his FOIA discussed their strategy to push back against what they called a “fishing expedition,” including providing him with a “costly” estimate to influence him to narrow his FOIA request. 

Now, to us, this is such a common practice across government agencies, big and small, that we just take it for granted. But what’s surprising here is how the Navy reacted when the memo went public. The Navy ordered a review of the FOIA office, sent MacFarlane a direct apology, then tweeted it out publicly:

Best Comeuppance

Metropolitan Housing Alliance (Little Rock, Arkansas)

The Arkansas Democrat-Gazette filed public records requests with the Metropolitan Housing Alliance, Little Rock’s affordable housing authority, for work orders and tenant complaints for the previous two years. The head of the agency responded with a $16,378 invoice to hire outside contractors to process the request and purchase supplies, something that isn’t allowed under the state’s Freedom of Information Act. The paper enlisted the help of the Pulaski County Prosecuting Attorney Larry Jegley to obtain an arrest warrant from a judge since Arkansas is one of the few places where breaking open records laws is a crime, in this case, a Class C Misdemeanor.

It was the first time in the Jegley’s 23-year history as prosecutor he has had to take it this far. As the newspaper reported:

"Usually, we can work things out for people to get the documents they're entitled to -- that's ultimately what it's all about," Jegley said, calling this instance with the housing agency "over the top," "outrageous" and "absolutely indicative of bad faith on the part of the agency and the responsible individuals." 

Forte pleaded “not guilty,” and the case is set for trial this spring.

For earlier posts from The Foilies:

The Foilies Round 1: Foiled by the Process

The Foilies Round 2: Law Enforcement Accountability

The Foilies Round 3: Ridiculous Redactions and Records Errata

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